Introduction to Public Law - 1 canale, 1st Midterm

Lesson 4: The Legal Systems: Civil Law and Common Law + Hadley vs Baxendale

To sum up: positive law is created by judges when they apply laws for an individual case, taking already decided controversies as reference. In this way, judges become a source of legal rules. All of those types of law belong to positive law: they are made by someone and only count as law when we know who made them. No legal norms come into existence without being brought into existence by someone.

The legal systems

The concept of separation of powers tells us that we have to make a distinction between legislation and jurisdiction:

• Legislation is about creating laws (normative texts) which are expressed using a text approved with the intent of creating rules. It is an exercise of authority by someone who expresses their power. It is necessary to interpret the text to understand its normative meaning.
• Jurisdiction is about the application of law and is up to the judges (officials who are in the position of solving controversies by applying the law).

Legal text can express different things and there can be different interpretations: the judge must look at the purpose of the legislative act, but they also participate in the creation of laws, for example by taking rules expressed in general terms and applying them to a given case or by applying laws which regulate matters similar to a case that doesn't have a precise regulatory law. Law is the only instrument to govern society.

In western Europe, we may recognize two families: common law and civil law. These two realities converge with each other in some occasions.

CIVIL LAW: takes its roots from ancient Rome (ius civile), but its true origins are even more ancient. Then Justinian decided to codify a system of written rules that could be used as a text of reference. Generally, in civil law jurisdictions, there is a system of codes which is the main source of law. Civil law countries base their preparation on theoretical

and abstract concepts —> the task of the judge is the creation of individual legal rules from general rules;

COMMON LAW: its origin and development are associated with the feudal systems, in particular England; the idea was that courts had to apply uniform rules (the common law of the land) through codification and the “rule of the precedent” which gave stability and continuity to the legal system; if a new situation resembled a prior case but wasn’t exactly the same, then different possibilities were open to the judge:

1. Apply: apply the rule of the earlier case;
2. Distinguish: leave the application of the previous decision limited to that specific situation, this case allows flexibility to the system in order to develop;
3. Overrule: upper courts could brand an earlier case as erroneous and overrule it, providing a new precedent for the point involved;

In common laws countries the education is entirely based on decided cases —> the task of the court is to extract

From individual legal judgments a more general rule; EX. US legal system

US legal system has its basics coming from the British system but the source of law is a written constitution, so we can consider it a mix between the common law and the civil law: even if there is a written constitution, the supreme court and judges must rely on previous judgments;

The federal judiciary is organized in three levels:

1. Inferior level: District court;
2. Second level: Court of appeal;
3. Third and top level: Supreme Court, whose issued judgments have an effect on every other court;

The difference between American and French Revolution and their consequential constitutions are:

1. Constituent powers: the US constitution is the product of the supreme law of the land while, in the French legal doctrine, parliament is the living embodiment of the people and has no legal limits, so constitutional law and ordinary law are both expression of the sovereign will of the nation
2. Level of government: the French state maintained a

unique level of government while the US chase a completely different path —> 13 former colonies with the creation of the constitution became sovereign states with a pluralist presence of powers —> these 13 states created a Confederation composed by fully independent states which decided to regulate some matters under a common frame, so the Confederation had a General International Law which regulated the relationships among the states —> there were different levels of government which are still present in today's Federalism; the idea of power distribution is in strict connection with the idea of democracy: spreading power among different levels means bringing it closer to citizens. The EU integration is a similar process to the American one but, in Europe, there is also an opposite movement: the regionalism, adopted for instance by France, Italy and Spain: unitary entities, like states, adopted an organization based on the distribution of

powerbetween local entities.

