2. The sources of law

Question 1

The source of law

Answer 1

Any act or fact, that is allowed to modify the “legal order” (“ordinamento giuridico”), by introducing a new
legal rule, or by amending or repealing an existent one, accordingly to the same legal order

Question 2

TYPES OF SOURCES OF LAW: Acts

Answer 2

Constitutions, Statutes, Regulations, International treaties, EU laws, . . .

Question 3

TYPES OF SOURCES OF LAW: Facts

Answer 3

Customs, Conventions(and Precedents-case law: only in Common Law system)

Question 4

TYPES OF SOURCES OF LAW: On production

Answer 4

is the source of law that identify the competent authority, procedure,
criteria and limits of another source of law (e.g. the Constitution for the legislative process)

Question 5

TYPES OF SOURCES OF LAW: Of production

Answer 5

is the source of law that introduce, modify or repeal legal rules (e.g., a
single statute, adopted following the legislative process, the adopts, modify or repeal, a certain legal provision)

Question 6

Nature of the legal interpretation

Answer 6

The function of discovering and expounding the intended signification (i.e., “norm”) of a legal text (i.e., “disposition”) in
order to apply that meaning (i.e., “legal rule”) to set a legal case

Question 7

TYPES OF INTERPRETATION

Answer 7

▪ Clear and proper meaning
▪ Logical connection
▪ Systematical connection
▪ Original legislative will (“intentio legislatoris”): only if it is not totally “anachronistic”
▪ Pursuant to the Constitution

Question 8

INTERPRETERS

Answer 8

▪ The judges (→ “giurisprudenza”)
▪ The law professors (→ “dottrina”)
▪ The public administration (→ “circolari”)
▪ “Anyone…”
▪ The same legislative branch: only for the authentic interpretation

Question 9

Lacuna

Answer 9

As a consequence of a “gap” (legal vacuum) in the legal order, there is no “proper” rule to be applied to
a case

Question 10

Lacuna: Common Law

Answer 10

The judge finds the proper rule in the common law (i.e. create a new rule setting a precedent)

Question 11

Lacuna: Civil Law (like Italy)

Answer 11

The judge finds the proper rule in the statutory law (i.e. must find the rule in another legal text in force)

Question 12

Lacuna: Analogy

Answer 12

finding the rule in “similar” statutory dispositions, then finding the rule in the “general principles” established in the Constitution

Analogy shall not be used in criminal law

Question 13

Antinomia

Answer 13

There is a contradiction (i.e., incompatibility) of meaning between two, or more, different legal rules
(belonging to different sources of law), all “potentially” applicable to a legal case

Question 14

Antinomia: Criterion of Chronology

Answer 14

(based on “time” of entering into force) → REPEAL

Question 15

Antinomia: Criterion of Hierarchy

Answer 15

(based on “force” of the source of rule: constitutional, primary, secondary, tertiary) → ANNULMENT

Question 16

Antinomia: Criterion of Specialization

Answer 16

(based on “general/specific” area of the rule) → CO-APPLICATION

Question 17

Antinomia: Criterion of Attribution

Answer 17

(based on “matter” of attributed legislative power) → NON-APPLICATION (or annulment)