Introduction to Law

NATURAL LAW | POSITIVE LAW

If we stress the two approaches to their extremes, we can appreciate the terms of the discussion.

In a natural law perspective, should a Parliament enact legitimately a piece of legislation which is unjust, that legislation is no law by definition.

But who is entitled to decide whether the law is just or unjust?

In a positive law perspective, should a Parliament enact legitimately a piece of legislation which is formally perfect, but with hateful contents, that legislation is valid by definition, no matters its content (legal though unjust).

The positive perspective flourished historically together with the establishment of the modern national States.

The centrality of the Parliaments and the trust to the democratic political approach (what is decided in the Parliament is the will of the people) created the conditions for the abandonment of the natural law perspective.

Law is the output of the political debate; justice is a theoretical and

Perceived as written in the DNA of every men and women in the world

APPROACHES- The solve these perplexities by stating that human rights are not the product of a universalistic approachsingle or few legal systems, but are those basic and fundamental principles that any modern society is made of; they are rights perceived as written in the DNA of every men and women in the world2 - 3

In the universalistic even when a State has not ratified an international declaration on perspective,

‣ human rights, the infringement of human rights practiced in those States or not punished in those States has to be condemned by the international community.

It relies that :

‣ a. In many cases those perplexities hide chagrin or exploitation of the freedoms and liberties of the people of those countries;

b. Declaration like the UDHR has been drafted not only by people coming from western countries and cultures, but also by people belonging to different traditions, including Far East and Arab League representative.

Death penalty- The UDHR states that everyone has the “right to life”. According to many human rights activists, the death penalty violates this right.- The UN came to a formal state of mind few years ago, under a strong pressure from some States, first of all Italy, to condemn death penalty as such and persuade all the States still using death penalty to abolish it.- A long way must be walked to get to the abolition of death penalty due to the strong opposition of many countries around the world.

Constitutions

INTRODUCTION- Constitution is another source of fundamental rightsIn this case we do not have the problem of the force and effectiveness of the fundamental rights with respect to the people who are holder of the constitutional rights and must respect other people's rights, since all the people living in the

State are subject to the Constitution, with no exceptions

CONTENTS

If we take a look at the most important Constitutions, in terms of history and influence, we can immediately notice that declaration of fundamental rights is not its only content.

We discover that almost always the Constitutions hold the rules of functioning of the main Powers of the State: Legislative, Administrative and Judiciary Powers

DEFINITION

Constitution: the legal document that holds the set of rule for government, usually codified as a written documents, establishes the principles of the political, administrative and judicial entities of the State, and (usually) holds the list of fundamental rights of the people of that country

The Constitution of the USA

It has been adopted on September 17, 1787 in Philadelphia. It is the shortest and oldest written constitution among the major Western countries. Since 1787 it has been amended 27 times.

It contains:

• The framework of the organisation of the Federation
• The
  • List of the fundamental rights of the USA citizens, collectively known as the Bill of Rights (first 10 amendments, introduced in December 1791)
  • The Constitution of the Republic of France
    • It has been adopted in 1958, but it has been significantly amended recently (2005 and 2008).
    • It comprises the design of the institutional powers of the French Republic, but it does not hold any list of fundamental rights. Nonetheless it recalls in its Preamble the Declaration des droit de l'homme et du citoyen 1789 and the so called Charter for the Environment of 2004
  • The Constitution of the Republic of Italy
    • It has been drafted in 1947 and entered into force in 1948 after the Referendum for Republic held in 1947.
    • It contains:
      • A first part dedicated to the fundamental rights of the citizens;
      • A second part dedicated to the institutional framework of the Italian Republic;
  • The Fundamental Law of the German Federation
    • The Grundgesetz has been approved on May 8, 1949, and entered into force
  with the signature of theAllies as the basic law of those states of West Germany that were initially included in the Republic.- It contains :

  A first part dedicated to the basic rights;

  A second part dedicated to design the framework of the German Federation

  COMPARATIVE ANALYSIS- It is interesting to compare the text of the Constitutions we mentioned in their provisions dedicated to thesingle fundamental rights and see how they differ or match

  Despite the strong historical nature of the Constitutions and the different context in which they have been drafter, they frequently provide for similar (though not identical) provisions1 - 4

  Compare [in law] = is dealing with speculation that (study the differences and similarities)

  By comparing the different legal systems and using the historical criteria we can group them in families

  Balancing is fundamental in human rights application

  Historical roots are important in order to understand the different constitutions

  Social and

  The political aspects of society are always changing.

  FREEDOM OF EXPRESSION:

  - Amendment 1 US Constitution: Congress shall make no law [...] abridging the freedom of speech.

  - Art. 21 Italian constitution: Anyone has the right to freely express their thoughts in speech, writing or any other form of communication [...] Publications, performances and other exhibits offensive to public morality shall be prohibited. Preventive and repressive measures against such violations shall be established by the law.

  - Art. 5 German constitution: Every person shall have the right to freely express and disseminate their opinions in speech, writing and pictures, and to inform themselves without hindrance from generally accessible sources [...]. These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.

  United States

  Italian

  German

  Common law

  Civil law

  Wording:

  - Longer - more precise, specific

  - Shorter one - clear

  what you can and can't do (examples)

  Straight to the point

  They both came after a period of dictatorship [desire to be moreTakes for granted a common specific]and shared knowledge

  · 1 part : examples taken from It is similar to the Italian one,st——— those time experience but it adds something new

  Limitations aren't present in the · 2 part : legal limitations are The right to get informationsndC wording, these does not mean listed [people want to be informedO that you can do whatever you —— (do it autonomously)M want - of course you have more The limitations listed are no ———P freedom more frequent Communication : connectedA No predetermined limits today it is trickier - public to the freedom of speechR ——— morality (what is go