PARTECIPAZIONE E PROCESSI DECISIONALI PUBBLICI: LA SFIDA ATTUALE DEL COSTITUZIONALISMO

More and more frequently legislators refer to the need to ‘open’ law making processes, promoting a new role for the citizens. In this way, the recipients of norms and policies are expected to become, in different ways, ‘co-authors’ of those regulations which they will refer to and obey. This trend has been supported by the diffusion of 'participatory' instruments in legislative processes, but seems to escape, in some cases, a scientific assessment of the costs, benefits and impacts of such innovations. The reason is to be found, often, in a overly dogmatic legal approach to these instruments (sometimes self-referential). The approach adopted in this tesi aims at subtracting ‘participatory’ instruments from the dogmatism of 'pure law' standpoint (as well as from the dynamics of political propaganda and its communicative strategies, geared exclusively toward obtaining votes and consensus). There are some questions that might be raised: can these instruments increase the effectiveness of law? How do they enable economic development and exercise of rights? What kind of resistances (oppositions, limits of applicability, etc.) do they meet? The implementation of participatory tools, in the European case, occurs frequently interconnected with the notion of 'quality of legislation' (the same notion that includes the so-called "better regulation" and "smart regulation"). Since the early 2000s, European Institutions recognize that citizens have a role to play in consultations within the law-making, for example in analysing the impact of laws, as attested by numerous institutional documents (even in direct reference to the project of consolidation of the ‘multilevel governance model’). The content of these supranational documents is particularly important to understand the role of participatory instruments in the law making of Member States and Regions. One of the trends emerging is unquestionably the ‘regionalization’. A representative example of this type of process can be offered by the Italian case. In Italy the modification of the Constitution in a regionalist direction is the result of a reform which took place in 2001. This institutional change was designed also to ensure regulatory actions that meet appropriate standards in a qualitative and participatory sense (under formal and substantial profiles), so the adoption of the regulatory impact assessment (RIA) – and more generally of participatory instruments – was to become one of the key elements in the regional law-making process. But in fact, in most of the south european regional contexts, the provision (in many cases never implemented) of tools such as impact analysis, consultation, and participatory strategies was the result of a formal (and artificial) attempt of 'Europeanisation' of the Regions, structured by a mere apportionment of legislative and administrative powers. Summarizing, the main problems emerged from the observed case studies, experimentations, laws, and public documents can be synthetized in four critical points: 1) Absence, in the political class, of an adequate legal and institutional culture of participation (the result is an attitude of indifference to the possibility of expanding the use of consultation or, whether a consultation has occurred, indifference towards the outcome of the process). 2) Tension between specialized technicians/bureaucrats and political representatives. 3) Confusion about the role of the consultation, which can be wrongly conceived as mere listening activity, rather than as a structured dialogue. The result is a weakening of the legal effectiveness of the consultation, which remains confined to the political sphere (without producing legal effects). In this case, the risk is a populist use of listening, exclusively aimed to intercept and manipulate the electoral consensus. 4) Confusion between participation and institutional information/communication activities. The first critical point highlights the need for development of a ‘culture of participation’ and this is directly connected to the second critical point detected. Probably, the skepticism of the politicians towards technicians and officials should be sought in their habit to the direct political model, where the role of elected representatives is particularly consistent. Despite this skepticism, the cases analyzed highlight the ability of technicians in favor of a ‘ductile’ opening of the proceedings. On the one hand, indeed, they know how to arrange a ‘structured dialogue’, in order to open the legislative process to the confrontation with the recipients. On the other hand, their knowledge of legislative drafting and legal order can allow that the options emerged in consulting procedures are technically impeccable and suitable for the selection operated by the Legislative Assembly. Both this aspects can contribute to a rationalization of the outcomes of the consultation, and also to search for a balance between ductility and rigidity of the procedure (essentially between its autonomy and the openness to recipients). This balance seems to be lacking, in a similar way, in the other two critical points emerged. It should be pointed out that listening, information and communication are essential elements of participation, but it should be also noted that, although necessary, these three are not sufficient to determine a true participation in the law-making process. If participatory instruments are meant to produce effects on the adoption of a legislative proposal, this erroneous overlap can become a harmful element. This because they may generate (in the recipients) expectations which are then frustrated by the mere communication of the decisions autonomously made by the legislators. Listening, information and communication must therefore be activities constantly part of law- and policy-making processes, but further steps are essential in order to achieve regulations truly responding to recipients’ needs. These four points assume a specific importance also in consideration of the fact (stressed by Heller) that «History reminds us how numerous decentralization initiatives, far from having served the cause of democracy, have led to a subordination of the power of citizens or even to the strengthening of local nepotism» . It seems clear that the insertion of participatory instruments needs to be rethought starting from the regional level, in order to create a multilevel governance able to harmonize not only institutional levels, but also the regulatory processes with the needs of society. According to Teubner, the main question that the current 'constitutional issue' should ask is «how the constitutional theory attempts to respond to the challenges that arise from the two major trends that characterize our era: privatization and globalization» . In the case of globalization, rethinking the multilevel governance on participative basis can contribute in the enhancement of the levels of government, without oppressing local and territorial realities (as bearers of their needs, cultures and conflicts). Participatory tools can produce relevant effects also in counteracting distorsions arising from the privatization of law. This phenomenon requires the enhancement of pluralism in order to oppose the dominance of the private interest of economically stronger actors on the weaker, fragile and underrepresented ones. The goal is the protection of law 1) both from particular interests (according to Habermas) and 2) from the systemic corruption (according to Luhmann). In conclusion, despite some widespread ‘side effects’, the instruments observed can offer several strengths for a concrete and expendable revision of the European multilevel governance (also providing models that allow future similar experiences to avoid the effects of the critical points described). In order to make this adjustment, participatory instruments seem therefore elements to be carefully taken into account. First of all, on the basis of their technical capability in structuring an appropriate 'transition model'. Therefore, it seems reasonable to say that these tools (when purged from their critical points and side effects) can play a leading role in structuring «a flexible model of democracy» able to guide the European multilevel governance from a dimension limited as mere «‘rhetoric’ and ‘process’» to a dimension of «‘idea’ and ‘project’ [A. Febbrajo]».