Chapter 1: The Legal System

Question 1

A rule (definition and types)

Answer 1

A rule is a statement that directs human conduct. Personal, factual, general and abstract rules govern what behavior is compulsory, prohibited or lawful.

Question 2

Rule of law (definition)

Answer 2

A rule of law is a rule applicable to a specific legal provision.

Question 3

Sanctions (definition and types)

Answer 3

Sanctions allow the enforcement of legal provisions, ensuring their effectiveness. There are civil (e.g. compensation for damage), criminal (e.g. imprisonment), and administrative sanctions (e.g. fine).

Question 4

Distinction between laws and norms

Answer 4

Humans can normally distinguish between laws and NORMS. Essentially, laws have applicable sanctions.

Question 5

Sources of law

Answer 5

Sources of law include written and unwritten sources, case law (ruling based on previous cases), and legislation.

Question 6

A plurality of legal systems

Answer 6

A plurality of legal systems exist; however, you only consider the domestic law depending on the point of view you are considering (in Italy apply domestic Italian law).

Question 7

Closed legal systems (definition)

Answer 7

Closed legal systems are those where there is a distinction between codification powers and juridical powers (one can only create laws and the other can only apply them).

Question 8

Hierarchy of sources of law

Answer 8

1. Constitution - primary source of law. It lays down the fundamental rights and duties towards the Republic and towards society.
2. Ordinary law - made up of statues/acts of parliament, legislative decrees, regional laws/laws of autonomous provinces and referendums (in decreasing importance).
3. Domestic Regulations - issued by ministries, regions, provinces or municipalities.
4. Customs - only non-written source of law. For a custom to become a source of law it must a) be a conduct repeated in time and shared by a distinct community and b) people must believe it corresponds to a duty under law (believe it is a source of law).

Question 9

Procedure for law approval

Answer 9

Laws must first be approved by parliament, then by the president of the republic and finally published in the official gazette.

Question 10

How to resolve disputes between different sources of law (two things).

Answer 10

1) Hierarchy

2) Newer sources prevail over previous ones.

Question 11

Principle of precedence of EU law

Answer 11

According to the principle of precedence, all EU law is > national law. If a domestic law opposes EU law, it loses its power. The EU law is absolute.

Question 12

Role of the European Court of Justice (ECJ)

Answer 12

EU law Is enforced by the European Court of Justice (ECJ). They are also responsible for solving

Question 13

The “direct effect” of EU Law

Answer 13

Eu law is subject to the principle of direct effect; can be directly invoked to any national court. Direct effect may be vertical (state-individual) or horizontal (individual-individual). Direct effect is applicable provided that the laws are clear, unconditional and do not call for additional measures.

Question 14

Conditions where laws may be reappealed

Answer 14

Laws may be reappealed if lawmakers decide it is incompatible with a new law or if it’s encompassed by another law.

Question 15

Obsolescence

Answer 15

When a certain conduct violating a law becomes a social norm, it can no longer be enforced due to obsolescence.

Question 16

Principle of non-retroactivity

Answer 16

The principle of non-retroactivity means that new laws can only be applied to future incidents.

Question 17

Private International law (which laws to be applied in international contracts)

Answer 17

o The will of the parties always prevails. If there is no decision, then apply the law of where the debtor resides.
o National law applies for legal capacity, personal relations between spouses (where most of matrimonial life is located) and succession (although will of individual also counts).
o Law of place is applied for possession/ownership/etc., criminal acts, tort liability and the distribution of G&S.

Question 18

Why does the legal system affirm its own credibility?

Answer 18

To avoid an endless cycle whereby there are laws that govern the creation of laws (endless legitimization).