Abstract

Having ascertained the need to understand the administrative trial as a judgment preordained for the protection of differentiated and qualified interests, the author critically examines both the so-called normative theory, accused of proposing criteria for the identification of legitimizing positions so demanding as to propitiate real forms of seizure of constitutionally relevant individual interests, and the opposite thesis, also a harbinger of drawbacks, especially where it proposes to indiscriminately anchor access to administrative judgment to the need to protect fundamental personal rights. Reconstructively, the author’s proposed solution puts the common law protection rule back center stage, reinterpreted as the fulfillment of the constitutional duty to protect fundamental rights. The author’s hope is that the proposed reconstructive model, marked by a cautious use of the constitutional rights of the person, is better able to smooth out the contradictions emerging in practice