CONTRIBUTION TO THE STUDY OF NON-WRITTEN SOURCES

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Antonio Leo Tarasco  
THE PRACTICE IN ADMINISTRATIVE LAW.  
CONTRIBUTION TO THE STUDY OF NON-WRITTEN SOURCES
*
.  
SOMMARIO: 1. the transformations of administrative law and custom. 2. With-not traditionally worked and equity: 
the "scandala" contemporary public law. 3. the concept of fascist System State. 4 Follows.: Republican system. 5. the 
crisis of the nation State. 5.1. the factors. 5.2 Follows.: in particular, the crisis of law and pluralism of sources. 5.3 
Follows:  the relationship  between  law  and  society. 5.4 Follows.:  the  hermeneutic. 6.  the  practice  in  public and 
administrative  law: the reasons for a search.  7.  Practice and recognition of territorial autonomies: crisis of law and 
autonomy legislation of society. 
1. the transformations of administrative law and practice  
"The era of statehood is now coming to the end: on this is no longer the case for spend words. It is not 
the entire superstructure of concepts relating to the State (…) " 
1
 : with these words, Schmitt describes in the 
first decades of the 20th century the end of an era dominated by the Hegelian model of the State. His crisis in 
Italy, was identified by Roman Saints, since the beginning of the 20th century, in the conflictual relationship 
with society, and the tendency of the Stateto engulf the second
2
. Reaction, 
*
This script is the excerpt of chapter I, section I, pp. 23-79, the volume of Antonio Leo Tarasco,The custom in administrative 
law. Contribution to the studyofnon-written sources, Scientific Publishing, 2003. 485. We thank the author and the editor for 
publication granted.  
1
C. SCHMITT, Begriff des Politischen (1932), trad. en. edited by g. MBIT and p. SCHIERA, the concept of political, in the 
categories of ' political ', Bologna, 1972, 90. 
2
Is the reference to the famous inaugural address delivered by SANTIROMANIat the University of Pisa,The modern State and its 
crisis, inRev. ed. Hrsg., 1910, 87 et seq., but now Milan, 1969, 5 et seq. It should be specified that differently,, according 
to c.CHMITTS, Der Hüter der Verfassung, , Buncker 1969 & Humblot, Berlin, trans. en. edited by a. c.ARACCIOLO, The 
guardian of the Constitution, Milan, 1981, part 122. et seq., the "total State" incorporates in itself and expresses at the same 
time, the multiplicity of social bodies. Society and the State coincide, since the latter becomes "self-organization of society". 
The thought of philosopher, therefore, diverges from reconstruction operated by Roman Saints, however, identifies a conflict 
between State and society.  
in the face of the trends of authoritative directoriespublic legal person, signally the tendency of social forces 
to ask themselves as authorities 
3
 , claiming in a role often stifled opposition 
4
 . The State and sources his of 
the right, from the beginning of the twentieth century, began slowly to cede small portions of sovereignty. 
Today,  the  limitations  and  shortcomings  of  the  "perfect"  scaffold  State  have  multiplied  and  nobody 
disputes the glaring evidence. The globalization of markets and the environmental emergency, for example, 
making needed a common policy with other countries that exceed the boundaries of the individual nation 
State, represent only some of the new factors in the crisis of State categories, on which there have been, over 

the years, punctual and acute studies, that this does not claimsynthesize renewing or

. The indisputable fact

is represented by the fact that "the State as holder of the most extraordinary of all monopolies, i.e. monopoly

of political decision, this radiant creation of formalism and of Western rationalism, is about to be

overthrown"

. Next analysisto, I think now we should devise new categories to replace or at least integrate

concepts and institutions of children a conception of the State and its relationship with the citizens now

outdated. If this is read with a relative simplicity, more difficult are the forecasts for the future: If the

collapse of the State is clear, less certain is the system that you will replace this.

