3 PRIVATE LAW AND PUBLIC

LAW; SOURCES OF PRIVATE

LAW; INTERPRETATION
INTRODUCTION TO THE LEGAL SYSTEM – MODULE I

A.A. 2016/2017 Prof. Pietro Sirena

 PRIVATE LAW AND PUBLIC LAW
Jurisdictions of continental Europe are generally acquainted with the
distinction between private law (droit privé, Privatrecht, diritto privato) and
public law (droit publique, öffentliches Recht, diritto pubblico)

Public law is that part of the law Private law is that part of law in
in which the government as such which the government as such
plays a role does not play a role

The government can act as a private party

• The distinction is somehow rooted in the sources of Roman law and over time
dealt with by (German and French) scholarship
• The distinction became an institutional reality only in 1800, when Napoleon
created administrative tribunals
WHAT IS PRIVATE LAW?
Private law deals with the mutual relations between citizens

civil law (droit civil, Bürgerliches commercial law (droit commercial,

Recht, diritto civile): Handelsrecht, diritto commerciale):
applicable to the generality of legal specifically applicable to enterprises
subjects Companies, fair competition
Contract law, tort law, property law, (antitrust prohibitions), industrial and
family law, inheritance law intellectual property
The Italian codice civile encompasses both civil and commercial
law and has thus reunited private law
 WHAT IS PUBLIC LAW?
• The rise of public law has historically aimed at exempting the State’s
authoritative power from undergoing private law norms (particularly
regards civil liability towards citizens)
• Exceptional in face of private law (the latter is applicable to any legal
relations, public law only to the State while exercising its authoritative
power)
• If the State acts not for the sake of its own authoritative power, but like any
other legal subject, private law is perfectly applicable to its legal relations
• the State is said to act iure privatorum (accordingly to private law)
• E.g. the State may have private properties and, if so, may well rent or
sell them by entering into private law contracts with any other legal
subject
 WHAT IS PUBLIC LAW?

• Administrative law pertains to the executory. It covers the many

interactions between government agents and civilians
• Criminal law deals with the prosecution of crimes (or criminal offences),
i.e. unlawful acts which are punished by the State because of their
harmfulness towards individuals or the community
• Constitutional law lays the State’s foundations, both regards protection of
citizens’ fundamental rights and liberties, and the structural and functional
organization of its powers
• Procedural law regulates the proceedings for the judicial application of
private law, criminal law and administrative law
• Tax law regulates taxation
 MANDATORY AND DISPOSITIVE RULES
Mandatory norms
may not be set aside through an
agreement between their
addressees
Default norms
may be set aside though an
agreement between their
addressees
• Most public law consists of
mandatory norms
• Paramount for public law is the
supremacy of public interest
towards individuals’ interests
• Nearly the entirety of private law
consists of default norms
• A major role is played by default
norms which supplement
agreements concluded by the
parties
SOURCES OF LAW
A legal system comprises not only “primary” rules, but also
“secondary” rules, which aim at identifying, changing and enforcing
the first ones (Hart)
• legal system: certain, dynamic and efficient

The “basic norm” is

secondary rules Rules which deal
typically a secondary
which govern the with the enforcement
rule, which aims at
possible change of of primary ones
identifying primary
primary ones ensure ensure the
rules, thus ensuring
dynamism of a legal efficiency of a legal
certainty of a legal
system system
system
 SOURCES OF LAW
The secondary rules which govern the possible change of the primary ones are
commonly known as sources of law

• Sources of law play a major role in the historical development of a legal order,
since they stipulate what facts or acts are capable:
• to create new rules, or
• to change or repeal those already existing
• They answer to the question whether a particular rule is also a legal rule
• Each legal system is based upon its own sources of law, which are not
effective as such in any other legal system
SOURCES OF ITALIAN LAW
According to the Italian terminology, the term “sources” (fonti) can have
different meanings:
• Sources of production of law are those acts or facts which can produce
a legal rule
• Acts: voluntarily adopted laws that produce a juridical effect because
they satisfy three conditions: of existence, of validity and of efficacy
• Facts: Traditional customs and practices that combine two elements:
one, objective, stability in time; the other, subjective, derives from the
perception that a given behavior is considered to be legally binding
• Sources of cognizance give legal notice about the sources of production
(e.g., Official Journal of the European Union)
 SOURCES OF PRODUCTION
1. The Constitution (Charter and complementary provisions)
2. Statutes/enactments having force of law (leggi, decreti legge, decreti
legislativi)
3. Regional laws
4. Regulations
5. Uses

