Public law

Public law

Law: set of legal norms. Public law: specific set of legal norms. Public means related to the State.

Constitutional law

Constitutional law is a part of public law (it’s broader). Main object of study: the State.

Legal system and the state as legal system

Legal system: elements and definitions

Whenever humans enter into forms of cohabitation or coexistence with others, legal systems emerge. This concept is well summarized by the Latin maxim, ubi societas, ibi ius = when there is a society, a group of people, there is law → therefore, law is a social product.

In order to have a legal system, we should consider its constituent elements:

• Certain number of subjects (people) who make up a social group and are connected to each other by one or more common goals or interests.
• Set of legal norms which lead to the emergence of favorable legal situations (rights) and unfavorable situations (obligations, burdens).
• An institution/authority assigned within the group. Organization exercising legitimate power (= rules that are established are acceptable by the rest of the group).

Throughout the XX century, public law scholars have often clashed over the true nature of legal systems. These debates formed the basis of different classifications still in use today.

Two main perspectives in scholarship

• “Normativistic” approach: theories of Hans Kelsen and the Vienna school
  • Legal system on the basis of the normative element: legal norms which are classifiable by structure, validity, effects, and position in the hierarchy of legal sources.
  • Main feature: the faculty and the role that norms have in order to legislate.
  • An act gains its legal-normative meaning by another legal norm that confers the normative meaning on it.
  • An act can create or modify the law if it is created in accordance with “higher” legal norms that authorize its creation.
  • In the end, legal norms are binding norms, based on a foundational norm (Basic Norm), attributing them their binding (prescriptive) nature.
• “Institutionalistic” approach: Italian jurist Santi Romano
  • It places value on sociological elements such as the nature and makeup of the group itself → main focus: organization.
  • A social group, to be considered as a legal system (in order to allow us to consider its norms as “legal” norms) should be organized in the meaning that it should have an institutional organization.
  • Based on institutions.
  • The law cannot be simplistically reduced to legal norms. This implicates that every organization, that includes a system of norms and shares a collection of laws and regulations, can be effectively considered a social institution.
• “Normativistic + Institutionalistic”: we can assume this is the definition of LAW= “Legal system is a system of rules that are enforced through social institutions to govern behavior”.

Elements of a legal system

I. A group of subjects, connected to each other by one or more common goals or interests.

II. An institution, namely an organization that exercises legitimate power, that has means of coercion, but whose orders are generally accepted by the rest of the group.

III. A set of legal norms, that qualifies relationships and conducts by the group members as favorable (rights, faculties, legitimate interest) and unfavorable (obligations, burdens).

Legal vs non-legal norms

Relationships among members of the same social group are regulated by numerous norms, only some of which, nevertheless, can be properly defined as legal/juridical in nature. The sole fact that a norm attends to govern relationships among members is not sufficient to define such a norm as juridical or legal.

Legal norms are those that are produced solely by a legal system:

• According to the normativistic perspective, the only “true” legal norms are those produced by the government, or State legal system, or rather those that are given (State) legal system internally recognize, and that produce binding effects on the members of the group (such as sanctions or punishment). Monistic perspective.
• According to the institutionalistic perspective, any legal system produces legal norms. Pluralistic perspective.

Legal norms are therefore produced by the government or state legal system, the source is that a given system internally recognizes, and which have the power of producing binding effects on participants in the system, as well as constantly developing the system itself.

Characteristics of legal norms

• Effectiveness: the concept of effectiveness describes the ability of a legal system to impose binding rules or norms on its participants or members. (A legal system can be considered binding and therefore effective even though occasional and limited violations of a single norm may occur by certain individuals). Effectiveness means the ability of a norm to produce its own legal effects or rather to be imposed as a legal duty on participants in that system. The effectiveness of a legal system is a necessary condition for a norm to be valid or rather legitimately enacted. Legal norms remain valid only so long as the legal system from which they derive remains effective.
• Force: also called “force of law”, refers to a norm’s ability to innovate the positive legal system (= the actual legal system established).
• Validity: norms produced in conformity with the rules on the production of law. Law bases its validity on having been legitimately produced by a valid legal system. The validity, therefore, results from its effectiveness and at the same time, it is a necessary condition for the validity of legal norms comprising the system. ≠ invalid (void).
• Generality: the legal norm applies to an indefinite number of people (in our era starts after the Second World War).
• Abstractness: this refers to the possibility of the legal norm applying to an indefinite number of situations, repeatedly over time, rather than una tantum.
• Produced by sources: act and facts; these powers reside initially in the Constitution that is the basis of legality and validity of the sources which are hierarchically subordinate to it.

