Appunti midterm di Public Law

There is a distinction between:

-Positive Law Vs.

1) Politics: it is concerned with law (law making, law reform etc) but is

not law.

2) Morality: it is concerned with law (criticism of legal decisions and legal

rules, obligation to respect the law etc) but is not law. = "natural law".

Law with Politics:

- Focuses on the legal system's structure and operation within a political

context.

- Emphasizes the influence of political institutions, power dynamics, and policy

considerations on the legal framework.

- *Example:* Analyzing how political ideologies impact the appointment of

judges or the formulation of laws.

Law with Morality:

- Considers the intersection of legal principles with moral and ethical values.

- Examines how legal decisions align with or deviate from societal morals.

- *Example:* Debating the morality of certain laws, such as those related to

individual rights or controversial issues.

In summary, law with politics explores the influence of political factors on the

legal system, while law with morality delves into the ethical considerations and

alignment of legal decisions with societal morals.

If a person wants to find out whether there is a maximum speed limit on the

roads of a country.

1)Law with politics: the person can look at explicit rules in pieces of legislation;

or in legal textbooks or governmentpublications about road traffic, assist in

identifying them. In each country there is a different speed limit = I searchfor it

and I adapt = relativistic.

2)Law with morality: On the moral question of how fast it is right to drive, there

is no interpersonally checkable source establishing a quantitative limit.

Moral judgments are not in this way relativistic. If I want the safety ofmyself

and others, then I must hold that speeding is wrong wherever it may cause

danger. = These Judgmentsapply universally, they are not restricted by

jurisdiction or territoriality.

Law and state: four possibilities

Gianfranco Poggi suggests that the state is characterized by a group of

attributes:

Organization of governing agencies and differentiation of their function;

Absence of any external power that can dictate policy to governing agencies

(sovereignty); Territorial sphere of the exercise of power; Centralization of

overall governance and formal coordination of the parts; Peaceful coexistence

with other polities in a system of interacting states.

It is important to understand the relationship between law and state. Willian

Ewald said that there are four possibilities:

I) The state is a creation of the law.

I) The state may be considered the only producer of anything about the

question law.

III) The state may be thought coexistent with law, but not identical with it. U IV)

The state and the law may be considered a fully identical entity.

I) The State and law-dependent

This position depends on the theory of natural law. Here law is a set of rational

norms of conduct, into the nature of things and people or by the will of God, or

as a manifestation of God's rationality and goodness. This natural law is like a

moral law= reflection on it (given human weakness and wilfuness) makes it

possible for people to see and to understand their place in an ordered society).

The governor has the responsibility to create rules and also to punish with

severity, those who don't follow these norms.

This model was hindered by the question: *Who or What has the legitimacy to

govern*? In response the theories of "social contract" emerged. John Locke

thought that every person have fundamental rights, which have to be

respected. These rights have to be regulated by a government made up of:

- A legislature

-An independent judiciary (un potere giudiziario indipendente)

-An executive branch concerned with external protection and internal law-

enforcement (un ramo esecutivo che si occupi della protezione esterna e

dell'applicazione della legge interna).

2)The law as state-dependent (based on the idea of social contract)

The controversial thesis is that human governments make laws and some of

these laws confer rights. The only genuine rights that humans can have are

those that law confers, and only when there is power enough to enforce the law

= State.

In Thomas Hobbes's point of view, humans without law are at war with each

other -> people need a sovereign, who has the power to make rules for the

whole community. There is no law anterior to the state, law is the creature of

the human ruler, and it is explicable in terms of the will and commands of the

ruler.

Other thinkers took the Locke theory, without the fiction of social contract =

what mattered was the fact that people were

in a "habit of obedience. Stable governments exist where there are stable

habits of obedience. Law is the commands of those who are habitually obeyed.

Humans live in an "Independent political society", they are subject to it = It is

the state.

State and law as coexistent

3)

Taking in consideration the evolution of society, state and law, there is the

possibility of the two the orders (State and Law) to coexist. Law is rooted in the

usages and practices of humans in social coexistence. In contemporary

societies there are many forms of normative and institutional normative order

independent of the state.

