Caratteri della decisione pubblica di emergenza contemporanea

Pierpaolo Forte109-138

Abstract: Characteristics of the Contemporary Emergency Public Decision

The risk is always topical, and the emergency is always upon us; the management of risk and necessity, natural or social, is therefore among the genetic factors, at the origin of every human aggregate, but historical experience tells us that it can also be used to try to legitimize and make effective inappropriate alterations of the institutional balance. Therefore, if no Sovereign, neither enlightened, nor divine, nor popular, can guarantee immunity from natural and social risks, it is possible to intervene to allow adequate, and not tragic, reactions.

The study therefore tries to illustrate some general characteristics that can be found in the evolution of the treatment of acts in reaction to emergencies, that is, looking more at the forest than at the trees, on the path led by constitutionalism and the rule of law, and trying to demonstrate that, today, no one seems to have the “right of doing any action” that Hobbes found in every phenomenon of sovereign authority, and in particular observing that the legitimacy to intervene exceptionally is no longer based on necessity itself, but on protection of fundamental rights, even when it is a question of having to temporarily limit some of them.

There is still a lot of work to be done, since the contemporary emergency decision is not without risky problems, if only for the tendency to authoritarianism, physiological in lasting forms of government, even those inspired by democracy.