1. Characteristics of the State

Question 1

4 constituents elements of legal system

Answer 1

1. certain number of subjects, who make up a social group and are connected to each other by common goal/interest => certain criteria of evaluation
2. private relationships, qualified by norms, lead to emergence of (un)favourable legal situations
3. titular power and authority assigned within the group
   
   • involves legitimising the use of force by different organs on the basis of the complexity of social group. e.g. political power, economic power, ideological power,…etc.
4. authority has means of coercion to ensure the legitimate exercise of power.
   
   • attaching (un)favourable consequences to group member’s behavior. e.g. sanctions/punishments

=> internal sovereignty

Question 2

Criteria to classify legal system

Answer 2

1. relationship of legal system with degree/intensity of community ties + other relations that form basis and bind group
   
   • strong ties usually means more decentralised authority
2. nature of community/social ties
   
   • voluntary legal systems = cohabitation/coexistence of its member is not forced
3. relationship of members with geographical territory
   
   • birth/permanence on territory constitute inseparable ties of affiliation for group members
4. relationship established with other legal systems
5. type of authority exercised
   
   • considered sovereign if it de facto holds sovereign power
   • non-sovereign: use of legitimate force requires permission from external/superior authority

Question 3

Definition of legal norms

Answer 3

• Relationships among members of the same social group are regulated by numerous norms.
• Only some are legal
• => Legal norms are those that are produced solely by a legal system; sources that a given system internally recognises
• have power of producing effects on binding participants

Question 4

Characteristics of legal norm

Answer 4

1. force and effectiveness (2 main distinctive characteristics)
2. generality and abstractness;
3. produced solely by a legal system;
4. following a particular procedure;
5. only by a competent authority.

Question 5

Force and effectiveness of legal norm

Answer 5

• Effectiveness: describes ability of legal system to impose binding rules/norms on participants/members
  
  • deals with attributes that are associated with both legal system as well as single norms within them
  • can be considered binding/effective even if there exist occasional and limited violations of single norms
  • necessary condition for norms to be valid/legitimately enacted
• Force: refer to norm’s ability to innovate/develop positive legal system
  
  • requisite in order to sustain the validity (from effectiveness) of the legal system
  • must be accompanied by observance and respect of individuals in the system

Question 6

Generality and abstractness

Answer 6

• Generality: the possibility that the legal norms apply, if not to all participants, then at least to indefinite number of them
• Abstractness: possibility that legal norms apply to indefinite number of situations, repeatedly overtime

Question 7

Nomen iuris (produced solely by a legal system)

Answer 7

• the name of the law
• sources of law constitute a closed system
• legal acts belong to the primary sources

Question 8

Legislative procedure

Answer 8

• Cons. governs this process of producing normative law
• failure to respect such procedures = cause of defect in the legitimacy of the law

Question 9

Competent authority

Answer 9

• having jurisdiction
• the super-primary source additionally identifies organ/entity within legal system that has power to make the law
• mainly Parliament

Question 10

Definition of the state

Answer 10

• The State = a concentrated legal system is founded to actively pursue general goals or ends.
• The State as an original or non-derived entity can be distinguished from derivative entities. (external sovereignty)
• Each State has its own territorial area of jurisdiction.
• The sole existence of a single political power to which all in that territory are subject becomes the unifying element which binds together the participants in a given legal system.

Question 11

Clear distinction between internal and external sovereignty

Answer 11

Internal sovereignty means supreme authority within one’s territory, while external sovereignty relates to the recognition on the part of all states that each possesses this power in equal measure ( the existence of a state according to international politics – the recognition of its existence, and therefore rights to territorial self-rule, by other countries)

Question 12

Characterising elements of the State legal system

Answer 12

1. Territory
2. Sovereignty - presence of authority which is able to exercise power and carry out political activities
3. People

Question 13

Elements that constitute the territory

Answer 13

1. dry land;
2. continental shelf;
3. waters included within the confines of the State;
4. aerial space.

