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Public Law - 1 PDF
Public Law - 1 PDF
(I)
(A.Y. 2018-2019)
• National and supra-national legal systems. The State into the international framework. International law
and EU law.
• Subjects. Subjective legal positions. Subjective Right and Legitimate Interest. Legitimate expectation.
Reliance.
Sources of Law
• Formal and informal sources of law. The ongoing changing in the legal order: soft law and informal
measures. The private regulation.
• Sources of law. Definitions. Sources of production and sources on the production. Notice and legal
cognizance.
• Source of production: act sources; fact sources; direct and indirect sources; intra-ordinem and extra-
ordinem sources.
• Sorting the sources of law: chronological principle; hierarchical principle. Competence and specialization
principles.
• Principle of the law-making process. Rule of law and due process of law (2).
• The Constitution.
• Constitutive power.
• Other constitutional sources. Laws amending the Constitution; other constitutional acts. Constitutional
conventions and const. customaries.
(… Sources of Law)
• EU sources of law.
• The Treaty on European Union - The Treaty on the Functioning of the European Union (TEU-TFEU).
• The Charter of Fundamental Rights of the European Union (2009).
• Derived EU sources: Regulations; Directives; Decisions.
• Other (formally not binding) measures: opinions and advisories; recommendations; guide-lines; etc.
• Regional Laws.
• Secondary sources.
• Executive Regulations. The rule-making procedure of the secondary Sources.
• Limits (to the regulatory power) by Statutory Reserve.
• Soft Law.
• Substantive not formally binding rules.
Form of State and Form of Government
• Classifications based on the relationship “sovereignty - people” (Absolute State; Liberal State; Socialist
State; Constitutional State; Representative Democracy) and upon the relationship “sovereignty - territory”
(Unitary State, Regional State, Federal State).
• Classifications based on the “allocation of fundamental powers” (Constitutional monarchy, Presidential
system, Parliamentary system, Semi-presidential system; etc.).
• The Electoral body. Constitutional principles. Electoral Systems. Institutions of direct democracy.
• The Parliament. The legislative power. Representative principle and legislative power.
• Bicameral and mono-cameral systems. Equal and not-equal bicameralism. The Chambers of Deputies.
The Senate of the Republic. Parliament’s joint session.
• Parliament’s powers and functions.
• Status of the Members of Parliament. Parliamentary groups.
• Legislative Commissions and other committees.The cognitive activity. Inquiries.
• Specific laws. Amnesty and pardon. State’s Budget. Ratification of international treaties.
• Functions related to the EU.
• The Government. Mandate and executive power.
• Formation process. Political confidence. Constitutional provisions and constitutional customaries.
• Government's crisis.
• Essential bodies. President of the Council of Ministers. Council of Ministers. Ministers. Not-essential
bodies. Boards and committees.
• Auxiliary bodies (CNEL, Council of State and Court of Auditors).
• Executive power and the Administrative State. Constitutional principles of the Administrative State.
Separation between policy-making process and public offices. The (ongoing) reform of the contemporary
Administrative State.
• The President of the Republic. Constitutional Status of the Office. Checks and balances.
• The election process. Office requirements and term.
• Presidential functions related to fundamental State’s powers. Presidential Acts. Countersignature.
• Presidential crimes.
**
• Case Law
Law and the legal system
Introduction
• Whenever humans enter into forms of coexistence with others, a legal system is
created.
The fundamental trait of such system is related to its social dimension according
to the institutional theory.
[=> ubi societas, ibi ius ]
This theory is essentially based upon the concept of the “social group” .
[=> subjective criterion ]
[Maurice Hauriou (The Theory of the Institution and the Foundation, 1925), which
considers as Institution the organization that has independently achieved the
highest legal status]
[Santi Romano, (The Legal Order, 1918)]
• Other juridical theories have been developed and, amongst many, one of the
most relevant is based upon the concept of “basic norm” that forms the basis for
any legal system, giving the legitimacy to the Law => “grundnorm” theory.
The fundamental trait of the “grundnorm” theory is based on the need to detect
the point of origin for any legal orders (the “very first principle”).
It underlines also the power of a specific norm to produce real (or legal)
effects.
