Lecture 2

Question 1

Legal Rule features

Answer 1

• General
• Abstract
• Formal
• “Positive Law”
• Legitimate
• Forcible
• Prescriptive

Question 2

General feature the legal rule:

Answer 2

legal rule appleis to an indefinite of subjects linked with the subjective element of the law
“indefinite”– the law does not refer to an individual specifically; it has to appeal to a non-definite number of subject

Question 3

Abstract feature of legal rule:

Answer 3

strictly bounded to the General feature– the law applies to an indefinite number of situations

Question 4

Formal feature of the legal rule:

Answer 4

legal rule must respect some requisites of form and procedures to be adopted that are established by a higher legal rules (Constitution)
This feature defines the validity and applicability of the legal rule and establishes characteristics like enforceability, coherence, clarity, coherence and consistency

Question 5

“Positive Law” feature of the legal rule:

Answer 5

legal rule= expression of a given “political” (defined as body politik) decision taken by a specific body or institution, for the satisfaction of the general interests.

Question 6

Legitimate feature of legal rule:

Answer 6

the legal rule must be adopted by the competent authority and consistent with the limits as set in its legal source of legitimation of an higher value.

Question 7

Forcible feature of the legal rule:

Answer 7

the formal capacity of the legal rule to produce its legal effects (= be spontaneously obeyed by the subjects); the practical capability of the legal rule to be legally enforced (= if the subjects do not spontaneaously obey)
DIFFERENCE WITH EFFECTIVENESS: a law might be forcible but have no effect due to anachronism (ex. law on fax sending)
Generally speaking a law must possess both features, effectiveness and forcibleness

Question 8

Prescriptive feature of the legal rule:

Answer 8

legal rule prescribes to adopt or not to adopt a human behaviour, reconnecting consequences for failure.
Distinction between “sein” and “sollen”

Question 9

Definition of source of law (facts- and acts-sources of law)

Answer 9

any act or fact that is allowed to modify the legal order, by introducing a new legal rule or by amending or repealing an existent one, accordingly to the same legal order. By doing one of the two one creates a new legal rule.
- facts-sources of law: spontaneous repetitive human behaviours (practices, customs, previous decisions set by other courts) with the idea of following obligations
- acts-sources of law: acts adopted pursuant the “political will” of the legislative body

Question 10

Type of sources of law

Answer 10

• sources of facts (fonti-fatto)= customs, conventions and precedents: repetitive human behaviours adopted by the collectivity that assume judicial relevance
• sources of acts (fonti-atto)= constitution, statutes, regulations, international treaties, EU laws…
• “on production”= source of law identifying the criteria, authority and procedure and limits to create a new legal rule. ESTABLISHES THE LEGITIMACY OF “SOURCE OF PRODUCTION”
• “of production”= determine the regulations and govern the manufacturing process of products; it establishes norms over how services and goods are produced, also concerns environmental, labor and industry regulations (Constitution, primary sources)
• source of cognizance (only in Common Law systems)= legal official notice about the legal norms (= sources of law’s knowledge)