4. Sources of law and interpretation Flashcards
Define 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)
a legal system should indeed be certain, dynamic and efficient
Basic features of sources of law
- The basic norm is typically a secondary rule, which aims at identifying primary rules, thus ensuring certainty of a legal system;
- Secondary rules which govern the possible change of primary ones ensure dynamism of a legal system
- Rules which deal with the enforcement of primary ones ensure the efficiency of a legal system.
Why is secondary rule important?
- secondary rules which govern the possible change of the primary ones are commonly known as sources of law; they play a major role in the historical development of a legal order since they stipulate what facts or acts are capable both of creating new rules and of changing or repealing those already existing.
- They answer to the question whether a particular rule is also a legal rule. Each system is based upon its own sources of law, which may not be effective as such in any other legal system.
2 meanings of sources
- Sources of production: change the law in force through
- Acts: sovereign decisions intended to enact new rules, or to amend or repeal those already existing;
- Facts: customs and traditional practices meeting two requirements:
- objective stability over time;
- social perception a given behavior is legally binding (so-called opinio iuris ac necessitatis)
- Sources of cognition: give legal notice about the sources of production (e.g., Official Journal of the European Union)
Examples of sources of production
- The Constitution (Charter and complementary provisions)
- Statutes/enactments having force of law (leggi, decreti legge, decreti legislativi)
- Regional laws
- Regulations
- Uses
Primary sources of EU law
Founding Treaties
- 1951: Treaty of Paris: European Coal and Steel Community
- 1957: Treaties of Rome: EURATOM (European Atomic Energy Community); EEC (European Economic Community)
Objective: creating a European area of free trade, with no internal frontiers (free circulation of goods, services, workers, capitals)
The founding Treaties set out which competences are conferred to the European Union, regulate community bodies and their legislative powers
Secondary sources of EU law
Non-binding acts
- Recommendations
- Opinions
Binding acts
• Regulations: directly and immediately applicable in all Member States
- Directives: bind Member States as to the result to be achieved, but require to be implement in each of their national laws though a domestic source, whose content may be characterized by some (limited) discretion
- Decisions
Relationship between national and EU sources of law
- initial clash between the ECJ and national (Constitutional) Courts
- today it is a shared principle that EU law is always to be preferred regardless of whether it was approved before or after the conflicting national law
- The European Union and the Member States are considered distinct and autonomous jurisdictions, each of them having its own system of sources
- When Italy signed the first Treaty, it transferred competence to the European institutions with regard to certain subject matters and policy areas and, as a consequence, accepted that European law have precedence over Italian law (so-called supremacy)
Criteria for interpretation
- The literal rule (or Grammatical interpretation): the interpretation matches the literal meaning 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 (so-called Golden rule): the interpreter tries to determine the purpose of the rule himself.
Argument against 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
Argument for legal gaps
Enlargo 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 was nourished by medical staff though a feeding tube, but her father wanted it to put an end to her life
- Eluana’s father claimed that, prior to the accident, she had visited a friend laying in a coma and told him that, had she found in the same situation, her will was not to kept artificially alive
=> The court may authorize the legal guardian to interrupt medical treatments (hydration and artificial feeding) that keep an incapacitated person lying in a persistent vegetative state artificially alive, provided that: a) the condition of the vegetative state is ascertained as irreversible, according to recognized scientific parameters, b) the application reflects the patient’s will, drawn from his/her previous statements or by her/his personality, lifestyle or beliefs
Ways to fill in legal gaps
Gaps in primary norms may be filled in by secondary rules authorizing judges either to 1. create new law or to 2. extend the scope of law which already exists
1: Hart
2: Dworkin
Hart vs. Dworkin
- Hart: judges legislate when rules do not determine decision in a particular case since no rules are going to list all the possible vehicles
- -> constraints how judges legislate? Legislators can promote interest of their constituents
- Dworkin: judges employ principles in making decisions and that we can’t understand what judges do unless we include principles in account of the nature of law => no gaps in law really exist, “implicit law”
Define analogy
. An analogy denotes that similarity exists in some characteristics of things that are otherwise not alike. In a legal argument, an analogy may be used when there is no precedent (prior case law close in facts and legal principles) in point.
Analogy in Italian law
- (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).
- (pursuant to art.14 prel. Disp. To c.c.):
- furthermore, criminal law (nullum crimen, nulla poena sine lege) and exceptional norms are 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.
- However, such norm does not exist in many jurisdictions as the main problem is to determine in which cases a norm can be considered exceptional.