[see, infra : “enforcement of the law”]
Sanctions and penalties must be provided under the law both directly [: by
the same rule that prescribes some behavior] or indirectly [: by other rules
that are given by legal system] [ => “closure norm” ].
Synthesis
Moreover, when different legal rules are related to each other, they
constitute a legal system.
Common Law and Civil Law Systems
I) Under a traditional perspective, the Common Law system does rely on a relatively
limited number of Statutes [=> Act or Statutory Law], even if more recently this
character has been partially exceeded.
[eg.: the UK Law because of the EU Law (..at least up to the “Brexit”..)].
II) This system indeed is also strongly based upon a Courts’ law-making function
that is far extended beyond a mere interpretation of the current legislation.
[eg.: Under the Common Law, wide areas of Private Law and Tort Law are based on
Court’s rulings; and, quite amazingly compared to the Civil Law system, also in some
case of unlawful exercise of discretionary public power ].
As a consequence, rules can be established (initially as far as legal principles) and
refined by Courts starting from a case-by-case basis.
The Judiciary consequently has got a relevant position in the law-making process,
that also implies a quite different evaluation of the principle of separation of
powers, compared to the Civil Law system.
Originally the Common Law was born as a guarantee, because of the need to
submit the Crown’s power to a “common court”, refusing any form of “special
court” that was considered as an unjustified privilege.
At the opposite, Civil Law systems had been developing under the assumption of
“speciality” of the public power (because it holds the mission to pursue general
interests that requires special rules – the Administrative Law, indeed – and
consequently a “special Judge”. [=> Administrative Courts ]
III) The judicial ruling that binds subsequent decisions in similar cases is called
also “precedent” [=> “stare decisis” principle].
During a trial, the presiding Judge determines the precedent that has to be applied
in order to take a decision about the specific case.
Whether the Supreme Court is involved in a judgment, it usually sets the principle
(or “the law”) to be applied into the case.
Since that moment such principle should also be applied to the generality of
other similar cases.
[=> “Supreme Court’s precedent” ]
The Judiciary thereafter becomes a proper law-maker [=> see, legal rules] because
its decision potentially binds a multitude of not identified subjects.
Þ thus only by means of a new Statutory Law (or a new assessment issued by an
appropriated Court about the same principle) may change such “precedent”.
Civil Law
I) This system is based on a wide corpus of codified Statutory Law.
Civil Law systems indeed are usually characterized by large and comprehensive
“codes” and statutes which should (i) specify as far as possible the matters
potentially capable of being brought before the Judiciary, (ii) regulate the applicable
procedure and (iii) establish the appropriate sanction in case of infringement (or
offence).
Under this framework, the Judiciary has primarily to establish the relevant facts or
acts that characterize the case filed before a Court and
to apply the correct provisions of (a Statutory) Law through the interpretation [: as a
legal technique ruled under the Law].
II) Thus, the Civil Law grants a less crucial role to the Judiciary in order to establish
the legal order, mainly because each decision binds only the parties directly
involved in the trial [=> no general enforcement of rulings].
However, the knowledge of the case law [=> “jurisprudence”] may be very
relevant because it may give substantial information about Courts’
interpretation of the Law.
Both Common and Civil Law systems establish, according to their different
methodology, a further important distinction between Public and Private
Law.
Þ In other words, the Public Law does regulate the rule-makers and the relations
between them and “the governed” (rule-takers).
- Constitutional Law;
- Administrative Law;
- Parliamentary Law;
- Regional and Local authorities Law;
- Tax Law;
- Ecclesiastical Law; Public law
- Criminal Law;
- Criminal procedural Law;
- Civil procedural Law;
- International Law; etc..
(continued) Private Law – Public Law
• The Public law has been founded on the authoritative principle of the
public power which allows issuing unilateral acts.
• The Private law does regulate the relationships between peer subjects
[=> subjects which don’t have authoritative power or don’t want to use
it].
Under this assumption, an “agreement ” is the only way to affect the
legal sphere of a subject.
• Moreover, there are areas where the Public Law may significantly
complement the Private Law regulations.
