Antologia di Diritto Pubblico (ADP) (e-ISSN 2975-2191) is a biannual journal promoted by the Faculty of Law of the University of Trento and the Department of Economics and Business Studies of the University of Eastern Piedmont. The journal offers insight into some relevant topics for the study of public law, also with a critical approach, building on the analysis of some of the classical texts of this discipline.
Constitution, Total War, and Factors of Long-Term Institutional Transformation
The editorial, authored by Professor Fulvio Cortese, introduces the theme of the next issue of the Journal. In particular, the contribution aims to analyse the reflections developed in E.S. Corwin, The Postwar Constitution, included in Id., Total War and the Constitution, Alfred A. Knopf, New York, 1947, pp. 168-181.
Copyright (c) 2026 Fulvio Cortese https://creativecommons.org/licenses/by-sa/4.0
Interpreting Law and the General Principles of the Legal Order
The author analyzes the short essay in which Emilio Betti, in 1943, takes a position on Minister Grandi’s proposal to establish by law the “general principles of the fascist legal order”. Betti raises strong reservations about this, arguing that general principles of this kind cannot be laid down in binding legal rules and that their identification and development belong to the interpretive work of jurists-legal scholars. The concise arguments put forward in the essay are later taken up and extensively developed by Betti in his fundamental General Theory of Interpretation, published in 1955, in the section devoted to legal interpretation. By comparing the two writings, the author of the present essay notes the clear derivation of the latter from the former and their substantial coherence.
Copyright (c) 2026 Paolo Garbarino https://creativecommons.org/licenses/by-sa/4.0
This paper explores Emilio Betti’s perspective on the margins of maneuver granted to the legislator in establishing general legal principles. An analysis of the Author’s thoughts sheds light on his unique position in relation to the Fascist regime.
Copyright (c) 2026 Massimo Cavino https://creativecommons.org/licenses/by-sa/4.0
The General Principles of the Fascist Legal System
The article deals with Emilio Betti’s thought on the general principles of the Fascist legal system, as set out and published in the 1943 volume dedicated by nineteen scholars of the time to Studies on the General Principles of the Fascist Legal Order. After a general introduction, necessary to frame the topic, the Author focuses on the three issues addressed by Betti in his work.
Copyright (c) 2026 Ludovico A. Mazzarolli https://creativecommons.org/licenses/by-sa/4.0
Sui principî generali del nuovo ordine giuridico
This is a reproduction of Emilio Betti’s (1890–1968) study on the general principles of the new Fascist legal order, published in 1943 in the volume Studi sui principî generali dell’ordinamento giuridico fascista, edited by the Faculty of Law and the School of Advanced Studies in Corporate Disciplines of the Royal University of Pisa. In particular, the contribution addresses the problem of the legislative formulation of the general principles of the Fascist legal order, examining the legislator’s authority to identify them, the appropriateness of formulating them, and the content to be attributed to such principles.
Copyright (c) 2026 Antologia di Diritto Pubblico (for this edition) https://creativecommons.org/licenses/by-sa/4.0
This contribution, in accordance with the Regulations of Antologia di Diritto Pubblico, inaugurates the biennial publication of special issues entitled “Classici in collana”. It serves as an introduction to the issue devoted to the interpretation of administrative acts, based on selected excerpts from the monograph by Massimo Severo Giannini, L’interpretazione dell’atto amministrativo e la teoria giuridica generale dell’interpretazione (Milan, Giuffrè, 1939).
Copyright (c) 2026 Fulvio Cortese, Mauro Renna, Vito Velluzzi https://creativecommons.org/licenses/by-sa/4.0
L’interpretazione dell’atto amministrativo e la teoria giuridica generale dell’interpretazione
This is the reproduction of an excerpt from the study by Massimo Severo Giannini (1915–2000) on the interpretation of administrative acts, published in 1939 and republished in 2000. In particular, the contribution highlights the autonomy of the interpretation of administrative acts from the criteria applicable to other acts such as contracts and statutes.