Hadley vs Baxendale

Is a leading English contract law case, it sets the leading rule to determine consequential damages from a breach of contract: a breaching party is liable for all losses that the contracting parties should have foreseen, but is not liable for any losses that the breaching party could not have foreseen on the information available to him

Lesson 5

Federalism and Regionalism + McCulloch vs Maryland

Federalism

This term refers both to a static-structural and a dynamic-procedural dimension: the rstone refers to the concrete organizational forms assumed by federalism, the second concerns federal processes like the historical evolution and development of a union between several communities; the process of federalizing means that a number of separate political communities enter into arrangements for working out solutions, adopting joint policies, and making joint decisions on joint problems and also the process which bring a unitary political community into

1. Diachronic: historical-social changes in chronological order;
2. Synchronic: how an entity works in a given period;

Since the definition of the federal state as a system of division of powers which allows central and regional governments to be coordinated and independent, each in a given sphere was no longer possible, federations and their member states began to establish relationships of interdependence and this caused a power centralization —> two new concepts were born:

• Cooperative federalism: political interdependence of different levels of government; becomes a competition over competition —> citizens start to lose the ability to distinguish the individual responsibilities of each government level;
• Deparliamentarization: executive powers started taking decisions that are subsequently imposed on their

respective legislative assemblies;
Federal principle: method of dividing powers so that the general and regional governments are both, in a sphere, coordinate and independent;
—> Origin of federal phenomena:
1) Protection against external threats;
2) Eliminate the possibility of an internal conflict;
3) Need for a greater institutional and economic efficiency;
4) Conflict management;
5) Multi-culturalism/Multi nationalism;
6) Democratic factors: increase democracy, control of the rigidity of majority rule, closer relationship between institutions and citizens;
Distinctions between Confederation and Federal states:
—> Federal states: pre-existence of sovereign legal entities that conclude a pact of a constitutional nature and status, which gives rise to a new entity;
Structural features of federations:
fl fi fl ffi ff ff fi- Existence of a second chamber which represents the interests of the member states;
- Member states participation in constitutional review which guarantee the

The relationship between federalism and constitutionalism is closely intertwined. Federalism refers to the division of powers between a central government and individual member states or regions. Constitutionalism, on the other hand, refers to the adherence to a constitution that outlines the powers and limitations of the government. In a federal system, there is a vertical division of powers, meaning that certain powers are reserved for the central government while others are delegated to the member states. This division helps to ensure that the opinions and interests of the member states are not overlooked when making changes or decisions. There are two ways in which federations are created: "coming-together federalism" and "holding-together federalism". In the former, member states voluntarily come together to form a federation, while in the latter, a central authority holds the member states together. Confederations, on the other hand, have a similar dynamic procedure but with fewer and limited powers in respect to member states, which retain their sovereignty. The decisions of the confederation are subject to veto power by the member states, and they also have the option to legally leave the confederation unilaterally. Another difference between federations and confederations is the nature of their constitutive acts. Federations have a constitution that outlines the powers and limitations of the central government and member states. In confederations, there is an international act that establishes the confederation and delegates limited powers to it. The European Union (EU) is often cited as a contemporary example of a confederal structure. Member states in the EU retain a significant degree of sovereignty and have the power to veto decisions made by the EU. The EU operates under an international act rather than a constitution.

like sovereign states, they could decide to leave the Union and the organization operates on the collection of treaties which require the consent of all; however in other aspects the EU surpassed the status of a confederation and there are more proper historical examples: ex Swiss confederation, ex Netherlands, ex German Bund, ex USA—> it demonstrates that confederations are likely to fall apart to develop into federal states

Regionalism

Regionalism is a process that leads territorial subunits, in or across sovereign states, to increase their influence —> regionalised states have developed local or regional tiers of governments which directly elected councils; unlikely the regions of confederations, the regions in regionalised states remain subordinate to the central government and stand in a weaker position relative to the centre than regions in a federal state;

There are three groups of unitary decentralized states, in Europe: increasing/strong/weak of regional autonomy;

There are 4 levels of governments (unitary, regional, federal, confederal) and 4 elements to distinguish the types of government:

1. Allocation of legislative power;
2. Allocation of judicial power;
3. Representation in the upper house;
4. Constitutional amendments power;

McCulloch vs Maryland (1819)

Federal legislature enacted a law by which the federation has created a national bank, the power was that if we look at the federal constitution, there is no such power for the federal progress and the X Amendment says that "the powers not delegated are reserved to the States respectively or the people" —> some states were not happy with the creation of this national bank, for example Maryland, which imposed an annual tax of 15.000 dollars; McCulloch (chief cashier of the national bank) refused to pay and was sued by Maryland; Maryland won the first judgement and McCul