[eg.: by affecting the contractors’ discretionary in order to pursue a public
interest (such as the consumer protection; the enhancement of free-
market competition; etc.)];
The State’s action is not limited to any pre-defined purpose, rather it can
legitimately address all aspect of the community’s life.
=> various “Form of State” and “Form of Government”
The Form of State concerns the relationship between the State’s power
(that can legitimately exercise coercive power as an expression of
sovereignty) and the Citizens.
3. Sovereignty (or sovereign power): the power to carry out any political
activity through bodies setting and performing purposes, both internally
[due to the legitimacy of the State’s authority of over individuals] and
externally [peer relationship with other similar entities, due to the
international recognition].
The internal sovereignty
• The national law [and somehow the sovereignty too] has been reduced
due to the increase of inter-States ties.
Under this perspective many supra-national organisations have been
entrusted by States of competences over different areas of interest
with the obvious result to impose limits to the national policies.
[e.g.: United Nations, WTO (World Trade Organization), ITU; ECHR; etc.].
This process outlines how the States’ sovereignty may be not always
adequate to settle interests and disputes which are oversized having regard
to the national jurisdiction.
Normative sources:
1) EU Treaties [eg.: the Treaty of Rome (1957), that is commonly considered an
International Law source].
2) EU Directives [binding rules that Member States have to formally transpose
into the national law within the deadline established by the Directive itself].
3) EU Regulations [binding rules directly enforceable into the national Law,
without any procedure of transposition].
1) Recommendations.
2) Advisory acts.
3) Guide Lines;
4) Communications; etc.
European Union Treaties.
(outline).
- 1957: Treaty of Rome: European Economic Community Treaty that founded the EEC and the
European Atomic Energy Community. Whilst the former was a sector-focused organisation,
the latter had a general purpose, even though it was initially considered as substantially
limited to the economic regulation through the legal provision of “economic freedoms”;
indeed:
o a common custom tariff rate policy was introduced to regulate commercial relationships
with third countries;
o free circulation rights [related to “factors of the economic production”] were imposed to any
Member State, as the right of free movement of employees; the right of free establishment
of undertakings and, even if originally with some limit, of any professional; the right of free
movement of goods, services and finance;
o moreover, for the first time ever, the protection of market competition was established
through specific statutory prohibitions, among others against collusive agreements; abuse
of dominant position; anticompetitive mergers, State aid and dumping policies. This would
then become one of the main purposes of the EU Law [=> "EU Antitrust Law"].
• 1987: Single European Act ("SEA", the first major revision of the Treaty of Rome): new areas
of competence (social policies, environmental protection, economic integration, etc.) were
transferred to European Community jurisdiction.
• 1992: Treaty of Maastricht was signed, giving to the EC/EU a new organisation which was
entrusted to complete the long-term European mission and, inter alia, the European
Monetary Union - EMU. The "European citizenship" was also established.
• 1997: Treaty of Amsterdam, which strengthened the cohesion policies through a common
foreign policy, a common security policy and, mostly, a judicial co-operation in criminal matters.
• 2000: The Charter of Fundamental Rights was issued by the EU Parliament, the EU Council of
Minister and the European Commission (btw it entered into full force only with the signature of
the Treaty of Lisbon).
• 2001: Treaty of Nice modified the procedures for infringement actions against Member States,
as well as it extended the procedures of co-decision and cases in which a majority qualified
vote have to be applied.
• 2007: Treaty of Lisbon: actually in force (since 2009), it is composed by the EU Treaty and the
Treaty on the Functioning of the EU (TFEU), that bring together (and partially reform) previous
Treaties. The approval of the Treaty also issued the entry into force of the Charter of
Fundamental Rights.
The establishment of public bodies to which the State grants the power to
issue general rules by adopting “administrative measures”, shows
how much the primary laws are challenged even inside national
jurisdictions.
Probably the AAs' success is due both to their administrative nature, that
allows a short-term adaptation of rules to change conditions (economic,
technological, etc.) of their area of competence,
and to the fact that their peculiar power is, in any case, provided by a
Statutory Law.
4) Private regulatory systems composed of heterogeneous “para-
normative” sources adopted by different bodies and entities which may
have even private nature