The Sources of Law Flashcards by Elsi Popek

THE SOURCES OF LAW

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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What are the types of sources of law?

Acts
Facts
On production
Of production

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ACTS

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

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FACTS

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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SOURCE ON PRODUCTION

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

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SOURCE OF PRODUCTION

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

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SOURCE OF COGNIZANCE

Provides official legal notice about the legal norms

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THE LEGAL INTERPRETATION

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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What are the types of legal interpretation?

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

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Which are the possible interpreters of a legal text?

The same legislative branch
The judges
The Law Professors
The Public Administration
Anyone

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LACUNA

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

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What is the resolution for a Lacuna?

Common Law: precedents
Civil law: analogia legis/analogia iuris

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ANTINOMIA

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

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What are the criteria to solve an antinomia?

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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RETROACTIVE EFFECT

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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Is the law retroactive in Italy?

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

CONSTITUTIONAL FACTS

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.

CODIFIED CONSTITUTION

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.

CODIFIED CONSTITUTIONAL AMENDMENTS

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

UNCODIFIED CONSTITUTION

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.

RIGID/FLEXIBLE CONSTITUTION?

Binding/not binding for the legislative power
Reinforced/not reinforced amending process
Supreme law/not supreme law

VOTED/OCTROYEE CONSTITUTION?

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

LONG/SHORT CONSTITUTION?

Detailed/Not detailed

ORIGINAL CONSTITUTION

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

MATERIAL CONSTITUTION

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

LIVING CONSTITUTION

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

SHAM CONSTITUTION

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

What are the elements of a modern Constitution?

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

What is the relationship between domestic and international law?

- 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.

What are the sources of international law?

- 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

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

- 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

What are the sources of EU Law?

- 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.

SYSTEM OF CIVIL LAW

- 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

SYSTEM OF COMMON LAW

- 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

SYSTEM OF ISLAMIC LAW

- Religious precepts written in the Quran and in the Sunna are sources of law

SYSTEM OF CHINESE LAW

- 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

SYSTEM OF CUSTOMARY LAW

- 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