Potestas v. Potentia: l’utilizzo della condizionalità in ordinamenti compositi

Abstract

Spinoza, in his “Tractatus Theologico-Politicus” identifies two ways of exercising power: potestas and potentia. The first concerns the exercise of power through the authority to produce regulatory acts; the second concerns the exercise of power through the use of resources, where the state does not have a monopoly of regulation. Among the many phenomena that contribute to the transformation of the exercise of power in a post- Westphalian global context, there is the marginalization of potestas and an increasing use of potentia. This is particularly evident in multilevel contexts, both federal and supranational. An interesting manifestation of this trend is the development of conditionality regimes: the use of
leverage financial by the central level – in areas in which the latter does not exercise competences – in order to condition the legislative choices of the “subordinate” level of government. The legislation adopted by the latter is hetero-directed by the intervention of the central government, with all of them the consequences in terms of accountability, representation and separation of powers. The contribution intends to analyze this phenomenon in a comparative perspective, looking at the American experience - where the regime of conditionality emerged in all its problems in cases such as the Obamacare and where the Supreme Court developed the doctrine of “unconstitutional conditions” - and experience of the European Union, where we find different applications of conditionality - from human rights conditionality, to the economic one, up to recent rule of law conditionality.