DI MARCO Q. SILVI
ABSTRACT – In this paper I investigate, from a meta-jurisprudential account, the so-called theory of implicit powers, reproposed by Italian administrative judges and criticized in various ways by public law scholars, with reference to the normative powers of the independent regulatory authorities (I restrict my investigation to the activities of “Arera”, the regulatory authority in the energy and environment sectors). To this end, (i) I will use the reflections about unexpressed norms proposed by Riccardo Guastini’s analytical realist theory of interpretation; and (ii) I will verify how the theory of implicit powers has been concretely employed in the administrative judge’s rulings on Arera’s normative acts. My investigation aims to show, firstly, the fruitfulness of the realist theory of interpretation; secondly, it should bring out the argumentative structures of the theory of implicit powers and (above all) of the various critical doctrines, revealing their ideological assumptions and political aims.
KEYWORDS – Theory of Implicit Powers – Administrative Law – Regulatory Independent Authorities – Legal Reasoning – Unexpressed Norms – Analytical Realist Theory of Interpretation