Term
| What are Primary and Secondary Sources of Law in the EU? |
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Definition
- Primary Sources: Also known as "original law," these are the fundamental legal texts, including treaties, constitutions, and international agreements. They are at the top of the legal hierarchy and their supremacy is protected by the European Court of Justice (ECJ), which ensures their proper interpretation.
- Secondary Sources: These consist of legislation (such as regulations, directives, and decisions) created to implement the principles established by primary sources. The ECJ also has jurisdiction over interpreting these laws.
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Term
| What are the binding acts in EU secondary law? |
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Definition
- Regulations: Establish general, abstract rules that are directly effective in national systems without needing further implementation. Legally binding across all Member States.
- Directives: Bind Member States to achieve certain objectives, but allow flexibility in how to implement them. If a directive is "self-executing" (precise and not implemented by the deadline), it can be applied vertically against uncompliant States.
- Decisions: Binding acts that address specific legal persons or Member States to whom they are directed.
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Term
| What are the non-binding acts in EU secondary law? |
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Definition
- Recommendations: Invitations to Member States to adopt specific behaviors. Not legally enforceable.
- Opinions: Express the position of EU bodies on specific topics. Also non-binding and not enforceable.
- Note: Recommendations and opinions are not laws in the strict sense, as non-compliance does not lead to sanctions.
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Term
| What is "soft law" in the EU? |
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Definition
- Definition: Atypical, non-binding acts used by EU institutions to achieve goals outside their specific competences.
- Examples:
- International agreements: Clarify relationships between EU institutions and provisions in founding treaties.
- Instruments of communication:
- Green papers: Outlining frameworks for specific topics.
- White papers: Creating debates on specific topics.
- Plans of action: Interventions on specific issues.
- Guidelines: Directives for behavior and policy.
- Codes of conduct: Standards for ethical behavior.
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Term
- How did Italy accommodate the conditions of EU law?
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Definition
- Italy willingly accepted the conditions of the Treaty for a unified Europe, which affects national sovereignty.
- Unlike other states, Italy did not need to amend its Constitution upon joining the European Community, thanks to Article 11, which permits sovereignty limitations to promote peace and justice, on conditions of equality.
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Term
| How do EU directives interact with Italian law? |
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Definition
- Directives: Require action from the Italian government to be implemented, as they are generally not directly applicable within the Italian legal system.
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Regulations do not require the intervention of State law. Conflicts between European regulations and Italian primary sources of law are to be resolved by the non- application of the latter.
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Term
| When are legal systems created? |
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Definition
| Whenever humans enter into forms of cohabitation or coexistence. |
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Term
| What are the main elements of a legal system? |
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Definition
They are :
People -> with common goals and similar criteria of evaluation
Relationships -> amongst the group, they can be favourable or unfavourable
Power -> assigned by the group within the group
Authority -> has the means to legitimate the use of power |
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Term
| By what legal systems can be classified? |
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Definition
-The intensity of community ties -> fluid and widespread if the central power is weak. Rigid and concentrated if there is a strong central power
-Nature of community ties -> voluntary if cohabitation is not forced or necessary
-Relationships with the territory -> territorial if birth or permanence is fundamental or non-territorial otherwise
-Common goals -> general if it tries to cover all members need or limited if it aims to pursue a specific goal
-Relationship with other legal systems -> independent if not originated from other legal systems or derived
-Type of authority -> sovereign if it holds power, non sovereign if it needs another authority to be legitimated |
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Term
| When did the State was born? |
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Definition
| In 1648 with the signing of the Peace of Westphalia |
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Term
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Definition
Concentrated legal system which has 3 main elements:
-People -> individuals based in the territory that accepts the Sovereignty
-Territory -> Geographical area that delimits the boundaries where a State has power
-Sovereignty -> authorities able to exercise power |
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Term
| Which ones are the main theories to legitimize sovereign power? |
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Definition
Theocratic -> divine authority
Legitimization -> Grounded in historical roots of royal institutions
Contractualist -> State formed by a collective voluntary pact
Nation-based -> Sovereignty is conferred in the Nation
State-based -> Sovereignty is conferred in the State
Democratic constitutionalism -> Sovereignty belongs to the people |
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Term
| What are the characteristics that legal norms must have? |
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Definition
Effectiveness -> The capacity to impose binding rules
Ability to innovate -> self explanatory |
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Term
| What are the 2 characteristics of a legal norm? |
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Definition
Effectiveness -> capacity to impone biding rules on its partecipants
Capacity to improve and develop the legal system |
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Term
| What is a State principle? |
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Definition
| Principle -> term that indicates the ethics and morals at the foundation of a society, the principle represents toward what a State should aim |
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Term
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Definition
