4.

SOURCES OF LAW; INTERPRETATION

Sources of law = secondary rules which govern the possible change of the primary ones

SOURCES OF ITALIAN LAW

 Sources of production = acts/ facts that can produce a legal rule
1. Acts , voluntarily adopted laws that are existing, valid and efficient
2. Facts ,traditional customs and practices, objective= stability over time and
subjective= deriving from the perception that a given behavior is considered to
be leggaly binding
3. Costituzione 1948
4. Statutes ( leggi, decreti legge, decreti legislativi)
5. Regional laws
6. Regulations
7. Uses
 Sources of cognition give legal notice about the sources of production
( ex : Official Journal, gazzetta ufficiale della repubblica italiana )

SOURCES OF EU LAW
 Primary sources
1. Founding treaties
objective= creating a european area of free trade with no internal frontiers
 Secondary sources
2. Non binding acts ( recommendations and opinion )
3. Binding acts ( regulations, directives and decisions )

Regulations = directly applicable to all the member states binding them entirely,
prevailing over constrasting norms of domestic law, not only pre-existing but
also future
Directives = addressed to all the member states, binding as to be the result to be
achieved. Leave to national authorithies the choice of form and method.
Directives introduce principles and a deadline.

RELATIONSHIP BETWEEN NATIONAL AND EU SOURCES OF LAW

European union and Italy are considered two distinct and autonomous legal orders each of
which has it own system of legal sources.
Today it is a shared principle that EU law is always to be preferred regardless of wheter it was
approved before or after the conflicting national law.
When Italy signed the First Treaty, it transferred competence to the Erupean Community with
regard to certain subject matters and policy areas and, as a consequence, accepted that
community law would tae precedence over Italian law.
Inconsistencies in primary provision of law, termed ‘antinomies’ ,ay be solved by secondary
provision authorizing judges to apply just one of the collifing primary provisions, criteria given
by law:
- Hierarchical criterion : : if a provision of law, which is surbordinated in the hierarchical
order of a legal system, collides with another, which is superorderdinate, the latter
prevails upon the former  it is the primary criterion. If you are at the same step of the
pyramid, then you use the other two
- Content-based criterion: if a provision, which has a broader scope, clashes with
another, which has a narrower scope, the latter prevails upon the former
- Time-base criterion: if a provision which has been enacted sooner, clashes with
another, which has been enacted later, the latter prevails upon the former

EU we apply the hierarchical criteria, those law goes just under the Constitution (before State
law)

INTERPRETATION
A legal system is both complete and consistent
Complete -> in the sense that no gaps are to be encountered in its primary rule, since they
provide for any relevant case
Consistent -> in the sense that no contradictions are to be encountered in its primary rules

Sometimes it is necessary to decide about the proper scope of application:

- The literal rule (or Grammatical interpretation): the interpretation matches the literal
meaning of the words in the rule;
- The legislative intent (or Historical interpretation): the interpreter reverts to the
intention of the legislator who formulated the rule it guides the formulation of the
third one;
- Teleological interpretation (so-called Golden rule): the interpreter tries to determine
the purpose of the rule himself
They complement each other, it is not a hierarchy

FILLING LEGAL GAPS

Gaps in primary norms may be filled in by secondary rules authorizing judges either to create
new law or to extend the scope of law which alreadsy exists:
- Anglo-American jurisdictions adopted: Gaps in law are filled at judges’ discretion (Hart) -
No gaps in law really exist, “implicit” law, i.e. principles (Dworkin)  Civil law
jurisdictions adopted normative mechanisms to extend laws which already exist to
unregulated cases (analogy)
ANALOGY
Italian law provides for two levels of analogy, which are set in a hierarchical order:
- Pursuant toart.12 prel.disp.toc.c.,

• if no settled law necessitates a case, then it is to be adjudicated in accordance with

provisions pertaining to similar cases or to akin branches of law(analogia legis)
 If this mechanism fails to fill in the relevant gap, particularly because no ‘dispositions
pertaining to similar cases or to akin branches of law’ are given: if there is still any
doubt, the case shall be decided according to the general principles of the
State(analogia iuris)
Pursuant to art. 14 prel. disp. to c.c., furthermore, (criminal law and) exceptional norms are not
to be applied analogically.
As a matter of fact, the exceptionality of a norm is that it provides for cases which are not
similar to any other, so that it does not match the very basic requirement of analogy. In many
jurisdictions such a norm does not exist.
Main problem: determine in which cases a norm can be considered exceptional

CASE STUDY
ENGLARO CASE
- Eluana’s father claimed that, prior to the accident, she had visited a friend of hers laying in a
coma and told him that, if the same occurred to her, her will was not to kept artificially alive.
There are clashes among articles:
Art.2 Duty to solidarity
Art.13 Personal liberty is inviolable
Art. 32 The Republic safeguards health as a fundamental right of the individual and as a
collective interest
Corte di Cassazione, I section16october2007,n°21748: The court may authorize the legal
guardian to interrupt medical treatments (hydration and artificial feeding) that keep an
incapacitated person lying in a persistent vegetative state artificially alive, provided that: a) the
condition of the vegetative state is ascertained as irreversible, according to recognized scientific
parameters, b) the application reflects the patient's will, drawn from his/her previous
statements or by her/his personality, by her/his lifestyle or her/his beliefs.
On 2 February 2009 Eluana was moved to a private nursing home in Udine, Friuli, and feeding
was discontinued (this was possible because they just had to remove a tube which caused her
death, so they were not killing her directly).