7: Sources of Law Flashcards
What are the definitions of:
- Sources on the production
- Sources of production
- Sources of cognizance?
- Sources on the production: Outlines who has the competence to enact a law and what procedure we must follow to do so
- Sources of production: Acts or facts which can produce law.
- Sources of cognizance: sources giving legal notice on laws: they publicize the laws in question
What are the two sources of law?
- Acts: Written sources of law, voluntarily adopted which produce legal effects if they achieve (1) Existence, (2) Validity, and (3) Efficacy
- Facts: Unwritten sources of law which produce legal effect only if the law recognizes they have the ability to do so. Two combined elements are: (!1) Objective and (2) Subjective
What is the hierarchy of the sources of law?
Pyramid:
- Constitution
- Primary sources: Statues
- Secondary sources: Regulations
- Customs
What is the difference between common law tradition and civil law tradition?
Common law: Courts’ decisions are the legal sources; judges are appointed by the executive branch or election
Civil law: Courts’ decisions are not a legal sources as judges are not bound to previous decisions and rulings (unlike common law)
What is the constitution and what should it provide for?
The constitution is a declaration of rights of all men and citizens (almost always the superior law)
Should provide for:
- The frame of government
- Bill of rights
What are the 5 traits that constitutions can be appropriated to?
- Codified vs. Uncodifed
- Long vs. Short
- Flexible vs. Rigid
- Voted vs. Octroyée
- Normative vs. Nominal/Sham
What are the 5 traits of the Italian Constitution?
- Codified
- Long
- Voted
- Rigid: Constitutional amendments must go through a special amendment procedure with a short time frame (3 months) between two processes, requiring a double vote of each Chamber of Parliament, then a majority vote to be passed
What are the 3 types of primary sources of law?
- Ordinary state law: Only Parliament can pass ordinary state laws; the government can only pass decrees
- Regional law: Exist in regional and federal states
- Abrogative referendum: Used by the people to repeal a law or promote a decision
Primary Sources of Law:
What is the procedure used to introduce new legislation laws in Parliament?
- Initiative: Bill is introduced by MPs
- Approval:
a) Ordinary procedure: Speaker of the house assigns the bill to the relevant commission to refine, then the bill is sent to the house. After approving every article, the bill receives approval as a whole
b) Debating procedure: Everything is done within the commission
c) Debating procedure: The commission drafts a final version of the text which the house can approve/reject as a whole
Primary Sources of Law:
What are acts having the force of law, and what is the procedure used to introduce these law decrees?
- An exception to the principle of the horizontal separation of power in law making
- Parliament delegates certain legislative authority to the government
- Speeds up the process; helps deal with highly technical issues
2 phases:
- Parliament approves of a delegation act and the constitution sets limitations regarding (1) subject matter, (2) time limit of the government’s authority, and (3) general principles/criteria
- Following approval of the delegation act, the government issues the act as a legislative decree
- Government law decrees can also be converted into law by Parliament within a time limit (if time limit is missed, the decree loses all efficacy ex tunc)
- Unconverted law decrees cannot be re-issued
- Law decrees tend to happen only in exceptional and urgent situations
Primary Sources of Law:
What are regulations, and what are the 4 functions they can be classified by?
- Regulations can be issued by the government, single ministries, central government
bodies and local authorities - If regulations do not comply with law, they become invalid
- Regulations are relative, laws are absolute
4 functions:
- Executive regulations
- Integrative regulations
- Independent regulations
- Organizational regulations
What is the new constitutional pyramid hierarchy?
New pyramid hierarchy:
- Supreme constitutional principles: perpetuity clauses, other constitutional principles
- Laws (state & region), legislative decrees, law decrees, referenda
- Regulations (state, regional & local)
- Customs