SOURCES OF COGNIZANCE
Gazzetta Ufficiale della Repubblica Italiana
THE ITALIAN CIVIL CODE
The Civil Code is made up of 6 Books (i.e. Chapters)
Book I: Persons and family
• Natural persons
• Legal entities
• Family law
Book II: Successions
Book III: Property
• Notion and categories of goods
• Ownership rights and powers of the owner
• Lesser property rights on immovable and movable goods
• Possession
THE ITALIAN CIVIL CODE

Book IV: Obligations / Debtor-creditor relationships

• General discipline of obligations (performance and breach)
• Contracts in general
special contracts: sale, rental, provision of goods and services, agency,
bank contracts, insurance, mortgage, etc.-
• Other acts or facts considered as sources of obligations, among which:
• Torts
 THE ITALIAN CIVIL CODE
Book V: Labor
• Professional / entrepreneurial activities
• Employment contract
• Company/ corporate law
• Most of the provisions of the Commerce Code which was incorporated to
the Civil Code in 1942

Book VI: Protection of rights

• Evidence rules
• Personal liability for obligations
• Judiciary remedies
• Prescription
 FILLING LEGAL GAPS
According to a traditional claim of continental legal positivism, a legal system is
both complete and consistent

• It is complete, in the sense that no gaps are to be encountered in its primary

rules, since they provide for any relevant case
• It is consistent, in the sense that no contradictions are to be encountered in
its primary rules, since each relevant case is given just one legal response

any legal system comprises some

however, it is undeniable that, if
secondary rules which are
taken statically into consideration,
designed to fill in such gaps and
any legal system is incomplete
others which are designed to
and inconsistent
solve such contradictions
 ENGLARO CASE
• Eluana Englaro was born on 25 November 1970 and entered a persistent
vegetative state on 18 January 1992, due to a car accident
• Afterwards, Eluana has been nourished by medical staff though a feeding
tube, but her father was intentioned to remove it and put an end to his
daughter's life
• Eluana’s father claimed that, prior to the accident, she visited a friend of hers
laying in a coma and told him that, had the same occurred to her, her will
would have been not to kept artificially in life
Art. 2 Duty to solidarity Italian Constitution
Art. 13 Personal liberty is inviolable
Art. 32 The Republic safeguards health as a fundamental right of the individual
and as a collective interest
ENGLARO CASE
Corte di Cassazione, I section 16 october 2007, n° 21748
The court may authorize the legal guardian to interrupt the medical
treatments (hydration and artificial feeding) that keep alive artificially an
interdicted person lying in a persistent vegetative state, provided that: a)
the condition of vegetative state is ascertain as irreversible, according to
recognized scientific parameters, b) the application is expressive of the
patient's will, drawn from his/her previous statements or by his/her
personality, by his/her lifestyle or his/her beliefs

On 2 February 2009 Eluana was moved to a private nursing home in Udine,

Friuli, and feeding was discontinued
 FILLING LEGAL GAPS
Gaps in primary norms may be filled in by secondary rules authorizing judges
either to create new law or to extend the scope of that already existing

• The first option has been adopted by Anglo-American jurisdictions

Gaps in law are filled No gaps in law really
through discretion by exist, “implicit” law, i.e.
judges (Hart) principles (Dworkin)

• Civil law jurisdictions have adopted normative mechanisms to extend already

existing law to unregulated cases (analogy)
FRANCE – CODE CIVIL
Titre préliminaire : De la publication, des effets et de
l'application des lois en général
Article 4
Le juge qui refusera de juger, sous prétexte du silence, de l'obscurité ou de
l'insuffisance de la loi, pourra être poursuivi comme coupable de déni de
justice

Article 5
Il est défendu aux juges de prononcer par voie de disposition générale et
réglementaire sur les causes qui leur sont soumises
 ANALOGY
Italian law provides for two level of analogy, which are set in a hierarchical
order:
• Pursuant to art. 12 prel. disp. to c.c.,
• if no settled law necessitates a case, then it is to be adjudicated in
accordance with dispositions pertaining to similar cases or to
akin branches of law (analogia legis)
If this mechanism fails to fill in the relevant gap, particularly because no
‘dispositions pertaining to similar cases or to akin branches of law’ are
given…
• If there is still any doubt, the case shall be decided accordingly to the
general principles of the State (analogia iuris)
 Nullum crimen, nulla poena sine lege (There
cannot be any crime or any punishment
ANALOGY unless stated in the law)

Pursuant to art. 14 prel. disp. to c.c., furthermore, (criminal law and)

exceptional norms are not to be applied analogically.