In any legal system, it is necessary that the system identifies, by special rules on the production of law, which sources produce legal effects: the legal sources are the acts or facts that produce legal norms.

Positive law vs natural law

All legal norms are “positive”, meaning that they are produced all by a legal system, that can enforce them?

Positive law: derives from Latin positus, meaning “established” → norms that are produced by a legal system.

Natural law: legal norms that exist on their own, such as the divine laws or the “natural rights of man”.

Example: Nuremberg trial

Nazi defendants objected to being put on trial for simply following orders and the laws of their country.

So, on what basis could the victor nations presume to convene these war crimes trials in Nuremberg?

The answer to that question is found in the opening statement of the lead prosecutor at Nuremberg, Robert Jackson, who was also a justice on the United States Supreme Court at the time:

The Nuremberg Court rejected the argument of Nazi defendants saying that even though the defendants were following orders and laws of their country, they were found guilty of violating a higher law to which all nations were equally subject.

Sir Hartley Shawcross, the British prosecutor, said that there could be no immunity “for those who obey orders which – whether legal or not in the country where they are issued – are manifestly contrary to the very law of nature from which international law has grown.”

After the 2^nd World War, it grows a tendency toward the “positivization” of natural law:

• International law on human rights.
• Constitutions of the “Constitutional State/Constitutional Democracy”.

Classification of legal system

Diffused/concentrated

Depends on the intensity or degree of community ties among members:

• Diffused: the authority has very weak power and the maintenance of the community depends on agreements between members (example: international law).
• Concentrated: strongest central authority does exist (example: State).

Voluntary/necessary

Depends on the nature of community or social ties:

• Voluntary: cohabitation of members is not forced (ex. sport associations).
• Necessary: the affiliation is not based on individual choice, except with narrow limits (migrations, transfer of residence...).

Territorial/Non-territorial

• Territorial: The territory is embordered by the legal system. The territory is the base of the affiliation for members of the group (ex: State).
• Non-territorial: the territory is not necessary for the affiliation. It is not the basic element of the system itself.

General/Non-general

Depends on the goal and ends pursued:

• General: are aiming, covering all the needs of the members of the group (ex. the State).
• Non-general: the aim is to pursue specific goals such as sport, cultural associations, a trade union.

Sovereign/Not sovereign

Depends on the type of authority exercised:

• Sovereign: holds sovereign powers.
• Non-sovereign: use of legitimate force requires permission from an external authority.

Independent/derived

Depends on the relationship with other legal systems:

• Independent: arising on their own.
• Derived: originated from other pre-existing legal systems.

The state as a legal system

The STATE is a concentrated legal system, necessary, territorial in nature, focused on general aims, independent, and sovereign. (based on the features listed)

Definition of the State

The definition of State, by Italian scholars, is the one given by Constantinople Mortati, 1946-47 (member of the Constituent Assembly):

“The State is a legal system having general ends and objectives which exercises sovereign power over a specific territory, to which the subjects or participants, belonging to such system, are necessarily subject and subordinated.”

Public law vs private law

• Public law = a set of legal norms produced by the State legal system to regulate:
  • Organization of the State, the institutions.
  • Relationship State authority/members of the group.
  • Relationship State/other States/legal system outside the State.
  • Production of the State legal norms.
  • How to become members of the group (nationality).
• Private law = a set of norms on relationships among members of the group (most of them produced by the state).

Common law vs civil law

Circulation of models

• Trans-judicial communication
• Cross-judicial fertilization
• Cross-judicial dialogue
• Migration of legal ideas
• Engagement with foreign law
• Internationalization of Law
• Global Law

Forms of state

Form of State: (forma di Stato) rules and principles that govern a state legal system; it defines the relationship between the State that can legitimately exercise coercive power, and the citizens.

N.B. It’s a concept developed by scholars (not part of the positive law). In the Italian Constitution 1948, we don’t find a proper definition of what a form of state is. In Article 1 we can find this definition regarding Italy as a form of state, but not in general. (before 1948, there was Statuto Albertino)

A scholar of Italian public law and member of the Constituent Assembly, Costantino Mortati, defined the form of state as “the relationship between the holder of power and the subject of that power and therefore the various aspects of the relationship between authority and liberty.”