The omnipresence and omnipotence of state-law is now denied. = Unless the

acknowledgement of the legitimacy of the state law becomes established as

part of popular custom, it is precarious and the violence used to support this

pretension to rule will be high. Government and law should be seen as a

historically co-evolving system, with state-law as simply one form of law, most

secure and genuine when supported.

4) Identity of state and law

States are acting subjects, states do things. (They declare wars, they run

health systems, railway systems and more etc) but

How can they act like this? How can they do all these things? = Thanks to the

law. The complexity of organizations that characterize the modern state is

intelligible only in the light of the public law body. Public law is the one who

authorizes people to act and invest with the quality of being valid-state actions.

Hans Kelsen, said that the State is the corporate entity comprising the main

organs of government organized through public law. According to him, the state

does not make the law and the law does not make the state (they are the same

thing, seen from two different points of view).

Lecture 2

Types of constitutions

The problem with typologies:

Constitution can be seen in different ways, it depends on what it is about: a

scholar did the distinction between rigid and flexible constitutions, a

philosopher did the distinction between just and unjust constitutions, a political

scientist between integrative and disintegrative constitutions... These

examples show that a search of one typology of constitution would be in vain.

David Strauss calls a living constitution "one that evolves, changes over time

and adapts to new circumstances". What he said is not fully true, because a

constitution cannot have a change, but it can have different interpretations.

The change is a result of interpretation.

So, what is a constitution? (Identifying the object)

1)Liberal Democratic:

Characteristics:

-Emphasizes individual rights, freedoms, and democratic governance.

-Features a system where citizens have the right to participate in decision-

making through free and fair elections.

Example: Countries like the United States, Canada, and many Western

democracies follow liberal democratic principles.

2)Liberal Non-Democratic:

Characteristics:

-Prioritizes individual rights and freedoms but lacks a fully democratic system.

-Might have limitations on political pluralism or competitive elections.

Example: Some countries may have liberal constitutional elements but lack

fully democratic practices.

3)Non-liberal Democratic:

Characteristics:

-Features democratic governance but may not emphasize liberal principles

such as extensive individual freedoms.

-Democratic practices exist, but there might be restrictions on certain rights.

Example: Countries where democracy exists but with limitations on civil

liberties.

4)Social or Welfare State:

Characteristics:

1)Prioritizes the well-being of citizens through social policies and programs.

-Involves government intervention to provide social services like healthcare,

education, and unemployment benefits.

Example: Nordic countries like Sweden, Denmark, and Finland are often

considered social or welfare states.

5)Social Constitution:

Characteristics:

-Refers to a constitution that incorporates social and economic rights in

addition to civil and political rights.

-Focuses on ensuring social justice, equity, and the well-being of citizens.

Example: Some modern constitutions include provisions for social and

economic rights, aiming for a balanced approach to governance.

These terms represent different combinations of political and constitutional

principles, reflecting the diversity of political systems and ideologies around the

world.

Story:

The complexity of this question can be reduced with the recognition of the

difference between ancient and modern constitutionalism. Modern constitutions

emerged in the eighteen century from the American and French revolutions,

after had gained almost universal recognition at the end of the twentieth

century.It was originally used to describe the state of the human body and it

was soon applied to the political body, but as a descriptive term, not as a

prescriptive term. It means that the basic laws were not the "constitution" of

the country.If the term was used in legal sense, laws regulated individual

behaviour and not governmental once (power to the ruler).French and

American revolutions did not replace an oppressive ruler with another one, but

they established a new political system: they devised (ideato) a plan of

legitimate rule and they distinguished the constitution (laws for the

government) from ordinary laws (laws for people). The modern constitution

said that the sovereignty was of the people. But people were incapable of

ruling themselves, so they needed representatives to govern in their name.

The revolutionaries wanted to establish a limited government and a separation

of the power, in order to guaranteed protection of the individual freedom. After

the collapse of the divinely inspired the medieval legal order (dopo il crollo

dell'ordinamento giuridico medievale di ispirazione divina) all laws became the

product of political will: law was the positive law). It means that the aim of

constitutional laws were to regulate the establishment and exercise of political

power. This gave rise (fece nascere) to the question: how a constitutional law

that emanated from the political process could at the same time bind

(vincolare) this process? The problem was solve by the hier