| Value -> goal that must be accomplished in order to accomplish the Principle |
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Term
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Definition
| A Constitution is the fundamental law at the base of a State. it reflex the principle and the values of a community. Locke says that the Const. is the contract between Government and governed |
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Term
| Define the 3 tasks of the Constitution |
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Definition
Create State institutions
Regulate relationships between Institutions
Regulate relationships between Institutions and privates |
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Term
| Define the forms and the requirements of a Constitution |
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Definition
Forms = written or unwritten (uncodified)
Requirements = They should not rule every aspect of the State and be rigid and flexible to represent each society's values |
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Term
| What do we mean by rigid Constitution? |
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Definition
| That in order to remove or modify an article inside of it a special procedure must be held |
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Term
| Difference between political and legal Constitutions |
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Definition
Political -> those who exercise political power are held constitutional account through political means (Parliamentary scrutiny)
Legal -> those who exercise political power are held constitutional account through legal means (law and courtroom) |
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Term
| Give the definition of separation of powers |
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Definition
| It is the division of government power into distinct branches to avoid that one branch may overcome another. Each function is carried on by a specific institution, totally separated from the other two |
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Term
| Define the three main separations of power of a liberal democratic state |
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Definition
-Legislative
-Executive
-Judicial |
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Term
| How did the "people" term changed over time? |
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Definition
15th -16th centuries people = the ones that are governed
Modern view people = the ones that hold the true sovereignty and stipulate a contract to be together and to accept the same rules.
Hobbes -> pactum subiectionis = free choice to submit to absolute power of the ruler
Locke -> power is delegated by the people, inviolable rights must be guaranteed otherwise power can be revoked by the people
Rousseau -> legitimacy of power based on general will |
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Term
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Definition
| Temporary group of people that are living in the territory of a State, independent of their citizenship |
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Term
| Define the doctrinal theories of people |
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Definition
-Constitutive element of a State
-Object of State sovereignty
-Subjects of rights towards the State
-Creators of the State's will |
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Term
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Definition
Is the condition of belonging to a State, from which derives rights and duties
Main forms to gain the citizenship are:
Ius sanguinis
Ius soli
Ius conubii
Ius domicilii |
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Term
| Define the notion of Form of State |
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Definition
| The form of State refers to the rules and principles that govern a State Legal System |
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Term
| Define the notion of form of Government |
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Definition
| The From of Government referes to the rules concerning the distribution of power between the State's Institutions |
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Term
| What is a diachronic method? |
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Definition
| Study of changes over time in a phenomena |
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Term
| What are the main type of states using the diachronic method? |
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Definition
Feudal System: Local lords had total control over land, serving the king’s desires and defending his possessions.
Absolute State: Power shifted from feudal lords to a single ruler over larger territories; economy moved from land to money, and some "Enlightened Absolutism" granted basic rights without public input.
Liberal State: Emerged post-Industrial Revolution, prioritizing minimal state intervention and individual rights but limited voting rights to the wealthy.
Democratic Pluralistic State: Evolved from the Liberal State
to include mass parties, diverse representation, and recognition of 1st and 2nd generation rights.
Totalitarian and Authoritarian States: Both suppress individual rights; totalitarianism enforces an ideology, while authoritarianism centers on the leader’s power.
Socialist State: Originated in Proletarian Dictatorship, aiming to eliminate classes, abolish private property, and establish a planned economy under a strong central party. |
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Term
| Define the synchronic method |
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Definition
| Forms of State classified by their territorial organization. In other words based on the allocation of powers between the State and the sub-State entities (regions etc.). |
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Term
| What are the main type of states using the synchronic method? |
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Definition
Unitary State -> a form of State where the legislative power is only exercised by the central government.
Decentralized State -> the legislative power is exercised by the government and the sub-State entities.
-Federal States
-Regionalized unitary States |
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Term
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Definition
| Federalism, rooted in the Latin foedus ("pact"), promotes collaboration across political entities with separated powers (legislative, executive, judicial) and territorial divisions to prevent power abuses. Modern federalism includes horizontal and vertical power divisions, enabling multi-level governance and social pluralism. |
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Term
| Define the federalist ways |
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Definition
-Confederation of States -> No Constitution, treaty/pact between multiple states with the right to withdraw at every time and the sovereignty belongs to the single nations.
