Introduction to Public Law - 1 canale, 1st Midterm

Lesson 1: Issues of method in legal studies, notion of law, the legal framework & the state and the law

Issues of method in legal studies

Each state must protect the human rights of its citizens and some of the most important instruments used for this purpose are legal instruments like law. But what is law? This is a question that will never have a unique answer; in fact, the concept of law has many aspects, both from the theoretical and philosophical side.

We can define six aspects of that term:

• The term law can mean a specific act, for example, a certain law taken by a given Parliament of a given country in a given year.
• The term law can also mean a system of legal rules that must have an inner coherence; this concept can be compared to a building (legal system) which is the result of the union of legal blocks (rules) which join the others and give a coherent result.
• A legal rule is a statement which affirms that something (behavior of human beings in their social relationships) “ought to happen” so is not something certain. Wherever there is a human society, there is a system of legal rules, and law is a social phenomenon whose concept is meaningless without a society. In the beginning of human society, religion and legal rules coexisted, but then, with progress, separated these two aspects, although there is still an influence of religion in Western society.
• Human society is governed by legal and moral rules, and sometimes it is not easy to separate them:
  • Moral rules remain separated from the legal ones and are the product of the autonomy of the individual of the self-determination, so they depend on our choices and are purely individual.
  • The legal rules are imposed on the individual from the outside, they are created and enforced on a society of men and are the expression of the authorities.
• Legal rules not only dictate rules which must be followed, but they are also characterized by forms of punishment for those who violate them. These measures are necessary, taken by the government, and are called sanctions —> human beings adapt their behavior according to those legal rules.
• Legal rules don’t predict something to happen but offer a canon of evaluation of a given behavior. So, the legal system requires the activity of judgment: this task, in developed legal systems, is institutionalized and becomes part of the legal systems itself. The activity of judgment must end with a given result which is the final judgment: it is pointed out by the majority of members of a given court (a court could express different points) and has to be taken as the logical need to settle a certain case and the final solution of every doubt. To understand a judgment, we must take into consideration the legal system (each State has its own), the legal rules, and the court. There must be a sort of meta-rules which govern the relationship between these different legal systems.

Notion of law

There is a distinction made for practical and theoretical reasons between private law and public law.

Private Law: Regulates relationships and conflicts between private citizens, their individual activities, and their individual interests (company law, labor law, wills and successions, properties, family matters, and human rights).

Public Law: Regulates relationships and conflicts among nations or between private citizens and local authorities (administrative law, constitutional law, international law, criminal law, economic law). It is the field of public law every time that the interest is not just between two individuals but becomes more general concerning the entire society.

There are three types of power: legislative, executive, and judicial. The legislative creates the legal rules, the executive applies what the rules prescribe, and the judicial resolves the controversies about the legal rules.

The legal framework

It is easier to know how things ought to be rather than about how they actually are. Thinking about how things ought to be leads us beyond the conception of the world, but the "ought" is just an ideal picture; normative judgments depend on the wide concept of the normative orders which take the whole range of things and possibilities.

Normative order —> task to avoiding wrongdoing, it is ideal because it conveys a notion of a favored idea and is practical because it guides us in what to do and is practicable. We formulate norms as single elements of the normative order; they are dependent on fundamental elements in human consciousness and were exclusionary provisions (ruled out certain ways of acting on determined occasions). The human will contributes to constitute a normative order, and we can consider an action as right or not just by reference of an order —> the world depends on human choices that reflect and conform to the conceptions of legal and moral rectitude.

Humans understand the normative order through nature, socialization, and education. They are exposed to some common views on what is right or wrong, they develop the ability to self-regulate themselves in front of the norms, then in modern conditions, normative orders come from others.

Normative order involves judgment: if your behavior doesn’t match up to what is required, you have to be exposed to judgment —> exclusionary or mandatory norms describe some conducts as wrong or obligatory. There is a consequential judgment of the measure of penitence that is apt to the case; the judgment can be personal and autonomous, conventional and heteronomous, or institutionalized and organized. In a question between two parties, there is reference to a third impartial party (judges), appeals may be allowed or not, but in front of a final judgment, it is forbidden to take any action.

The state and the law

Relevant power is concentrated in a state —> wrong conviction that law = state law —> Two aspects of the relation between coercive power (state) and normative order are that of executive and legislative power:

• The executive can back up the power of judgment or disown/overthrow it, is restrained under law.
• The legislature has the democratic legitimation that contributes to the acceptability and durability over time of the coercive power, is conferred by law, and says what norms of law are enacted validly or not.

Both are subjected to judicial judgments.

There is a distinction between positive law and natural law:

• Politics: Concerned with law but is not law —> exec uses power in human societies and elaborates principles for the proper exercise of it, defining ends for the common good and control available goods distributing those, protects the society from internal or external interferences —> is a power to make sure that somebody acts in a certain way, the legal power is limited to the realm of the ought.
• Law interacts with politics in many ways: as an object with which political power is exercised and as a control upon the use and abuse of power, but law is not made by this power to effect social change.
• Morality: Concerned with law but is not law (natural law) —> concerns normative order that is conceived to be valid independently of power, is often in connection with religion and tradition. These principles and rules have authority over a moral agent because they are incorporated in his morality through autonomous choice or because it derives from the power of community opinion.

Law with politics: explicit rules in pieces of legislation, is relativistic because the human adapts to it. Law with morality: judgments applied universally, not depending on territorial jurisdiction. Law is both a normative and institutional order: as a normative order, it replicates certain features of morality; as an institutional order, it connects to politics which guarantee a system of positive law. The state is a form of territorial political order.

The state has a territory, exercises government in that territory over the population who share a common consciousness of nationality —> nation-state.

Feudalism was predicated in Europe —> the absolute monarchies emerged —> as a reaction, constitutional monarchies and revolutionary republics came out. The state is characterized by organization of governing agencies and differentiation of their function, sovereignty, territorial sphere, centralization of overall governance and coordination of the parts, peaceful coexistence with other polities.

Four possibilities of interaction between law and state:

• State as a creation of the law: society created around the natural law with the state that has to make that respected, Locke theory.
• State as the only producer of law: there is no law anterior to the state and, without law, humans are at war with each other.
• State and law as coexistent but not identical: government and law should be seen as a historically co-evolving system.
• State and law are a fully identical entity: states are acting subjects thanks to the law.

To sum up: a state is a territorial organization of political power that requires constitutional definition and organization, but is not necessarily confined by constitutional limits. Institutional normative order can exist apart from the state, but states can establish a monopoly on them, yet the character of institutional normative order remains far different from the one of the order of terror the state may establish in that way.

Lesson 3: The constitutional state: sources of law + types of law

Sources of law in the EU

We can distinguish different sources of law:

• Primary: like funding treaties, accession treaties, amending treaties.
• Secondary: like regulations (general and direct application in member states), directives (form and methods decided by national authorities), decisions.
• Supplementary sources.

A normative antinomy is a contrast among norms in a legal system...