Lecture 5 Flashcards

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1
Q

Judges in the system of Civil Law

A

Judges must only apply the acts of the lawmakers through interpretation of the already existent statutory law. These acts are not binding but rather exercise a persuasive action
BINDING ARE: judgements of the Constitutional Courts and those of the Court of Justice and of the European Court of Human Rights
JUDGES’ MAIN ROLE= interpreting an already existent legal system

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2
Q

System of “Common Law”

A

Judges must take into account the PRECEDENTS established by judges in previous similar cases along with the acts of the lawmakers (Constitution, statutory law, regulations)
JUDGEMENTS HAVE A BINDING VALUE; LEGAL DOCTRINE DOES NOT HAVE A SIGNIFICANT ROLE FOR THE JUDICIARY= NOT BINDING

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3
Q

System of “Islamic Law”

A

Sources of law= Quran and Sunna (“Sharia”), combined with previous commentaries and legal responses (=”fawta”) that have been produced by the religious authorities= Ulema
Alongside that for judgements it is needed to take the acts of the lawmakers into account too
Religious law= intended as state law (hence different from Canon and Jewish Law)

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4
Q

System of “Chinese Law”

A

Mostly a civil-law system adapted accordingly to the socialist doctrine and traditional rules (“Fa/li”) coming from Confucianism
Judges cannot create laws and must apply the interpretation provided by the Communist Party

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5
Q

System of “Customary Law”

A

Mostly a common-law system that but recognizes a significant role which is played by the customary law spontaneously created by groups of people.

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6
Q

What is statutory law (“diritto legislativo”)
What is regulations

A

In general= law created by acts of the Parliament
Other definition= rules created by a legislative body
Regulations= result of the legislator but they have not the same value as the acts approved by the Parliament

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7
Q

Rights toward the State

A
  • liberty (“negative”): coming from an abstention of the State to safeguard one’s personal liberty
  • political (“participative”): capability of taking part into the public and political life of the state
  • social (“positive”): coming from an intervention of the State (ex. education, health)
  • economic (ex. property)
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8
Q

Rights with respect to private natural and juristic persons

A
  • absolute (“erga omnes”): in the sense of sacred with respect to everything (ex. life)
  • relative (“inter-partes”): specifically between two persons, either natural or juristic, regarding a specific subject (bank loan)
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9
Q

Subject of rights/ right holder and categories of rights (not intended as civil, political,…)

A

They are worth for both natural or juristic persons
- individual= singular natural/ juristic person
- collective= right exercisable only with others (ex. of aggregation)
- communitarian= right recognized only to a community or group of people

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10
Q

Content of rights

A
  • personal (non pecuniary: ex. life)= moral rights
  • economic (pecuniary)
    1. in rem = possessions/ valuable goods
    2. in personam= valuable performances
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11
Q

Level of recognition of rights

A

= level at which the right is recognized and protected
- international human rights
- constitutional human rights
- legislative rights: recognized only by statutory law (ex. abortion), not the Constitution
- customary rights

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12
Q

Guarantees

A
  • EUCFR/ ECHR/ International limits to national powers
  • constitutional limits to the legislative, executive and judiciary powers
  • statutory limits to executive and judiciary powers + reserve of judicial authority impedes interferences by the executive
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13
Q

Duties towards the State

A
  • solidarity (ex. social activities)
  • political (ex. military service, vote)
  • economic (ex. taxes)
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14
Q

Duties towards private natural and juristic persons

A
  • public
  • obligations
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15
Q

Holder of duties

A
  • individuals
  • state (ex. the State must protect public helath and assure education)
  • government authorities (public officials)
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16
Q

Content of duties

A
  • personal
  • economic (ex. paying taxes or interests)
17
Q

Level of imposition of duties

A
  • international human duties
  • EUCFR duties
  • constitutional duties
  • legislative duties
  • customary duties
18
Q

Enforcement of duties

A
  • by administrative authorities directly or by private application
  • by courts upon public prosecution or by private lawsuit
19
Q

Responsabilities (“munera”)

A
  • by virtue of law (ex parental)– parents have the power and the obligation to educate their children
  • by virtue of judicial appointment (ex. guardianship)