La regolazione strategica dell’Autorità Nazionale Anticorruzione

In the global World, the law has changed. The entangled relation among global policy, legal instruments and economy has favored the spread of a new language, characterized as atypical, flexible and fragmented. The political and democratic legitimacy has left the floor to (procedural and substantial) legitimacy coming from international rules, principles and values. The described phenomenon also affects the public contracts’ regulation. This kind of regulation highly differs from the economic one, as it doesn’t aim to protect the freedom of enterprises but it creates the market itself, introducing the obligation for public administration not to negotiate out of a certain competitive procedure. In the Italian public contracts’ sector, the “Autorità Nazionale Anticorruzione” regulates the market through hard and soft regulation methods, increasingly evaluating the latter. Indeed, in the filed at stake, the use of soft regulation has numerous advantages, because it can coexist with the administrative discretionary power and with the spontaneous adjustments of behaviors referred to as “nudging” (thus overtaking the criticisms made by the supporters of coercive paternalism). The essay examines this dynamic, outlining the importance of strategic regulation in the global framework, and suggests to consider with attention the premises, the ratios, the technics and the consequences of soft regulation as a method of governance, whose potential has not been completely understood yet, at least in the national sphere.