Acerca de algunas cuestiones que debaten civilistas y administrativistas en torno a la responsabilidad patrimonial del Estado

Abstract

In Spain, as well as in Latin America (and particularly in argentina), the matter of state liability has prompted serious debate and disagreements between civil and administrative law experts. This paper aims at identifying the main topics that divide these scholars (who are linked by an undeniable tradition) and, at the same time, visit ideas and criticize theories that the author deems erroneous, yet acknowledging that —at least within public law— there is a certain unity in the principles of state liability,once limiting the analysis to the field of the so-called extracontractual (tortious) liability. On that understanding, the idea of «unlawfulness» (antijuridicidad) is subject to a severe criticism, for it is considered void of meaning and thus ineffective; hence proposing that Spanish and Argentinean legal systems retain the classical components that shape the theory of state liability (in the extracontractual area), stressing the idea that both legal doctrine and judiciary, instead of discussing whether such liability is subjective or objective, ought to focus on the attribution factors, titles of allocation, or causes, according to the current doctrine in each legal system, dividing the two main types of liability (due to the normal or abnormal functioning, in the Spanish model, and due to the legitimate or illegitimate activity, in the Argentinean one).