This paper aims to highlight some of the problematic aspects of the establishmentof the Fourth Section of the Council of State in 1889 and the liberal valueof Crispi's reform in bringing the Italian legal system into the mainstream ofadministrative justice. It was necessary a compromise with the formal survivalof the law of 1865, which was based on the opposite principle of judicial monism,according to the tradition of French liberals, such as De Broglie, and theBelgian model. But it was an impossible compromise, so the fees paid to the lawof 1865 were largely apparent. It was apparent that the Fourth Section had anadministrative and non-jurisdictional nature, as well as the idea that the jurisdictionof the ordinary court, laid down in Law 1865, was not touched and thatSection IV would only constitute an addition to the system of protection againstpublic administration. It was also apparent that the Fourth Section could nothave judged the discretionary power of the public administration. There were,on the other hand, real fees, paid to the law of 1865, since no full imitation ofthe French model was possible: the Fourth Section was born with a generalpower to annul administrative acts for violation of the law, incompetence andabuse of power, but not even with the power to compensate for the damage,which was only recently recognized, so that it was not possible to develop, aswell as in France, a regime of public law of the liability; the conflict betweenjurisdictions was decided, even today, by the United Sections of the “Corte diCassazione” and not, as well as in France, by a mixed-composition court; thegame of appearances was taken seriously by the administrative doctrine with ahigh theoretical cost and with a problematic representation of our system to foreignacademics. One particular event was that of the so-called "giudizio di ottemperenza",which was born to enforce the judgments of the common judge,but which instead became a way for executing the decisions of the same administrativejudge, lacking in the other dualist systems. If, finally, the political profileof Francesco Crispi, one of the greatest statesmen in Italian history, is subject tocontroversial discussions, one cannot question the fact that the reform of 1889,thanks to the establishment of an administrative court, in according with Frenchtradition, has contributed decisively to strengthening the protection of citizensagainst public administration.
|Numero di pagine||14|
|Rivista||P. A. PERSONA E AMMINISTRAZIONE|
|Stato di pubblicazione||Published - 2017|