Judicial Interpretation of Administrative Acts Between Flawed Analogies and the Search for Criteria
The essay aims to demonstrate the inadequacy of jurisprudential approaches that employ the criteria of contract interpretation (and sometimes those of the statutes) to interpret administrative acts. The paper highlights, mainly, the use of incomplete analogies by judges and the (consequent) need to identify autonomous tools for interpreting administrative acts.
Copyright (c) 2026 Vito Velluzzi https://creativecommons.org/licenses/by-sa/4.0
The Interpretation of Non-Normative Administrative Acts
The paper examines the issue of the interpretation of non-normative administrative act, drawing on insights from Massimo Severo Giannini’s 1939 work L’interpretazione dell’atto amministrativo e la teoria giuridica generale dell’interpretazione. The essay focuses on several aspects of the interpretation of non-normative administrative acts that remain insufficiently systematized: their distinctive features in relation to the interpretative models of contract and statutes; the relationship between the administrative act as an expression of power and, at the same time, as an instrument for the implementation of the law within the framework of the rule of law; the role of administrative action as shaped by the factual context in which it operates; and the interpretative criteria applied by administrative courts.
Copyright (c) 2026 Sara Spuntarelli https://creativecommons.org/licenses/by-sa/4.0
Rereading Giannini on the Role of «Judicial Practice» in Developing Criteria for the Interpretation of Administrative Acts
This paper re-examines Giannini’s fundamental contribution to studies on the interpretation of administrative acts and criticises the paradigm of borrowing the criteria referred to in Articles 1362-1371 of the Italian Civil Code, on which case law has been fossilised for over a century, highlighting how it lacks a solid foundation and is a source of contradictions and uncertainties.
Copyright (c) 2026 Massimo Monteduro https://creativecommons.org/licenses/by-sa/4.0
The Interpretation of the Administrative Measure from a Procedural Perspective
The essay examines the interpretation of administrative acts from the perspective of administrative judicial proceedings, highlighting the relationship between the judge’s hermeneutic activity and procedural rules. An analysis of the case law reveals two opposing trends: a “pervasive” approach, which leads the judge toward integrative or manipulative readings of the content of the act, and an “abstentionist” approach, which avoids classifying the administrative measure, thereby generating significant uncertainty in terms of judicial protection. A system-consistent interpretation, by contrast, should be grounded in the necessary reference to the administrative procedure, understood as the objective and transparent context within which the administrative act acquires meaning.
Copyright (c) 2026 Pasquale Cerbo https://creativecommons.org/licenses/by-sa/4.0
The Criteria for the Interpretation of Administrative Acts
The paper provides an introduction to the classic – and yet constantly relevant – theme of the interpretation of administrative acts. The author outlines some essential aspects, including those emerging from recent research on the adaptation of administrative measures carried out in various Italian universities, and he focuses in particular on the fact that the legal system does not lay down specific rules for the interpretation of administrative acts, as well as on the criteria most frequently applied by the courts.
Copyright (c) 2026 Giovanni D’Angelo https://creativecommons.org/licenses/by-sa/4.0
The essay to which this issue of ADP is dedicated, originally published in 1939, offers a sophisticated theoretical and historical-dogmatic exploration of the precise meaning of the concept of action in procedural law, addressing the subject through the lens of the relationship between the individual and the State. Characterized by a broadly multidisciplinary approach, the text presents insights that remain relevant and valuable today for constructing a general theory of action applicable to all types of proceedings, including constitutional ones.
