1. The reasoning of the
judgment
and the administrative judge

2. Romanist doctrine has occupied very little aboutthe motivation of sentences for a
reason quite clear: we do not have many sources.
The conclusion almost universally accepted, was that there was no obligation to the
judgment, not only in Roman law, but in ancient law and ancient-medium law in
general.
Then we move with awareness, along two lines of investigation. the first relating to
the existence of a practice of reasoning, the second pertaining to the obligation of the
motivation the few Romanists who have dealt with this topic specifically argue that
the Roman judges actually have motivated their sentences in a fairly broad. Viski as
we see it, in an article in 1971, refers to sources papyrological proving grounds relating
to the rules of law and applied to the facts of the case.

3. At least Marrone (in his text: contribution to the study of the judgment), at first said
that the sentences motivated were the rule, stating that "in the classical texts with
references to judgments expressed are so many reasons and safe."
Looking at the modern origin of the motivation of sentences, in the end of the
eighteenth century, the French Revolution (1789) and the 16th-24th August 1790
laws, deeply changed the French judicary system, establishing the basis of the modern
justice.
In fact, these laws are considered the modern origin of the motivation of sentences.
As we can see,in the Italian legal system the requirement of compulsory measures of
motivation of a judicial nature is even constitutional (Article 111 Italian constitution,
art.132 paragraph 4 and 134 Code of Civil Procedure, and art. 118 provisions
implementation of the Code).
the obligatory nature of motivation is generally attributed to functions of two orders:
endoprocessual and extraprocessual.
the first function concerns the possibility of a challenge, both in terms of
proposability of the encumbrances, both as regards the greater ease of the review for
the judge ad quem.
The second function instead refers first of allto the possibility of ensuring external
control over the decisions of the judges, in term of protection of the the rights of the
sovereign people to see a guarantee for the principles of legality and "fair trial", and
secondly to that function in common law countries is defined as "moral suasion" of
persuasive legal precedent.

4. returning to a historical reflection, Cicero in several places, emphasizes the theme of
the authority of the court, arising from his social position.
sula is very important to also consider inescapable interconnectedness and
cooperation between magistratp, lawyers and a judge: it is a virtuous dynamic in which
each party, with auctoritas dialogue on the implementation of the law with regard to
the effectiveness of undeniable authority the judgment.
Also to note is that the Roman jurisprudence is characterized by the original
apophatic nature of pontifical right, evolves as leaving out the legal ratio, a gradual
deepening and maturing, which led to the creation of law.
Jurisdiction through history
The jurisdiction of state activities as implementation of rule of law in this case, and all
the bodies entrusted with this function.
In Roman law, was intended to Jurisdiction due to all the faculties which judge was
assigned the administration of civil justice. Until the age of Diocletian, the exercise
ofCivil jurisdiction was characterized by the division of tasks between the magistrate
and that of iudex, chosen by the parties and confirmed by the magistrate. The latter
delimiting the terms of the legal dispute, requiring the judge appointed by him should
have resolved the dispute occurring or not the situation envisaged in the formula. The
judge instead occurred the facts alleged by the parties, and pronounced the sentence
according to the formula prescribed by the magistrate. Iudex could be as a private
individual, who could act as a judge or arbitrator, as a college: the College of
recuperatores is both decemvirilitibus iudicandis (for the causes of freedom), the

5. Centumviri (for petitions of inheritance) , the tresviri capitales seu nocturni. With
regard to the magistrate, the jurisdiction it fell to the king first, and then to praetores
extraordinary magistrates exercising the same functions. In 367 BC the Civil
J.Urbanus was attributed to the praetor, praetor peregrinus was then created, which
was attributed to the jurisdiction in cases between citizens and pilgrims (➔edict). In
municipalities and in the colonies j. was exercised by praefecti dicundo jure and local
magistrates (mayors, quattuorviri). During the Empire, the magistrate used
increasingly decide for themselves the cause directly, without submitting to iudex (➔
cognitio for Extraordinary). Based on cognitio for Extraordinary was also jursdiction
praeses exercised by the provinces. Was based on the same principles to the j.
princeps exercised by virtue of his imperium, both in the first instance is when the
institute was doing appellatio. Judicial duties were then assigned to imperial officials
(praefectus urbi, Praef. Praetorio, Praef. Annonae, Praef. Vigilum), until in came
Justinian law is to establish a hierarchy that descended from the emperor to praefecti
praetorio, to the vicars of the dioceses, rectores to the provinces, to the mayors for
the municipalities. Also in j. criminal, that during the Republican era was exerted by
the Conditions of quaestiones, that every crime attributed to its own court, he was
later to prevail cognitio for Extraordinary.
Feudal age there was a multiplication of j, Resulting in the dissolution of the State.
The quality of the magistrate and the right of j. were united to the possession of the
manor, and there were so many districts of j. many feudal lords, as they coordinated
hierarchically. The j. ordinary feudal differed in high and low, according as he had, or
not, the potestas gladii. The emperor was the supreme judge in all places where his
authority was recognized. Presided in person or by means of the count palatine, the
court Palatine, who worked at his place of habitual residence. In the places from
which the emperor exercised his j was absent. imperial vicars. In the communal and j.
Imperial is actually reduced in increasingly narrow boundaries, while new political