-Supranational organisation of States -> EU, common Constitution and a form of coexistence of both sovereignties
-Federal State -> the USA |
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Term
| The two types of allocation of power in a Federal State are...? |
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Definition
Layer cake -> There is a clear distinction between the power of the Federal State and the Member States, the aim is to keep the Member States autonomy. Characterized by more competition
Marble cake -> Characterized by more collaboration between the two and the aim is the Welfare |
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Term
| How ca we distinguish between Federal and Regional States? |
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Definition
- Allocation of legislative power
-Allocation of judicial power
-Representation in the upper house
-Constitutional amendment powers |
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Term
| Talk me through the sub-state Constitutions |
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Definition
| Some commentators argue that if a sub-state entity has its own Constitution than the form of State is Federal but it's not always the case. |
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Term
| Federalising processes are? |
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Definition
History->
From many to one -> USA, many States formed one but kept their old Constitution
Decentralisation of power -> If Unitary States decides to divide it's power |
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Term
| How are the differences between Regional and Federal States? |
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Definition
| Quantitative rather than qualitative, because the aim is always the same = overcome dualism and conflicts between the central power and local autonomies recognition |
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Term
| Define the notion of Form of State |
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Definition
| The form of State refers to the rules and principles that govern a State Legal System |
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Term
| Define the notion of form of Government |
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Definition
| The From of Government referes to the rules concerning the distribution of power between the State's Institutions |
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Term
| What is a diachronic method? |
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Definition
| Study of changes over time in a phenomena |
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Term
| What are the main type of states using the diachronic method? |
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Definition
Feudal System: Local lords had total control over land, serving the king’s desires and defending his possessions.
Absolute State: Power shifted from feudal lords to a single ruler over larger territories; economy moved from land to money, and some "Enlightened Absolutism" granted basic rights without public input.
Liberal State: Emerged post-Industrial Revolution, prioritizing minimal state intervention and individual rights but limited voting rights to the wealthy.
Democratic Pluralistic State: Evolved from the Liberal State
to include mass parties, diverse representation, and recognition of 1st and 2nd generation rights.
Totalitarian and Authoritarian States: Both suppress individual rights; totalitarianism enforces an ideology, while authoritarianism centers on the leader’s power.
Socialist State: Originated in Proletarian Dictatorship, aiming to eliminate classes, abolish private property, and establish a planned economy under a strong central party. |
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Term
| Define the synchronic method |
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Definition
| Forms of State classified by their territorial organization. In other words based on the allocation of powers between the State and the sub-State entities (regions etc.). |
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Term
| What are the main type of states using the synchronic method? |
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Definition
Unitary State -> a form of State where the legislative power is only exercised by the central government.
Decentralized State -> the legislative power is exercised by the government and the sub-State entities.
-Federal States
-Regionalized unitary States |
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Term
|
Definition
| Federalism, rooted in the Latin foedus ("pact"), promotes collaboration across political entities with separated powers (legislative, executive, judicial) and territorial divisions to prevent power abuses. Modern federalism includes horizontal and vertical power divisions, enabling multi-level governance and social pluralism. |
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Term
| Define the federalist ways |
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Definition
-Confederation of States -> No Constitution, treaty/pact between multiple states with the right to withdraw at every time and the sovereignty belongs to the single nations.
-Supranational organisation of States -> EU, common Constitution and a form of coexistence of both sovereignties
-Federal State -> the USA |
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Term
| The two types of allocation of power in a Federal State are...? |
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Definition
Layer cake -> There is a clear distinction between the power of the Federal State and the Member States, the aim is to keep the Member States autonomy. Characterized by more competition
Marble cake -> Characterized by more collaboration between the two and the aim is the Welfare |
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Term
| How ca we distinguish between Federal and Regional States? |
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Definition
- Allocation of legislative power
-Allocation of judicial power
-Representation in the upper house
-Constitutional amendment powers |
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Term
| Talk me through the sub-state Constitutions |
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Definition
| Some commentators argue that if a sub-state entity has its own Constitution than the form of State is Federal but it's not always the case. |
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Term
| Federalising processes are? |
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Definition
History->
From many to one -> USA, many States formed one but kept their old Constitution
Decentralisation of power -> If Unitary States decides to divide it's power |
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Term
| How are the differences between Regional and Federal States? |
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Definition
| Quantitative rather than qualitative, because the aim is always the same = overcome dualism and conflicts between the central power and local autonomies recognition |
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Term
| What is a dispositional property? |
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Definition
