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NUMERO 24 - 20/12/2017

stato » dottrina - di Nicola Pettinari

 Potentialities and limits in implementing participatory instruments within the lawmaking process

More and more frequently legislators refer to the need to 'open' lawmaking processes, promoting a new role for the recipients and making them, in different ways, ‘co-authors’ of those regulations which they will refer to and obey. In the face of possible benefits, it is necessary to devote much of the analysis to the risk that this kind of instruments could be affected by several dysfunctions (populist manipulation, etc.). The socio-legal  approach aims to describe the key aspects of the role and functioning of participatory tools within the lawmaking processes by attempting to answer questions such as: to what extent can these instruments interconnect social norms and legal norms? Can they make regulations more suitable for real needs? Can they increase the effectiveness and enhancement of respect for the law? How do they enable economic development and the exercise of rights? What kind of resistance (oppositions, limits of applicability, etc.) do they meet? Based on the above, one of the emerging challenges for the contemporary sociology of law might be to try to understand whether the implementation of participatory instruments within the law-making processes may represent a space of ‘reconciliation’ between the perspectives of the scholars who have stressed the importance of participation in deliberative dynamics (e.g. Habermas) with Luhmann’s systemic approach, harmonizing the features of a discursive perspective with those of a systemic one. These two (apparently opposite) positions will be conceptualized in the light of the categories of 'Ductility' and ‘Rigidity’ (of the lawmaking process towards the social sphere), with a specific focus on the role assumed by the tools described in the context of multilevel governance (also in response to phenomena such as globalization and privatization of law)... (segue)



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