Profili di interconnessione tra principi di analisi economica del diritto e (abuso del) processo amministrativo (Interconnection profiles between principles of economic analysis of law and (abuse of) administrative process)

The application of the economic analysis principles to administrative law constitutes an hermeneutic operation critically evaluated by most of public-law doctrine. Despite this fundamental scepticism, the use of instrumental tools of economic analysis by administrative (even) judge is becoming increasingly common, referred to both the proceeding and the process. The social cost of the process, as a poor resource, makes the object of the present essay unquestionably timeless. The argument of the abuse of the process has been used by the case law and the legislator in public policies aimed at controlling and reducing the costs of the process. The methodological approach followed is historical-reconstructive, comparative, particularly heedful to current rules both from de jure condito perspective and under a jure condendo point of view, as well as in the evolution of doctrine and jurisprudence, especially with reference to recurrent use of the techniques of economic analysis of law. Hermeneutic activity is carried out considerating thesis of c.d. tempered juspositivism (id est: guaranteed constitutionalism), a method careful not to betray the letter of the Constitution but ready to use, in observance of constitutional values, all the spaces left free to the interpreter, in full awareness of the changes in the historical, political, economic and social factors that seem to require special attention to the values of dynamism and efficiency in an economic key, even if prudential criteria. This essay is the first step in attempting to offer a systematic doctrine contribution to the applicability of principles, rules and theories of economic analysis to the administrative process, analyzing in particular the profiles of interconnection between the principles of economic analysis of law and some current issues, selected profiles including the topic of abuse of the administrative process, even speculating, also by principle of balancing of conflicting interests, a compatibility in an economic key and, in a perspective of de jure condendo, a composition of the conflict between the immanent principles of the public law system, always in accordance with the principle of reasonableness. The concluding perspective is of a realistic nature, by necessity to consider the real need for “the management of justice” service as a law resource and also, in particular, to believe in necessary complementary jurisprudence intervention in the absence of legislative helpful action.