The Interaction between Private and Public Actors: Traditional Principles versus New Trends<br>A Comparative Analysis

Abstract

Public law has changed markedly over the last two decades, a phenomenon which is attributable to various causes. This paper offers a brief overview of the state of the Italian administration and its relationship to citizens and civil society, in order to explain them to a non-Italian reader. The traditional top-down Franco-Napoleonic pattern of public administration highlighted the superiority of the administration over all other public powers and a fortiori over the citizens. Can a different (bottom-up) model of public administration be individualized and what are its main features? To better evaluate these trends, a comparative analysis with a federal system inspired by a common law culture – such as the USA – will be carried out. The participatory and negotiated elements in the Italian legal system will be compared with the fair procedure concept in the US system of administrative law. This research will show that the ‘traditional model’ is very much the dominant one in both cases. However, there are indeed instances of a bottom-up model, though these seem to differ in context, content and form. The outcome of these changes is that a mixed model situation arises: the traditional model is infused with dialogue-type elements. The Italian legal system should learn from the American experience. Both negotiated rule-making and environmental mediation are examples of a compromise between the traditional and the dialogue model. They can be viewed as concrete proof of the slow but inexorable evolution of the traditional model towards one of dialogue

Keywords

• democracy
• Italy and USA
• new forms of co-operation
• comparative constitutionalism
• dialogue between civil society and public actors