Motivation of administrative acts and judicial decisions between guarantee and legitimation. Similarities and differences.

The administrative act and the judge decision have one element in common: to be legal and legitimate in the eyes of citizens they require a motivation. The general “function” of guarantee it’s the same: motivation enables to reconstruct ex post the considerations of fact and law that determine the decision adopted (be it judicial or administrative). According to the theories on the separation of powers, the decision of the courts cannot replicate the public administration’s one, unless accept the risk that the judicial review turns from an instrument of legal control to a repetition of the administrative power. Finding the border between a self restrained judicial motivation on a unlawfull act and a decision exceeding the borders of jurisdiction becomes a question of constitutional and democratic equilibrium. In Italy, the issue looks at the judiciary accused of substitution in administrative activities, elsewhere it may concern the submission of court rulings under political control.