As a matter of fact, the exceptionality of a norm wits that it provides

for cases which are not similar to any other, so that it is not matched
the very basic requirement of analogy

• In many jurisdictions such a norm does not exist

• Main problem: determine in which cases a norm can be considered
exceptional
 Sometimes a combination of analogy and
SWISS MODEL discretion by judges is provided for by law:

Art. 1, 2. and 3. Absatz, of the Swiss Zivilgesetzbuch (ZGB) in force since

1912:
• ‘Kann dem Gesetz keine Vorschrift entnommen werden, so soll das
Gericht nach Gewohnheitsrecht und, wo auch ein solches fehlt, nach der
Regel entscheiden, die es als Gesetzgeber aufstellen würde.
• Es folgt dabei bewährter Lehre und Überlieferung’

If no legal provision is available, then judges shall apply custom and, if also
the latter is lacking, the rule they would lay down in the legislator’s shoes.
In that, commanding scholarship and tradition are to be followed
 SETTLING CONFLICTS OF NORMS
Inconsistences in primary norms, traditionally termed antinomies, may be
solved by secondary rules authorizing judges to apply just one of the colliding
primary norms, which is to identified on the basis of criteria given by law

• Hierarchical criterion: if a norm, which is subordinated in the hierarchical

order of a legal system, collides with another, which is superordinate, the
latter prevails upon the former
• Content-based criterion: if a norm, which has a broader scope, collides
with another, which has a narrower scope, the latter prevails upon the former
• Time-based criterion if a norm: which has been enacted sooner, collides
with another, which has been enacted later, the latter prevails upon the
former
 SETTLING CONFLICTS OF LAWS
Example:
A contract is concluded in Italy between a French party and a German party.
The question arises whether applicable to the contract will be the Italian law,
or the French, or the German

Such collisions of laws are addressed to by a branch of each legal system,

which called international private law

• As regards States which are Members of the European union,

their international private law has been unified through
regulations of the European union
 PRIMACY OF THE UNION’S LAW

INCOMPATIBILITY
BETWEEN A DOMESTIC NORM OF A MEMBER STATE OF THE
EUROPEAN UNION AND A NORM ENACTED BY THE SAME UNION

RULING OF THE ECJ 1964 (CASE COSTA VS. ENEL, 1964):

THE UNION’S LAW SHALL PREVAIL
 THE CONCEPT OF PRINCIPLES
The view of law as a hierarchical order of rules has been mighty criticized by
Ronald Dworkin (1931-2013)
• Need for a less “formalistic” jurisprudence: promoting the best possible legal
response to relevant cases
• To carry out this task, jurisprudence should start not (so much) from “rules”, but
from “principles”
Principles:
• are requirements of justice or fairness, which stand as the best
framework of and justification for legal practices and paradigms
of law which command lawyers’ general consensus of a given
legal system
• embody the “preinterpretive” basis of any decision rendered by
courts
 THE CONCEPT OF PRINCIPLES
According to Dworkin’s view legal positivism would fail in accounting for principles
for (at least) two reasons:
• principles are (the soundest) part of law, but they might not be acknowledged
by a “basic rule”, or “rule of recognition”, since they precede any rule
• While conflicts of rules must be solved in favor of one of them, unless
consistency of the legal system is affected, conflicts of principles leave them
untouched, because, although conflicting, each principle may play a (major or
minor) role in finding the best possible response by law to a relevant case

Hart: differences between “rules” and “principles” are just a

matter of degree, both may be understood as (narrower or
broader) norms in the sense advocated for by legal positivism
CANONS OF INTERPRETATION
Sometimes it is necessary to decide about the proper scope of application of
a rule. The civil law tradition has developped different canons of
interpratation.

• The literal rule (or Grammatical interpretation): the interpretation matches

the literal meaning of of the words in the rule
• The legislative intent (or Historical interpretation): the interpreter reverts
to the intention of the legislator who formulated the rule
• Teleological interpretation (The golden rule): the interpreter tries to
determine the purpose of the rule himself
 EXERCISE
 A rule forbids the presence of dogs in a butchery

Does this rule apply also to guide dogs?

