Lecture 5 Flashcards
Judges in the system of Civil Law
Judges must only apply the acts of the lawmakers through interpretation of the already existent statutory law. These acts are not binding but rather exercise a persuasive action
BINDING ARE: judgements of the Constitutional Courts and those of the Court of Justice and of the European Court of Human Rights
JUDGES’ MAIN ROLE= interpreting an already existent legal system
System of “Common Law”
Judges must take into account the PRECEDENTS established by judges in previous similar cases along with the acts of the lawmakers (Constitution, statutory law, regulations)
JUDGEMENTS HAVE A BINDING VALUE; LEGAL DOCTRINE DOES NOT HAVE A SIGNIFICANT ROLE FOR THE JUDICIARY= NOT BINDING
System of “Islamic Law”
Sources of law= Quran and Sunna (“Sharia”), combined with previous commentaries and legal responses (=”fawta”) that have been produced by the religious authorities= Ulema
Alongside that for judgements it is needed to take the acts of the lawmakers into account too
Religious law= intended as state law (hence different from Canon and Jewish Law)
System of “Chinese Law”
Mostly a civil-law system adapted accordingly to the socialist doctrine and traditional rules (“Fa/li”) coming from Confucianism
Judges cannot create laws and must apply the interpretation provided by the Communist Party
System of “Customary Law”
Mostly a common-law system that but recognizes a significant role which is played by the customary law spontaneously created by groups of people.
What is statutory law (“diritto legislativo”)
What is regulations
In general= law created by acts of the Parliament
Other definition= rules created by a legislative body
Regulations= result of the legislator but they have not the same value as the acts approved by the Parliament
Rights toward the State
- liberty (“negative”): coming from an abstention of the State to safeguard one’s personal liberty
- political (“participative”): capability of taking part into the public and political life of the state
- social (“positive”): coming from an intervention of the State (ex. education, health)
- economic (ex. property)
Rights with respect to private natural and juristic persons
- absolute (“erga omnes”): in the sense of sacred with respect to everything (ex. life)
- relative (“inter-partes”): specifically between two persons, either natural or juristic, regarding a specific subject (bank loan)
Subject of rights/ right holder and categories of rights (not intended as civil, political,…)
They are worth for both natural or juristic persons
- individual= singular natural/ juristic person
- collective= right exercisable only with others (ex. of aggregation)
- communitarian= right recognized only to a community or group of people
Content of rights
- personal (non pecuniary: ex. life)= moral rights
- economic (pecuniary)
1. in rem = possessions/ valuable goods
2. in personam= valuable performances
Level of recognition of rights
= level at which the right is recognized and protected
- international human rights
- constitutional human rights
- legislative rights: recognized only by statutory law (ex. abortion), not the Constitution
- customary rights
Guarantees
- EUCFR/ ECHR/ International limits to national powers
- constitutional limits to the legislative, executive and judiciary powers
- statutory limits to executive and judiciary powers + reserve of judicial authority impedes interferences by the executive
Duties towards the State
- solidarity (ex. social activities)
- political (ex. military service, vote)
- economic (ex. taxes)
Duties towards private natural and juristic persons
- public
- obligations
Holder of duties
- individuals
- state (ex. the State must protect public helath and assure education)
- government authorities (public officials)