Copyright (c) 2025 Antologia di Diritto Pubblico (for this edition) https://creativecommons.org/licenses/by-sa/4.0
The Concept of Action in Constitutional Justice
The notion of action within constitutional justice has been developed by procedural theorists as if it were possible to conceive of a subjective legal position abstractly related to the constitutional legitimacy of acts subject to the Constitution, or, alternatively, as if a constitutional process of liberties could be constructed around the category of prejudiciality. The rationale of a system of constitutional justice lies in determining the degree of movement permitted to a rigid constitution: for a constitution that were perfectly rigid would also be entirely immobile, and would therefore require a merely negative, yet pervasively omnipotent, form of review. In the Italian system, the procedural mechanisms of access and the rules governing constitutional adjudication define both the limit and the foundation of constitutional rigidity. A constitutional court that recognises no constraint other than its own prudence risks encroaching upon the sphere of constituent sovereignty. The concept of action, therefore, cannot be understood as the procedural projection of an individual will be safeguarded by the constitutional order through constitutional justice. Rather, the modalities of access represent the techniques through which the constitutional order contains the potentially boundless expansion of constitutional adjudication. In actions of direct challenge, the Constitutional Court assumes a pivotal role as a means of continuous – and dynamic – verification of the proper alignment between the form of government and the form of state, a relationship that the crisis of political representation has brought into sharp relief. The emergence of a contentious democracy thus links incidental proceedings with direct actions, delineating a dynamic in which the demands for political justice – no longer mediated by ideology or manageable through representative institutions – are channelled into the sphere of constitutional justice. Through this process, such demands are synthesised within a framework that performs a function of nomopoiesis – the creation of legal norms through adjudication. It may appear unsettling, even paradoxical, that the constitutional body entrusted with ensuring that the majority principle, as expressed through representative mechanisms, does not transgress the limits inherent in the form of the state, should find itself performing a (vigilant, reluctant, yet conscious) function of substitution. Such a function arguably betrays the Court’s foundational mission, yet also reflects the current condition of constitutional democracy.
Copyright (c) 2025 Gian Luca Conti https://creativecommons.org/licenses/by-sa/4.0
From the Relativity of the Concept of Action to the Relativity of Administrative Justice
This paper revisits the longstanding dilemma concerning the objective or subjective function of the administrative process, underscoring how Calamandrei’s relativistic perspective encounters the “absolutes” codified in constitutional principles, which require the jurisdictional function to be oriented toward the protection of individual legal positions. Despite some resistance to fully aligning administrative process with the constitutional model – as suggested by the persistence of the term giustizia amministrativa and by enduring objectivist traits in jurisprudence and scholarly reconstructions – the analysis proposed here calls for emphasizing the bidirectional character of the principle whereby procedural mechanisms serve substantive law. The recognition that individual legal interests in relations with the public administration are protected only when they are recognized by the legal system – according to the legal regulation of public power – makes it possible to capture the specific features of administrative law without subordinating the process either to the protection of the public interest or to a generic interest in objective legality. From this perspective, even the ex officio powers of the administrative judge are aimed at ensuring procedural equality between the parties, and therefore can be fully integrated within a general procedural model that preserves a subjective orientation.
Copyright (c) 2025 Chiara Cudia https://creativecommons.org/licenses/by-sa/4.0
The paper starts from some initial ideas offered by Piero Calamandrei’s 1939 essay La relatività del concetto di azione. It analyses some current profiles of the administrative judicial proceeding, focusing in particular on one of the possible problematic issues, the impartiality of the judge as a fundamental component of due process (art. 111 of the Constitution). Among the various stimuli arising from recent trends in jurisprudence, following the issuance of the 2010 Code, two seem very significant regarding the “role” of the administrative judge in the process; they are situated at different levels: the judge’s decision-making power and the procedural investigation. The author’s opinion is that the impartiality of the judge identifies a principle co-essential to the exercise of the judicial function, which also involves the overcoming of any conception that attributes “special” protection to the public interest within the administrative judicial proceeding.
Copyright (c) 2025 Giovanni D’Angelo https://creativecommons.org/licenses/by-sa/4.0
Instructions for Use of the Principles of Any “New” Legal Order
The editorial, authored by Prof. Silvia Niccolai, introduces the theme of the next issue of the Journal. In particular, the contribution aims to analyse the reflections developed in E. Betti, Sui principî generali del nuovo ordine giuridico [On the General Principles of the New Legal Order], included in Studi sui principi generali dell’ordinamento giuridico fascista, Pacini Mariotti, Pisa, 1943, pp. 321-331.