6. bodies, gradually enlarging or consolidating their independence, exert a j. become
increasingly important. The states that were gradually formed, the activity exerted by
judicial organs of different name, while the absolute power of the principles could
turn off to the communal autonomy. It also suffered the j. the Church, which is due
to the complex development of judicial institutions in the Middle Ages. The
framework is simplified since the French Revolution.
The jurisdictionin the modern state
In applying the principle of separation of powers, the j. is one of three basic functions
of the State, together with the legislative and administrative. In a specific sense, is the
power of a given order of judges (ordinary and special, civil, criminal or
administrative) proceedings to decide the proposal. The j. basis in the Constitution,
which states (Article 24) that everyone can take legal action to protect their legitimate
rights and interests and granting exercise of g. the ordinary courts, civil and criminal
law (Article 101 et seq.). The Italian legal system is based on the principle of the
uniqueness of g. according to which the judicial function is exercised by ordinary
magistrates empowered and regulated by rules of court (Article. 102 of the
Constitution) and at the same time introduces some exceptions, providing that the
judicial function may be exercised in cases mandatory, special magistrates, while
placing a ban on set up new ones.
The special judges are: the State Council and other organs of judicial administration to
protect against the public administration legitimate and, in particular matters specified
by law, also subjective rights, the Court of Auditors, in matters of public accounts and
others specified by law, military tribunals, which, in time of war, have the j. in cases
established by law and, in time of peace, for military crimes committed by the armed
forces, the higher court of public waters, in disputes concerning the system of public

7. waters; tax commissions, tax matters.
The lack of jurisdiction into Italian procedure
The jurisdictionis a prerequisite of the case, the lack of which prevents the court to
decide the merits of the dispute, he having to close the ritual process in the presence
of the defect of lack of jurisdiction. In particular, it has defect relative j. in civil
matters when it belongs to a special court, which the Administrative Court, the Court
of Auditors. It has rather the absence of j. absolute when the subject matter of the
dispute belongs to the unique features of public administration, since in this case, no
judge has the power to judge the dispute. Finally, the j. of the ordinary courts and all
the Italian courts will fail if the defendant is not domiciled or resident in Italy, with
some exceptions (Law 218/1995). The lack of j. is detectable on application or ex
officio, in every stage and level of the process, when posed against the government or
special judges (Article 37 CPC). When the j. belong to foreign courts: whether the
defendant is in default, the defect of j. office is detectable, whereas if the defendant
appears to rely on the defect of g. in the first act defensively. Questions of j. may be
decided by the Supreme Court in advance, through the regulation of j., of which art.
41 c.p.c.
We now analyze concretely the problem of the judgment in regard to the
administrative process.
the reasons for the administration: present and future

8. pathology of motivation and formal rigidity:
address the issue of motivation and his condition means first of all refer to the Law of
7 August 241, 1990, on "rules of administrative procedure and right of access to
administrative documents."
Articles 2 and 3 introduce, in fact, important innovations with regard to motivation
and its pathology: the obligation to sanction the conclusion of administrative
proceedings with a decision given within a certain period and the general obligation to
give reasons for the measure, which is two obligations which were previously obtained
only through interpretation.
the same principles espoused by the art. 3 of Sicilian Regional Law 30 April 1991, n.
10.
The role of motivation is modified by the accentuation of the close link between the
procedure and measure where it is necessary to provide adequate legal representation
of the reasoning by which the administration has determined to adopt a
comprehensive system that coincides with the reconstruction of the entire legal
reasoning that led to the decision. motivation, offer through its examination by the
court, the opportunity of control of discretion, exercised in terms of logic, rationality
and fairness.
Traditionally, the need for the motivation born as closely related to the legality of the
act, also relevant for purposes of democratic transparency.
motivation of administrative acts is a valuable and irreplaceable tool for verifying
compliance with the limits of discretion by the administration put in place, precisely in
order to implement the constitutional principle of Article. 113 as well as to put the
current recipients of the administrative courts and monitoring bodies.
motivation, therefore, as an application of the principle of impartiality of

9. administrative efficiency, economy (these are the principles of administrative law), as
well as the guarantor of the certainty of final decision.
compliance with these principles does not arise in contrast to the reconstruction
carried out by the recent case law, oriented in the sense not to demand a vision of a
purely formal obligation to give reasons, consistent with the principles of transparency
and fairness can be derived by art. 97 of the Constitution.
So is possible to achieve a balance between the art. 113 and Art. 97 of the
constitution?
in recent decisions of the Council of State the burden of justification is not considered
complete observance of a fixed and immutable standards previously established in
rigid rules.
is the measure itself that determines the pattern of motivation, variandolo necessarily
because of the effects, ampliativi or restrictive, which is intended to have the legal
rights of recipients, even according to the intensity of the interference of private
interests with the public interest pursued .
pathology of motivation and subsequent integration
one of the cases in which the principle of conservation of acts, free from constraints
purely formal, could eventually be applied, is the possibility of subsequent integration
of the reasons for the contestedwhere motivation is lacking, inadequate or
unreasonable, through arguments and defense production implemented by the PA in
court.
doctrine in this respect there is no unanimous approach and the case law of the State
Council is oscillating.
especially now the need for speed and efficiency are presented as essential
preconditions aimed at breaking down the formal barriers that prevent the judicial

10. confirmation of the reality.
use of liquidated damages and in the next reason for refusal of
silence
it is interesting to note that the institution of the next reason may find useful and
unambiguous application in order to legitimate and refundability of the legitimate
assumption of silence and denial.
just in the phase compensation, the integration of motivation in the judgment is
required in order to provide an explanation for the denial and demonstrate the
absence of damages.
in the event that should occur during the trial a new measure, supported by adequate
motivation and intended to deny the claim of the appellant, it happens that the
application will be declared the proceedings may be less than the interest due, unless
the remedies a new lawsuit against the measure recently adopted.

11. Bibliography
-Manual of Administrative Law
-Manual of Administrative Justice
-Justice web-sitegiustiazia-amministrativa.it
-pdf file 2002 conference by Maria Vittoria Lumetti (state attorney at the district
attorneys of the state of Florence)