• Literal rule: Guide dogs are dogs. Therefore, a rule about dogs also applies to guide
dogs

• Legislative intent: the legislator created the prohibition of dogs in butcheries in order
to prevent unhygienic situations in food stores. He considered the case of guide dogs
but nevertheless decided not to make an exception

• Teleological interpretation: If a legal decision maker recognizes this interest, but

finds the interest of visually handicapped persons more important, she might interpret
the rule to make guide dogs fall outside the rule’s scope
4 JURIDICAL FACTS,
JURIDICAL ACTS,
LEGAL TRANSACTIONS
INTRODUCTION TO THE LEGAL SYSTEM – MODULE I

A.A. 2016/2017 Prof. Pietro Sirena

LEGAL EFFECTS
The structure of legal rules (recap)
IF-clause: state of affairs which defines when the rule is applicable
THEN-clause: indicates what the consequences are when the rule is applied

NOT ALL RULES HAVE LEGAL EFFECTS!

E.g. What if a classmate does not reciprocate a greeting?

Social rules Legal rules

 LEGAL EFFECTS
How is it possible to identify what events or behaviors have legal
consequences?

There is no ontological criterion to divide what is law from what is not

If a norm provides for a “state of affairs”, then we

are in front of an event or a behavior which have
legal consequences.
If no norm does so, that event or behavior does not
exist for law, however material for society or life it
might be.
 LEGAL EFFECTS
A “state of affairs” provided for by a norm may consist of one single event or
behavior
Most “states of affairs”, however, entail a whole series of events and/or
behaviors and the sanction is only triggered by the occurrence of the entirety
of them

Any event or behavior which is included in the “state of

affairs” provided for by a norm, both when it is simple
and when it is complex, is said to be legally relevant
.
JURIDICAL FACTS
All events and behaviors which are legally relevant are classified as
“juridical facts”
This category is strongly heterogeneous: it embraces events and behaviors
of the most diverse nature.
E.g. Contracts, torts, someone’s birth and someone’s death....

Legal science has proceeded to identify

a number of sub-categories, which might
be able to coherently categorize as
many species of them
JURIDICAL FACTS
Juridical facts are grouped into sub-categories, according to their legal
relevance

A main distinction:

• Bare juridical facts

• Juridical acts
BARE JURIDICAL FACTS
Bare juridical facts are those juridical facts regarded by a norm
irrespectively of any human consciousness and willfulness which
might affect them

Natural events
• Art. 453 c.c.: someone’s death opens the deceased’s succession.

Human behaviours: when capable of triggering legal effects, notwithstanding

unconscionableness or involuntariness
• Art. 1191 c.c.: the debtor who has made due payment cannot impugn the
payment on the ground of his own lack of capacity
JURIDICAL ACTS
Juridical acts are those juridical facts that produce legal effects under
the assumption they have been conscionably and voluntarily kept by a
person

If consciousness or voluntariness lack, such human behaviors do not

produce legal effects.
E.g. Art. 2046 c.c.: he who caused a damage is not liable, when he acted
unconscionably and involuntarily, unless his unconscionableness and
involuntarily were due to his own negligence.

payment tort
(bare juridical fact) (juridical act)
RELATIVITY OF LEGAL QUALIFICATIONS
Any event or behavior, which is regarded as a “bare
juridical fact” by a norm, may be simultaneously
regarded as “juridical act” by another

Art. 1321: a contract, based on a voluntary agreement, is a juridical act

• If one of the contracting party is, e.g., under age, the contract may be
voided (Art. 1425 c.c.)
BUT
When a contract is concluded in order to fulfil a previous obligation to enter
into it, it is a bare juridical fact as far (Art. 1191 c.c.)
• Even when it is concluded by an under aged party, the execution of the
contract makes such an obligation expire
SUB-CATEGORIES OF JURIDICAL ACTS
Juridical acts are those juridical facts that produce legal effects under
the assumption they have been conscionably and voluntarily kept by a
person

This definition proves to be vast (e.g. it is apt to encompass both torts and
contracts, which clearly pertain to highly heterogeneous fields of law).

Further classification:

• Bare juridical acts

• Legal transactions
BARE JURIDICAL ACTS
Bare juridical acts are those juridical facts that derive from conscious
and voluntary behaviors (acts), and whose effects (legal
consequences) are set by the law, irrespectively from the will of the
agent

In other words, anyone can freely decide whether or not to keep a given
behavior, but not to select its legal consequences, which are just those
stipulated by a norm.

E.g.: Torts – a wrongdoer may intentionally cause a damage, but if he does

so, the legal consequences attached to his behavior are set by the norms
pertaining to tort law.
LEGAL TRANSACTIONS
Legal transactions are those juridical facts that attach to a human
behavior those very legal consequences which are (consciously and
voluntarily) envisaged by he who acted.