Copyright (c) 2025 Silvia Niccolai https://creativecommons.org/licenses/by-sa/4.0
The editorial, authored by Professor Marco Magri, offers a preview of the theme of the upcoming issue of the Journal. It focuses in particular on an analysis of the reflections developed by Piero Calamandrei in La relatività del concetto d’azione, in Riv. dir. proc. civ., 1939, now also in Id., Studi sul processo civile. Volume quinto - Teoria generale e metodo. Questioni di dottrina e di giurisprudenza. Legislazione comparata (1938-1943), Padova, Cedam, 1947, pp. 1-26.
Copyright (c) 2025 Marco Magri https://creativecommons.org/licenses/by-sa/4.0
Notes Towards Vittorio Emanuele Orlando’s Legal Theory of Political Representation
The contribution is dedicated to the Vittorio Emanuele Orlando’s legal theory of political representation, as presented in the essay De la nature juridique de la représentation politique, published in the Revue de Droit Public et de la Science Politique in 1895. In this perspective, the essay analyzes the main passages through which the critique of the theory of the political mandate and the principle of popular sovereignty is developed by Orlando; in doing so, the paper dwells on his conception of the political representation – intended as an act of designation – by investigating its relationship with the legal doctrine of the 19th and 20th centuries and, then, by highlighting its limits in front of the democratic principle claimed by the Italian Constitution.
Copyright (c) 2025 Massimiliano Malvicini https://creativecommons.org/licenses/by-sa/4.0
The Everlasting Crisis of Political Representation
Vittorio Emanuele Orlando’s writing that is commented on here still presents, 130 years later, insights of great interest. Orlando traces the legal foundation of representation in the function of the electoral body to select – and thus elect – the best candidates, understood as the most capable. In this sense, representation appears, at first glance, perfectly homogeneous with the dynamics of the mono-class State of liberal imprint; however, it is Orlando himself who recognises that the role of the emerging political parties is not secondary and that the ideological orientation of the electorate overlaps with, and complements, the choice of the best on the basis of a parameter of ability. If representation does not respond to this function of selecting the most capable, it is destined to enter a crisis without being able to fulfil the premises on which it is founded.
Copyright (c) 2025 Andrea Gratteri https://creativecommons.org/licenses/by-sa/4.0
The Legal Basis of Political Representation
The contribution, starting from Vittorio Emanuele Orlando’s essay on the legal foundation of political representation, critically retraces the author’s thought. It highlights, in particular, how the aristocratic conception of representation presented in Orlando’s work is not compatible with the 1948 Italian Constitution and, indeed, is clearly rejected by it.
Copyright (c) 2025 Adriana Apostoli https://creativecommons.org/licenses/by-sa/4.0
Del fondamento giuridico della rappresentanza politica
The contribution of Vittorio Emanuele Orlando offers a critical analysis of the theory of the political mandate as the legal foundation of representation. The author rejects the conception of the relationship between voter and elected representative in private law terms, according to the mandate model, asserting that political representation does not stem from a delegation of power from the voters to the elected, but rather from an institutional function governed by the Constitution.
“Fiduciary” Representation and Representation “in the Political Sphere”: Observations on an Essay by V.E. Orlando
This editorial, authored by Prof. Fulco Lanchester, introduces the theme of the next issue of the Journal, In particular, it aims to analyze the reflections carried out in V.E. Orlando, Del fondamento giuridico della rappresentanza politica, in Id., Scritti vari di Diritto pubblico generale (1881-1940), coordinati in sistema, Milan, Giuffrè, 1940, unaltered reprint 1954, pp. 417-456.
