La certezza giuridica tra principi e regole nella transizione dal «diritto amministrativo dell'emergenza» al «diritto amministrativo del rischio»

The essay analyzes legal certainty and legality in practice, focusing especially on behavioral rules and functional interference between the powers of the State, to reflect on the model of current institutional structure, in view of the persistent pandemic emergency which has emphasized the role of executive power. In a complex and multilevel regulatory framework, the so-called «liquidity» of the rules reverberates on the activity of the jurisprudence. The manipulative techniques of the so-called prospective overruling and distinguishing, typical of common law systems allow the judge to reconcile the needs of certainty and flexibility within the system. The legislative «service» is a duty in a rule of law where there is the need to restart the economy and regain credibility at an international level, transmitting predictability and stability to the stakeholders who, despite the Country going through an unfavorable situation, decide to rely on it through tangible and intangible investments. The rule of law dictated by the jurisprudence is conditioned by the specific case, even more if the judge is between the «emergency society» and the «risk society», often exposed to the pressures connected to the effects of his decisions on the economy. The jurisdiction can respond, in the current socio-political-economic phase, to the emergence of new needs and related instances of protection, it can compensate for shortcomings of the legislator. It is desirable that this overlapping of roles occurs purely pro tempore.