Rethinkstatus is not as simple as finding the limits of its current configuration. It is testimony to the

progress of legal sciences following the post-war. Despite – for more than half a century – has been

announced and analyzed the State of crisis and giuspositivismo

– starting from 1945, Italian Jurists

continued on the path of emphasizing legalism legal certainty and positive State

: this evidence that the

ancient beliefs, penetrated a structure cultural, incorporate this and resist even the most lucid analysis and

proposals more authentic.

G. CAPOGRASSI, Reflections on the authority and its crisis (1921), now in Works, vol. I, Milano, 1959, 255-256. On

Capograssi, see the critical essayU.OMARICIP, the individual over the State. The philosophy ofright of Giuseppe

Capograssi, Naples, 1996.

Here the rise of the phenomena of corporatism, which will constitute a further expression of impatience professional social

groups towards the State. On this point,seeANTI S ROMANI, the modern State and its crisis, 23.

Indicative in this respect the words of f. ROSSOLILLO, vocalsNation, n. BOBBIO– N. MATTEUCCI – G. PASQUINO (ed.),

Dictionary of politics, Torino, 1993: "it is therefore expected that the history of nation States is coming to an end and is about

to start a phase in which the world will be organized in large spaces federal politicians. But if federalism means the end of

Nations in the sense defined now, it also means the rebirth, or revitalization, of the nationalities that spontaneous national

stifles or reduces to ideological tools at the service of political power, and thus the return of those authentic community values

whose national ideology is appropriate into gregarious feelings. "

C. SCHMITT , the concept of political, op. cit., 90.

However, despite the foreseeable difficulties, is more than ever required the development of new

schemes and institutions not related to the classical State: Unlike geometry – behind the reflections on the

decline of the State – are likely to lurk folds on the past and unwitting affections to the same model

criticized. There is a particular need to rethink the complexity of legal institutions to 's primarietà 's light

the human person in sorting, rediscovering the personalistic inspiration of the current Constitution

Explosion the the interests of man in the world of the law is evidenced by a series of indexes which

symptomatic cannot keep account: among all the constitutionalisation of the subsidiarity principle, in its

vertical and horizontal joints (art. 118, Cost). Yet, despite the legal and cultural transformation, much of the

conceptual and organizational structures are anchored to the Italian a 19th century idea (the "superstructure

of concepts relating to the State" mentioned Schmitt).

In particular, the complex transformations that invests public law cannot induce to rethink the relevance

of the sources the authoritative directories in administrative law, legal segment traditionally characterized by

tensionauthority-freedomin relations between AR and citizen and now deeply revolutionized in the sense of

democracy and dialogicità in relations between the two poles. So, if they change the principles that inspire

the administrative action towards the enhancement of national as core System's, we must also question the

relevance of the sources of law built on the assumption of a superior citizen, both located on floors

hierarchically ordered

. In essence, the renewed conception of relations betweenpublic and privatetend ( )

matching cannot affect both in the sense of a democratisation of the system of sources of law (laws,

regulations etc.) which, inter alia, in the direction of greater participation of the company to the choices of

P.A.

See, for example, the volume collettaneoLa crisis del diritto, Padova, 1952; G.APOGRASSIC, the ambiguity of contemporary

law, now in Works, op. cit., vol. V 385 et seq.; F.ARNELUTTIC, La crisis del diritto, in Giur. it., 1946, 66 et seq.

SeeP. GROSSI , Italian legal Science. A historical profile. 1860-1950, Milan, 2000, spec. 275 et seq.

On which, see, e.g., a. BARBERA,sub 2 const. art., inCommentary on the Constitutiona cura di g. BRANCA, vol. I, Bologna,

1975, 50 et seq.

In this context, the issue of customary and ruin is incorporated in administrative law as sce upon further

completion of the changes that the entire area of relations between citizens and the Administration,

involgendo a dual level, distinct and connected together: the sources of law in the strict sense ( primarily the

law) and the sources of administrative action (the measure). It is clear that cannot develop the theme of

tradition and ruin of administrative measures without first having broached the analogous problem in relation

to the law, General standardisation tool and the abstract administrative activity is constrained by virtue of the

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