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  • Back to Government?The Pluralistic Deficit in the Decisionmaking Processes and Before the Courts
  • Fulvio Cortese, Ph.D., Marco Dani (bio), and Francesco Palermo (bio)

"Yesterday, law was such an easy game to play...."

In periods of transition, it is common for lawyers to be asked, in light of an allegedly overriding reality, to critically revisit the table of contents or categories of their discipline. In such periods it is also normal for the scientific debate of the law to be pervaded by a deep sense of uneasiness. The physiognomy of the law is, at least to a certain extent, to drive rather than to follow the evolution of reality. Accordingly, it is a symptom of pathology if reality systematically departs from rules or categories still in force. Nonetheless, law is everything but a stable artifact. Only in the easy cases does its evolution comply with the procedures that the law itself provides for its amendment. In the other cases, namely when the reality constantly deranges the rules or the legal categories and imposes itself as dominant, it is up to the science of the law to decide either if (and how) the traditional categories have to be reinforced or if (and how) they are required to be updated, accommodating the law to the reality.

An example of this uneasiness emerges from the articles hereafter published as a result of a conference held at the Faculty of Law of Trento, Italy, in June 2004. The debate started from the broadly shared assumption that the performances of the traditional domestic circuits of representative democracy are increasingly challenged when a number of actors do not perceive they are properly involved in the regulatory (legislative and administrative) decisionmaking processes and before the courts. As organizers of the conference, we labeled this reality the pluralistic deficit, and we asked each of our guests to deal with this issue from the perspective of his or her highly differentiated academic background.1 [End Page 409]

This variety is reflected in the multiplicity of perspectives through which the theme has been developed. Nevertheless, the ticklish dilemma emerges in most of the contributions between (re)empowering and revitalizing the traditional democratic institutions and political circuits, and devising alternative forms of representation considering a reality where the actors not (or not properly) involved seem to prefer original and often informal practices to influence the decisionmaking with their own interests.

Quite provocatively, we decided that this unresolved tension between the traditional foundations of government and the inexperienced promises of governance could be expressed by the title "Back to Government?" This evocation of a return was intended to reveal the sense of homesickness felt by European continental public lawyers for having lost (inevitably?) some of their certainties in the current, increasing move toward governance-based-as opposed to formal, government-based-solutions.

At the same time, aware as we are that a mere reestablishment of old categories is not only hard to achieve, but also likely to be perceived as regressive, outdated, and ineffective, we did not organize a conference simply to convey nostalgia for a lost world. Critically, we address the issue arguing that government can still return to the point where its core value, the need for a prescriptive legal order, is reinforced. But how can the changes that have occurred in the "underworld" of our legal systems be reflected in a constitutional framework of governance?

Starting from these underlying questions, a number of scholars from different legal disciplines, as well as from different legal traditions, have investigated the evolution of how decisions are made in a number of selected areas of law.

Given the broad scope of the research and the countless possible examples of an increasingly complex system of governing legal and social phenomena through government and governance, we have tried to prepare a rather simple framework for the analysis. Going "back to the basics," we have divided the contents into legislation, regulation and administrative law, and judicial adjudication, and we examine these in the United States, in European Union Member States, and in the European Union itself. By so doing, the emergence of new trends in decisionmaking in the three traditional powers has become rather clear...

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