In other words, anyone can freely decide not only to keep or not a given
behavior, but even to select legal consequences connected to it.
E.g.:
Contracts – by entering into a contract, parties aim at some change in the
rights and duties entailed in their legal relation and get them from the law.
Wills - the testator entitles someone to acquire his inheritance after death, or,
acknowledges a child born outside his marriage, whose family status will be
therefore changed.
LEGAL TRANSACTIONS
Legal transactions are those juridical facts that attach to a human
behavior those very legal consequences which are (consciously and
voluntarily) envisaged by who acted.

This classification of legal act was forged by German legal science of 19th
century through the elaboration of the concept of “Rechtsgeschäft”.

This notion has been adopted by the German civil code,

which provides for a general set of rules pertaining to it
(§§ 104-185 BGB).
LEGAL TRANSACTIONS
The distinction between “bare legal acts” and
“legal transactions” is not acknowledged by all
jurisdictions of civil law.

E.g.

• France

• Italy
 LEGAL TRANSACTIONS
In France, any fact which is legally relevant is qualified either as an acte
juridique, or as a fait juridique.

- acte juridique Legal transaction

Art. 1100-1: Les actes juridiques sont des
manifestations de volonté destinées à produire des
effets de droit
- fait juridique Bare juridical facts / acts
Art. 1100-2: Les faits juridiques sont des agissements ou des
événements auxquels la loi attache des effets de droit
Reform 2016 E.g. Tort: Tout fait quelconque de l'homme, qui cause à autrui
un dommage, oblige celui par la faute duquel il est arrivé, à
le réparer
 LEGAL TRANSACTIONS
In Italy, there is a mismatch between the categories acknowledged by
the codice civile and those acknowledged by scholarship.

- fatti giuridici
e.g. Tort: art. 2043 c.c.: Qualunque fatto doloso o colposo che cagiona
ad altri un danno ingiusto, obbliga colui che lo ha commesso a risarcire il
danno
- atti giuridici
BUT
Italian scholarship is German-oriented: it predominantly acknowledges the
category of “negozi giuridici” (i.e., legal transactions), as opposed to that of “atti
giuridici in senso stretto” (i.e., bare legal acts).
LEGAL TRANSACTIONS
Legal transactions are concluded through a declaration of will (be it
hthrough
a legal transaction,
language, aorparty
by conduct), which is intended to perform a
change in rights and duties of who is acting (the party)

Legal transactions Private autonomy

Any legal subject is given a power to produce

a legal effect on her own patrimony or
her own personality, to the extent to which
the law does not pose her any mandatory
prohibition to do so
A COMPARISON
Bare juridical act
Legal effects are fixed, and
stipulated by the norms pertaining to
them
(“heteronomous”)
Since they are fixed by the relevant
norms, the effects of a bare juridical
act are to be ascertained in advance
and definitely
Legal transaction
Legal effects are stipulated by the
addressee of the norm, through an
act of private autonomy
(“autonomous”)
The legal effects of a legal
transaction are to be ascertained
with regard to each single case, as a
matter of interpretation of the parties’
specific and concrete will
LEGAL TRANSACTIONS
Legal transactions play a major role in private law. Undeniably, they
hconstitute the mosta party
a legal transaction, import category of legal facts and their domain
tends to expand also in other areas of legal systems (criminal and
administrative laws, as an instance).

Contracts Wills Marriage

LEGAL TRANSACTIONS - STRUCTURE
Unilateral Bilateral Multilateral

(e.g. wills) (e.g. sale contracts) (e.g. companies)

Unilateral legal transaction Real effects vs.

mostly produce their own
legal effects when they come
Obligatory effects
into someone else’s
knowledge (not the will)
LEGAL TRANSACTIONS - CONTENT
Patrimonial Non-patrimonial

The party’s or the parties’ will the party’s or the parties’ will
pursue an interest which can be pursue an interest which cannot
economically assessed be economically assessed

Art. 1321 c.c. Marriage

contract is the paradigm of legal It has also a patrimonial content,
transaction with a content which but it is confined to a very limited
cannot be but patrimonial extent and does not properly
characterize it
 Natural facts
SUMMARY
Events in rerum natura

Juridical facts

Events which are legally relevant

Bare juridical facts Bare juridical acts Legal transactions

Juridical facts Juridical facts that derive Juridical facts that attach to
regarded by a norm from conscious and voluntary a human behavior those
irrespectively of any behaviors (ACTS), and very legal consequences
human consciousness whose effects are set by the which are (consciously and
and willfulness which law, irrespectively from the voluntarily) envisaged by
might affect them will of the agent who acted