| Is a inherent quality, a nuance of a behavior that comes out only on certain occasions. |
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Term
| What are the dispositional properties of the forms of government? |
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Definition
-Whether there are both head of State and head of Government or they are the same institutions
-If the incumbents of those institutions are popularly elected
-Whether or not the incumbents serve for a fixed term |
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Term
| Forms of government are classified by....? |
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Definition
-Relation of confidence
-Presence of head of State and head of Government
-Popular election
-Fixed term
+Power of dissolution |
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Term
| Define Parliamentary Executive |
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Definition
-Parliamentary executive
1. There is confidence (Executive-Parliament)
2. Both head of State and Government
3. Neither of which are popularly elected
4. Government has no fixed term, if it's good than it last the whole legislature
5. Dissolution belongs to the head of State |
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Term
| Define Presidential Executive |
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Definition
-No confidence between President and Congress
-Head of State and Government are the same persone
-President is popularly elected
-Fixed term of usually 4 years
-No dissolution power, only impeachment |
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Term
| Define Directorial Executive |
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Definition
Only in Switzerland
-Council that is both head of State and Government
-No relation of confidence
-No direct election, elected by the Parliament
-Head council fixed term of 1 year
-Council fixed term of 4 years |
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Term
| Define Semi-Presidential Executive |
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Definition
-Presence of both head of State and Government
-President has executive power -> bicephalous
-Popularly election of President
-Head of Government assigned by President (with National Assembly approval)
-Cohabitation
-Dissolution of National Assembly by President (not in the first year) |
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Term
| Two types of Semi-Presidential |
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Definition
-Prime Minister prevails
-Clear separation of powers between the two
-Bulgary |
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Term
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Definition
| They failed, they should get bullied. |
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Term
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Definition
| General and abstract to ensure applicability to every situation. A legal rule may prescribe a conduct or reinforce it |
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Term
| Legal rules must be endowed with... |
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Definition
Force = ability to innovate the positive legal system
Effectiveness = ability to impose binding rules |
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Term
| How should we see the system of law? |
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Definition
| In close relation with the forms of State and Government and the development of institutional pluralism |
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Term
| How can sources of law be? |
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Definition
On law
Of law
Of cognizance |
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Term
| Sources ON law production |
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Definition
They indicate the nomen iuris of the law and:
-rules for interpretation
-organise a coherent system
-in Italy is the Constitution |
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Term
| What is the nomen iuris? !remember! who, how and when |
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Definition
| The competent authority, the procedure, and the criteria to deliberate a law |
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Term
| Sources OF law production |
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Definition
| They are the acts and facts that can produce a law, in other terms are rules that can regulate the relationship among the subjects of the law which lead to rights and duties |
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Term
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Definition
Official Gazette of the Italian Republic, Bollettini Officiali delle Regioni, Official Journal of the European Union.
1. A law becomes effective after a designated period, vacatio legis, allowing citizens time to familiarize themselves with it.
2. This process upholds the principle that ignorance of the law is no excuse (ignorantia legis non excusat), and judges must apply the law without proof of its validity (iura novit curia).
3. Only laws published by official sources hold legal force and can be enforced. |
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Term
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Definition
Written and voluntary adopted laws that must satisfy 3 conditions in order to have juridical effect:
1- Existence -> must be identified by the nomen iuris
2- Valid
3- Efficacy -> ability to produce effects |
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Term
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Definition
Are something that we do, traditional customs and practices are linked to facts because they combine 2 elements:
-Subjective -> deriving from the perception that a specific social behaviour is obligatory and considered to be legally binding.
-Objective -> esulting from the behaviour that has remained unchanged over the passage of time. |
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Term
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Definition
-Who can interpret it?
-Attempt to clarify law by making a law
-How do you solve conflicts between laws
-Interpret the choosen law |
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Term
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Definition
| When a law is made and covers the same topics as an old one the newer one repeals the old one |
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Term
| How can a repeal of an old law be? |
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Definition
Expressed -> the "new" law specifies which old one it repeals
Tacit -> when the new law is incompatible with the old one
Implicit -> when the new law covers the whole area of interest of the old one
Or through obsolence |
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Term
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Definition
| When two laws are in contrast with each other and one of them is placed on a higher hierarchical level the latter prevails. |
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Term
| What happens when two laws are in conflict but have different importancy |
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Definition
The lower iportancy one is declared illegitimate and is canceled by the Constitutional Court.
