Lecture 4 Flashcards
Sources of international law
- international customs= general repeated behaviours of the states in their relations, accepted as legally binding
- treaties= specific agreements concluded and ratifies by the states, according to their constitutional procedures which are legally binding
- acts of international organizations: according to the treaties that established the organizations themselves
- general legal principles recognizes by civilized nations
Retroactive effect
if a law applies not only to the acts or facts that will happen from the time it entered into force on, but for the acts or facts prior the entering into force too
A law should not have retroactive effects for the stability and certainty of a legal system, although, if not codified in the Constitution, a legislative body might approve a law with retroactive effects when strictly needed
ITALY’S CASE: such principle is stated in the primary statute; in general a lawmaker may adopt a law with retroactive effects
Monism relationship
International law has immediate effects and the Constitution may choose if statutory law must be consistent with international law or if statutory law may repeal or derogate international law
Dualism relationship
International law must be specifically incorporated into demostic law by acts of the legislative or executive power
Criminal law, retroactive effects
- “nullum crimen sine lege” (new crime): when a new crime is defined there’s obviously no retroactive effect (forbidden in every western country)
- “lex mitior” (abolishe crime): when an existent crime is abolished, then all detained criminals due to that crime are released– DUE TO CONSTITUTIONAL PRINCIPLE OF EQUALITY AND PERSONAL LIBERTY
Retroactive effect in general
- when a new legal provision repeals the old one (chronological criterion), still the old one will be applied in cases acts and facts previous to the repealment
REPEAL HAS NO RETROACTIVE EFFECTS
Crimes are subjected to the laws that were in force at the time - when a legal disposition is declared invalid it ceases to have effects also for the past since the day the disposition entered into force (annulment has retroactive effects)
Constitutional facts
= extraordinary or revolutionary historical-political events that successfully overthrew the existent Constitution, opening the path for the creation of a new one by a new formalized constituent power (which is potentially unlimited)
Codified Constitution
= Constitution which is written and kept in a single document as only source of constitutional law of a country, that creates a system of government and set of rights
Codified constitutional amendments
amendments= simple modifications of the original constitution operated by a constitued power, whose potential in such modifications is limited by the existent Constitution itself
Uncodified Constitution
unwritten or partly written Constitution held in different documents as multiple sources of law. Constitution= set of multiple rules of various nature (customs, charters, statutes, precedents)
Typical of pre-modern political regimes applies in the UK and former colonies
Rigid or Flexible Constitution
- Rigid Constitution= supreme law of the land; binding, reinforced amending process, supreme
- Flexible Constitution= not enforced as the supreme law; it is put on the same level as the Parliments’ statutories
Voted or Octroyée Constitution
- voted Constitution: approved by the people themselves
- Octroyée Constitution: the document has been given by the king or the dictator (act of will coming from the higher authority to limit its powers)
Long or short Constitution
Detailed or not detailed in shaping the system of government and of rights
“Original” Constitution
As interpreted and applied according to the original meaning at the time of adoption
“Material” Constitution
As interpreted and put into practice over time by the political forces
