L’insindacabilità degli atti del potere politico: quando “separazione dei poteri” e “tutela dei diritti” entrano in tensione

The inviolability of political power acts: when "separation of powers" and "rights protection" come into tension

Abstract

The inviolability of political power acts: when "separation of powers" and "rights protection" come into tension - The scope of this paper is to demonstrate that constitutional and administrative justice (that are the objects of this analysis) present the significant common trait of being the product of a regression of the inviolability of political power acts. For this purpose, the article offers a counter-classification of the spaces subtracted from controls over the administrative acts and the laws. At first, the work describes overcoming the inviolability of administrative and legislative acts, but it will also describe its survival in some legal systems and the "upward shift" of inviolability towards constitutional rank laws. Then, the paper analyses the areas of sectorial inviolability attributable to the act's political nature or specific exclusion clauses of jurisdiction (e.g. prerogative powers, political question doctrine, ouster clauses). Finally, the paper illustrates further solicitation for the enlargement of judicial control from the supranational sphere, particularly the European area.

Keywords: Administrative justice; Constitutional justice; Rights protection; Separation of powers.