Participation in administrative procedure, public choices and institutes of guarantee: the new role of the ombudsman

This essay sets out to conduct a critical analysis of the institution of "participation" in administrative procedures, as proposed by internal legal culture, i.e. as a range of rights and respective duties that are attributed to guarantee impartiality and transparency in administrative actions. This socio-legal analysis shows that participation takes on and is articulated in rather heterogeneous forms that depend on the characteristics of the administrative activity in question; in turn, this activity varies in relation to the changing attitudes found among a series of fundamental variables: authority vis-à-vis freedom and discretion in applying legal rules vis-àvis the obligation to do so. Sociological and politological critique throws light on a complex link between participation in procedures and how public decisions are made, occupying a space between the critical situation afflicting representative democracy and the advent of deliberative democracy, highlighting a series of risks and paradoxes that can be found across the board in all forms of participation. The essay closes with the suggestion that the ombudsman can be identified as an institution of guarantee capable of reducing the risks of participation and contributing to truly democratising the public administration, because of its ability to provide an effective counterbalance to the discretional exercise of power on the part of public decision-makers or to the lobbying and prevaricating action of the stronger private powers.

Keywords: Participation and public administration, Deliberative democracy, Ombudsman

Marco A. Quiroz Vitale, Partecipazione al procedimento amministrativo, scelte pubbliche ed istituti di garanzia. Il nuovo ruolo del difensore civico in "SOCIOLOGIA DEL DIRITTO " 3/2010, pp 162-180, DOI: 10.3280/SD2010-003014