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Public Law > The Sources of Law > Flashcards

The Sources of Law Flashcards

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1
Q

THE SOURCES OF LAW

A

Any act or fact that is allowed to modify the legal order, by introducing a new legal rule, or by amending or repealing an existent one, accordingly to the same legal order

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2
Q

What are the types of sources of law?

A
  • Acts
  • Facts
  • On production
  • Of production
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3
Q

ACTS

A

Constitutions, Acts, Regulations, International Treaties, EU Laws…
An expression of political will, voluntary, exercised by a legislative/regulative body.
–> Written

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4
Q

FACTS

A

Customs, Precedents, Conventions…
A human behavior repeated over time.
They are still important in:
- International law
- Constitutional law
- International private law

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5
Q

SOURCE ON PRODUCTION

A

The source of law that identifies the competent authority, the criteria, the procedure and limits of a legal norm.

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6
Q

SOURCE OF PRODUCTION

A

The source of the law that introduces, modifies or repeals legal rules.

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7
Q

SOURCE OF COGNIZANCE

A

Provides official legal notice about the legal norms

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8
Q

THE LEGAL INTERPRETATION

A

The function of discovering and expounding the intended signification of a legal text in order to apply that meaning to set a case.

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9
Q

What are the types of legal interpretation?

A
  • Authentic
  • Clear and proper meaning
  • Logical connection
  • Systematical connection
  • Original legislative will
  • Pursuant to the Constitution
  • Pursuant to European Union
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10
Q

Which are the possible interpreters of a legal text?

A
  • The same legislative branch
  • The judges
  • The Law Professors
  • The Public Administration
  • Anyone
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11
Q

LACUNA

A

A gap in the legal order, that must be filled to maintain the social order

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12
Q

What is the resolution for a Lacuna?

A
  • Common Law: precedents
  • Civil law: analogia legis/analogia iuris
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13
Q

ANTINOMIA

A

A contradiction of meaning between two, or more, different rules “potentially” applicable to a case.

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14
Q

What are the criteria to solve an antinomia?

A
  • Chronological criterion (repeal, not retroactive)
  • Hierarchical criterion (constitutional –> primary –> secundary –> tertiary; annulment, retroactive)
  • Criterion of Specialty
  • Criterion of Attribution (non-application)
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15
Q

RETROACTIVE EFFECT

A

The law has retroactive effects if it applies not only to acts/facts that will happen from the time it entered into force, but also for the acts/facts that happened prior to its entering into force.

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16
Q

Is the law retroactive in Italy?

A
  • In general NO
  • Criminal law: “nullum crimen sine legis” (not retroactive); “lex mitior” (yes retroactive)
  • Repeal –> not retroactive; Annulment –> yes retroactive
17
Q

CONSTITUTIONAL FACTS

A

Extraordinary/revolutionary historical-political events that successfully overthrew the existent Constitution, opening the path for an entire new Constitution by a next formalized constituent power.

18
Q

CODIFIED CONSTITUTION

A

The constitution as the single fundamental legal act-document, adopted by a formalized constituent power, that creates de novo a system of government and set of rights.

19
Q

CODIFIED CONSTITUTIONAL AMENDMENTS

A

Simple modifications to the original constitutional text, adopted bt a constituent power.

20
Q

UNCODIFIED CONSTITUTION

A

The “constitution” as the set of multiple legal rules of various nature (statutes, charters, customs, precedents) that shapes an existent system of government and of rights, not embodied in a single fundamental document.

21
Q

RIGID/FLEXIBLE CONSTITUTION?

A
  • Binding/not binding for the legislative power
  • Reinforced/not reinforced amending process
  • Supreme law/not supreme law
22
Q

VOTED/OCTROYEE CONSTITUTION?

A

Voted directly/indirectly by the people OR given by a monarch or a dictator

23
Q

LONG/SHORT CONSTITUTION?

A

Detailed/Not detailed

24
Q

ORIGINAL CONSTITUTION

A

The constitutional text as interpreted and applied according to the original meaning at the time of adoption.

25
Q

MATERIAL CONSTITUTION

A

The constitutional text as interpreted and applied over time by the political forces.

26
Q

LIVING CONSTITUTION

A

The constitutional text as interpreted and applied over time by the supreme/constitutional courts

27
Q

SHAM CONSTITUTION

A

A constitutional text formally in force but practically non-effective or scarcely effective in shaping a political regime.

28
Q

What are the elements of a modern Constitution?

A
  1. Fundamental principles
  2. Organization of the division of power between the governmental branches
  3. Charter of citizens’ rights
  4. Outlines for the other sources of law
29
Q

What is the relationship between domestic and international law?

A
  • Monism: no legal boundaries between national and international law, therefore international law has immediate effects into domestic law.
  • Dualism: international law must be specifically incorporated into domestic law by an act of the legislative power.
30
Q

What are the sources of international law?

A
  • International customs: general repeated behaviors of the States in their relations accepted as legally binding)
  • International treaties: specific agreements concluded and ratified by the states, according to their constitutional procedures, accepted as legally binding)
  • Acts of international organizations
  • General legal principles recognized by civilized nations
31
Q

What is the relationship between the domestic and the EU law?

A
  • In EU matters: EU law prevails over the domestic law; it is binding and it must be applied by national administrative authorities, judges and legal subjects.
  • The domestic judge, having a question about the interpretation or the validity of EU Law, in a pending case the resolution of which is necessary to its judgement, may/must request to ECJ a “preliminary ruling”.
  • ECJ has only limited jurisdiction on EU Law: the National Judges apply EU Law
32
Q

What are the sources of EU Law?

A
  • Primary: Treaty on EU, Treaty on the functioning of EU, Charter of Fundamental Rights of EU
  • Secundary: EU regulations, EU directives, EU decisions, ECJ opinions.
33
Q

SYSTEM OF CIVIL LAW

A
  • The judge must apply only the acts of the lawmaker
  • Judgements (source of interpretation) and precedents are not binding (only persuasive value)
  • Statutory law is largely codified
  • Legal doctrine palys a pivotal role
34
Q

SYSTEM OF COMMON LAW

A
  • The judge must apply also the precedents established by higher judges in similar cases, besides the acts of the lawmaker
  • Judgements and precedents are binding
  • Statutory law is not codified
  • The legal doctrine does not play a pivotal role for the judiciary
35
Q

SYSTEM OF ISLAMIC LAW

A
  • Religious precepts written in the Quran and in the Sunna are sources of law
36
Q

SYSTEM OF CHINESE LAW

A
  • Mostly a system of civil law adapted according to the Chinese Way, based and influences by socialist political doctrine
  • ancient, traditional, customary rules still play a role
37
Q

SYSTEM OF CUSTOMARY LAW

A
  • A system of common law which recognizes a significant role to customary law sponaneously created by groups.
  • Precedents are created by ancient common behaviors of groups

Public Law (9 decks)

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