Quando il giudice diventa il consulente giuridico del governo : il ruolo del Consiglio di Stato nella politica dell’esecutivo in prospettiva comparata

With the exception of few important contributions (Mény 1994, Righettini 1998, RoseAckerrman and Lindseth 2010) the study of the relationship between administrative courts and the executives appears under-investigated from a political science perspective. Administrative courts supervise the lawfulness of government acts and, as a sanction of their control, they can declare administrative decisions void. In the majority of continental European countries, the judicial review of administrative acts is provided by courts organized in a separate system within the judiciary, parallel to civil and criminal tribunals. Less well known is that administrative courts are also, in some countries, involved in the drafting of the administrative acts. In this paper we analyze in-depth the Italian case by considering the interaction between governments and the Council of State, which is the highest administrative court and the most important consultative body of the government. Such analysis sheds light on the political conditions under which government actors decide to avail themselves of the services of the Council of State as advisor. The great variety of the political conditions that have characterized Italy during the last thirty years and the dual role played by the Council (as judge and advisor), allows us to use the Italian case to put forward plausible hypotheses about the country difference in the level of involvement of the administrative courts in executive politics.