Form of Government

(forma di Governo) refers to the set of rules concerning the distribution of power among the branches of government; it defines the relationship between constitutional bodies, different institutions such as those organs which are above all the others and have the same level of sovereignty and independence.

Essential difference between the two definitions: Citizens − institutions vs institutions − institutions.

In many respects, the expressions “form of state” and “form of government” are notions that specifically derived from Italian public law. In fact, in the United States and in Britain these two terms are often treated as synonyms with the term “form of government”. Why? Because the term government in English has a far wider meaning than the word “governo” in Italian:

• “Governo”: refers to the executive power (more precisely the Council of Ministers).
• “Government”: refers to the state as a whole using the term “branch of government” to define the legislative executive and judicial powers.

What in Italian are classified as “forme di governo” are often referred to as “regime types” or “systems of government” in English.

Origins of the state

The feudal society (or patrimonial state)

We cannot really talk of a state (the state didn’t exist in the Middle Age, there was a society) → because there was a total identification of the Feudal lord with the property of the land and the power he could exercise over the peasants. Therefore, the feudal society is sometimes defined as “patrimonial” because the aim was not that of fulfilling the general interests of the people, but simply that of meeting the needs of the Lord and his manor.

• Organised on the basis of private agreements and contracts between individuals (feudal lords).
• Aim: protecting the land and its related possessions from external attacks.
• Possessions of land gave rise to a series of rights.
• The feudal lords had also the right to administer justice and to collect taxes.

Legal particularisms existed: differences between people, territorial and legal fragmentations; heterogeneity and diversity of legal systems in the provinces, principalities, and cities of a single state. The feudal system was characterized by a high degree of power dispersion and by an overlapping of numerous legal systems.

The origin of the modern state

The concept of a legal system is ancient as we can go back to the two great pre-existing realities, the Catholic Church and the Holy Roman Empire. Nevertheless, the modern idea of State has its roots in a process of change that happens more or less in the 14^th century. The date conventionally assumed to indicate the advent of the State-model is 1648: the State as a form of organizing political power with some specific features was established at this moment = Peace of Westphalia at the end of the War of 30 years.

A crucial moment: the Westphalian system, its form of organization is a key element and still actual today. What happened? For the first time the sovereignty of the State was recognized.

Sovereignty

• External sovereignty or independence from external powers (by then were the Catholic Church, and the Holy Roman Empire). The existing kingdoms established their independence from these external powers, external forces, stop recognizing the existence of any superior political authority. Begin to practice a real “ius excludendi alios” (= law excluding others).
• Internal sovereignty within the territory of the state. The State power is not limited but it is rather unconditional, since it is sovereign; it is able to become the monopolist holder and exerciser of the power of rule (imperium) within a particular territory [supremacy: summa potestas legibus solute]

The absolute state

The State is a product of the Western tradition (Europe) that has then exported. The first form of state is the absolute state. Beginning in the 14^th century, we have the gradual passage from feudalism → absolute state. This transformation was determined by two power shifts:

1. Land → money: land, the basis of power in medieval society, lost its importance, moving towards a money society.
2. Feudal lords → kings: progressive unification of certain territories under the power of a single monarch.

N.B. These developments occurred in different ways and to different degrees from country to country: the economic development in England was such that many commentators and historians claim that England never really went through a period of absolutism, while the story is different when it comes to continental Europe and in particular France where there was a strong institutional system.

Features of the absolute state

• Concentration of power in the hand of one person, the king. There was an attempt to impose uniform rules (important for economic development) throughout the territory over the subjects ≠ legal particularism of the feudal society.
• Public administration established centralized bureaucracy with the purpose to collect taxes and administer justice (large standing army to expand policies at home and abroad).
• As far as the economy, the State is interventionist e.g., economic protectionism and to a limited extent he tried to fulfill the general interests of the people and not just the needs of the Lord as occurred during feudalism.
• As far as external relations, expansionist foreign policy (time of beginning of colonialism and geographical exploration).
• “Enlightenment absolutism”: the Monarch was positively influenced by the principles of enlightenment. Just like the rulers of conventional absolute states, these monarchs were convinced that they had the right to govern by birth and therefore they were reluctant to grant constitutions, but they did recognize certain individual rights, such as freedom of speech and the right to property, and they tended to foster religious tolerance. In general, the monarchs of enlightened absolute states ruled with the aim of improving the lives of their subjects. The famous motto that summarizes this concept is “Everything for the people, nothing by the people”.

As a consequence, of the crisis of the...