Copyright (c) 2024 Fulco Lanchester https://creativecommons.org/licenses/by-sa/4.0
Between “Pure Theory of Law” and Legal History
This paper proposes a historical-juridical reading of Kelsen’s essay on public and private law, in a double sense: as a reconstruction of the meaning that this distinction had in the first decades of the 20th century, and as an analysis of its disputed origins, not only in the context of Roman law but also in the Greek legal culture.
Copyright (c) 2024 Emanuele Stolfi https://creativecommons.org/licenses/by-sa/4.0
This contribution aims to reflect on both the usefulness and inactuality of Kelsen's thought, delivered in his 1924 essay on public law and private law, moving from the specific perspective of comparative private law. After noting the importance of the Kelsenian critique with respect to the thesis of the ontological separation of public and private law, which is strongly rooted in European-Continental culture but absent in other experiences, the article reflects on the anti-ideological scope of Kelsenian thought, studying its implications for private law theory. In the last part, the contribution reasons about the changing contexts, which on the one hand make the “grand partition” increasingly and on the other hand attract the attention on the transformations of the concept of democracy – as originally employed by Kelsen – relevant for the analysis of private law relationships.
Copyright (c) 2024 Giorgio Resta https://creativecommons.org/licenses/by-sa/4.0
The journal has chosen to present readers with an essay of undeniable significance. First and foremost, this is due to its author, Hans Kelsen, a remarkable thinker of the twentieth century and beyond. The discussion will focus on three key aspects of Kelsen’s reasoning: his critique of the use of the public-private law antithesis, his conception of administration as law execution, and his related theory of administrative acts. Additionally, it will evaluate certain arguments Kelsen does not address, which pertain to the tools administrations utilize to achieve the interests assigned to their oversight.
Copyright (c) 2024 Giacinto della Cananea https://creativecommons.org/licenses/by-sa/4.0
This essay by Hans Kelsen, included in his 1925 work Allgemeine Staatslehre and reproduced here in a previous Italian translation, analyzes the distinction between public and private law, challenging the traditional dichotomy between the two categories and highlighting the uncertainty surrounding the subject matter of this division. In the course of the argument, the author compares the two spheres, examining traditional conceptions of public and private law in relation to the concepts of the legal order and the rule of law.
Copyright (c) 2024 Antologia di Diritto Pubblico (for this edition) https://creativecommons.org/licenses/by-sa/4.0
The article introduces the theme of the upcoming issue of ADP. Specifically, it aims to illustrate the relevance of the reflection carried out by Hans Kelsen (1881-1973) in the well-known essay on public and private law, translated into Italian and published in 1924 within the Rivista Internazionale di Filosofia del Diritto [International Journal of Philosophy of Law].
Copyright (c) 2024 Bernardo Sordi https://creativecommons.org/licenses/by-sa/4.0
Federal Models of Government in the Constitutional Framework of the Regional State
The essay traces the essential steps of Italian regionalism. In particular, it dwells on the relationship between federalism and regionalism and concludes that the regional State model can find its fulfilment in a federal government policy.
Copyright (c) 2024 Massimo Cavino https://creativecommons.org/licenses/by-sa/4.0
Some Reflections on the Development of Our Regionalism, Starting From Gaspare Ambrosini’s Regional Model
The essay recognizes the fundamental role of Gaspare Ambrosini in the adoption of the regional model by the Italian Constitution of 1948. The author points out, however, that it is not certain that it was the weakness of this model itself, or the Constitutional reform of 2001, with its inclusion of “federal-inspired” characters, that caused the lackluster results of the regional experience as a whole, due rather to the way in which “Italian-style federalism” was implemented. A solution could be represented by the definitive transition of our system into a cooperative regionalism, which, however, is now threatened by the process of differentiated autonomy inspired by a model of asymmetric regionalism that the 2001 reform opened up also to ordinary regions, but which risks, if not implemented in a balanced way, to increase inequalities.
Copyright (c) 2024 Claudia Tubertini https://creativecommons.org/licenses/by-sa/4.0