Question 14

Difference between values and principles

Answer 14

• Principles refer to the fundamental choices of society’s ethical/moral ordering
• means used to govern the production of positive norms
• means to achieve end goals - establishing values
• legal norms of a superior level (more general than norms)
• principles form basis of Cons => changing of fund. prin. over time can be controversial
• however, since they are general, principles are considered to be “elastic” - open to possible different interpretations

Question 15

What does the legitimisation of sovereign power based on?

Answer 15

1. theocratic theories;
2. legitimisation theories;
3. contractualist theories;
4. theories basing sovereignty upon the idea of the Nation;
5. theories that attribute sovereignty to the public legal personage of the State;
6. democratic constitutionalist theories.

Question 16

Theocratic theories

Answer 16

• centered on the divine nature of authority
• St. Paul: “all power belongs to God”

Question 17

Legitimisation theories

Answer 17

• based on historical roots of royal institutions and dynasties
• based on customary stratification (formation of layers, classes, or categories) of political power and its substantial and formal rules
• e.g. theories of Burke

Question 18

Theories basing sovereignty upon the idea of the Nation;

Answer 18

• French Declaration of the Rights of Man and Citizens
• Nation identified as the subject of entire political system
• Nation expresses itself through voice of representatives, whose supreme act of will is the law
• Key aspects: generality, abstractness and rationality
• This theory/formula extends the primacy of middle class

Question 19

Contractualist theories

Answer 19

• founded upon the idea that a voluntary collective pact set up State/political community
• e.g. theories of Locke (social contract theory - persons’ moral and/or political obligations are dependent upon a contract or agreement among them to form the society in which they live)

Question 20

Theories that attribute sovereignty to the public legal personage of the State

Answer 20

• identified an abstract subject endowed with
  
  • supreme attributes of political power
  • ability to express national culture
• approached from a culturally romanticist perspective
• e.g. Hegel, Gerber, Laband

Question 21

Democratic constitutionalist theories

Answer 21

• assign sovereignty to the people
• State ceases to represent itself as the supreme authority of political power
• political power determined by electorate

Question 22

Theories on concept of ‘people’

Answer 22

1. The theory of the people as a constitutive element of the State - different from 4 since they are only considered as an element, not much of a strong role
2. The theory of the people as the object of State sovereignty - passive and oblige to political power
3. The theory of the people as subject of rights toward the State - not a passive object but also an active actors because if they are subjected to rights, gov has duty to provide and protect those rights
4. Theory of the people as creator of the State’s will - engine for the State, much more revolutionary than (1)

Question 23

The theory of the people as a constitutive element of the State

Answer 23

• most notable and intuitive view
• people + territory + sovereignty = main 3 constitutive elements of the State
• evident that one cannot provide possibility of State without material existence of the people
• => most insufficient theory

Question 24

The theory of the people as the object of State sovereignty

Answer 24

• asserted by Kelsen
• people are bound to respect the norms
• argument against is that alien residing in territory must also adhere to the norms, especially criminal laws
• However, Kelsenian position is that alien also belongs to the “people” since he holds a broad meaning/concept
• broad to also include those individuals who lack requisite of citizenship

Question 25

The theory of the people as subject of rights toward the State

Answer 25

• occurred beginning of 20th century with achievement of welfare state + changes in citizens’ expectations vis-a-vis public authorities
• State required to provide services necessary to individual’s essential needs + all can benefit from civil society
• debate on whether positive rights granted to non-citizen residents

Question 26

Theory of the people as creator of the State’s will

Answer 26

• position taken by Italian Cons.
• proclaims that the people in addition to possessing citizenship exercise such right in the ways legally provided for
• first exercise of sovereignty = participate in political decision making process
• State = apparatus through which people expresses its will => political bodies = temporary (has pre-set duration)
• Citizenship not a passive recipient of political will but rather an active one

Question 27

Define citizenship

Answer 27

concept identifying the condition of being bound to a given State, from which the individual:

1. receives certain rights;
2. to which he or she owes certain obligations;
3. is forced to respect certain duties.

Question 28

Distinctive elements to differentiate citizens from aliens

Answer 28

1. ius sanguinis: right of blood - is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state
2. ius soli: right of the soil - right of anyone born in the territory of a state to nationality or citizenship