-Annulment -> resolves a contrast between laws of different level
-Repeal -> resolves contrast between laws on the same level |
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Term
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Definition
| Contrast between laws on the same level cannot always be resolved through the criterion of chronology so if one of the laws that are in conflict is more competent in the subject matter of the case than it's the one to prevail. |
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Term
| How can a contrast of competence be resolved |
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Definition
| By declaring the law that invades the competence of another to be illegitimate (if applied to primary sources than it must be done by the Constitutional Court) |
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Term
| Criterion of specialisation |
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Definition
| When conflict between two laws of same nature but one general and one more specific occurs the most specific one prevails. THE GENERAL LAW REMAINS VALID AND EFFECTIVE |
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Term
| How are structured the Italian sources of law? |
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Definition
In a pyramidal way
Constitution
Community law
Primary sources
Secondary sources
Customary sources |
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Term
| What is the Constitution and which are it's main characteristics |
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Definition
The Constitution is the fundamental law at the top of the pyramid, it represents the State values and principles and is the main source of law production. It's characteristics are:
-Rigid -> amended through special procedure
-Long -> so it covers the most that it can
-Programmatic -> because it sets goals and objectives
-Adaptable -> generic in nature, so can reflect every aspect of each society period of time |
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Term
| Are constitutional amendments possible? |
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Definition
| Yes they are, even though they require special procedures and has some limitations like the one stated in art. 139 -> form of State must remain Republican |
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Term
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Definition
This system is closed because all sources at this level must be established by the Constitution. This sources have force of law. And are the following:
Ordinary State Laws
Acts having force of law
Referendum
Parliamentary standing orders
Rules of other constitutional bodies |
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Term
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Definition
| The capability to repeal and amend same level laws, previous laws and inferior laws |
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Term
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Definition
Laws subordinated to the Constitution, they are issued by the Parliament but the initiative belongs to either:
1. The Government
2. To each senator or deputy
3. To 4 regional councils
4. To a number of at least 50.000 people |
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Term
| How an Ordinary State law is approved |
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Definition
| It's voted by each chamber and approved by simple majority, if one of the chambers votes against than the other must reapprove it. They are promulgated by the President and must be published on the Gazzetta Ufficiale. |
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Term
| Constitutional statutory limits |
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Definition
Absolute -> law regulate a topic, primary sources regulate its subject matters
Relative -> law establishes the principles, secondary sources do the rest
Simple -> Constitution requires the law to regulate a certain subject matter but it does not place any restrictions on the content
Reinforced -> Constitution establishes limits as well |
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Term
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Definition
Legislative decrees -> The Parliament delegates the Council of Ministers to exercise legislative power
Law decrees -> Issued by the Government only in cases of emergency or necessity, they have a 60 day period of validity after which they either convert in ordinary law or lose their effect |
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Term
| What is a limit to Legislative Decrees |
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Definition
| The Parliament cannot delegate the Government to adopt acts where the executive branch could control the legislative branch (due to the fundamental division of powers) |
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Term
| The Abrogative Referendum |
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Definition
| Made to repeal an ordinary State law or an act having force of law. It can be requested by 500000 electors or 5 regional councils. The Constitutional Court must verify the legitimacy of the request, if passed the referendum requires the quorum of half the electors to be valid. If the law is repealed it loses validity the day after the declaration |
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Term
| Parliamentary standing orders |
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Definition
| Are adopted by each chamber of the Parliament and regulate the internal organization of the Parliament itself. It is not subject to external scrutiny because it's direct representation of each chamber independency. |
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Term
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Definition
| They are not a closed system and can be integrated by the legislative power. They consist of regulations issued by different institutions. The one of particular importance are Government regulations |
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Term
| What is a Government Regulation |
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Definition
Is a regulation proposed by a Minister and eventually approved by the Government's collegial body. They can be:
1. Executive regulations
2.Integrative regulations
3.Delegated regulations
4.Organisational regulations |
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Term
| Regional and local sources of law |
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Definition
They are primary sources as well and are:
1- Special Regions statutes
2- Ordinary regional statutes
3- Regional laws
4- Regional regulations
5- Provinces and Municipalities Statutes |
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Term
| How do we decide which law to adopt Regional or National |
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Definition
Through the criterion of competence.
-If the competence is concurrent then the hierarchical criterion is applied and National law is applied
-The interpretation must take into consideration the principles of loyal collaboration and subsidiarity |
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Term
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Definition
| They concern the 5 Italians regions with special autonomy (Sicilia, Sardegna, Valle d'Aosta, Friuli, Trentino) and specifies each region organization, its functions and competences |
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Term
| Ordinary regional statutes |
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Definition
| Concerns the organization of the other 15 regions |
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Term
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Definition
| primary sourcers of law subordinate to the Constitution and equal to Ordinary law |
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Term
|
Definition
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Term
| Provinces and Municipalities Statutes |
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Definition
| They set up the organization and competences of small cities or territories |
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