- Enforcement of Legal Rules

Enforcement and Coercion:

Coercibility – Coercion: The use of express or implied threats of violence or reprisal or other
intimidating behavior that puts a person in immediate fear of the consequences in order to
compel that person to act against His/Her will.

Law shall be enforced first-best hopefully in harmony with the will of individuals if
necessary, against the will of individuals.

Negative Traditional
sanctions punishment

Premial
rewards
sanctions
Warranty
The Is interim,
procedure in urgent, relief
court available?
The intensity
Are
of the
injunctions
judge’s
available?
powers

There are 2 types of sanctions (Negatice and Positive):

a) Punishment: impose a negative sanction on the perpetrator

b) Resort to awards/rewards – what we call premial sanctions

b) Premial Sanctions
- In favour:
o Acknowledgement that illegal behavior is frequent
o Awards are powerful incentives for compliance
- Against
o Compliance with rules is mandatory, such cooperation is expected of
persons, it does not merit applause.
a) Types of Negative Sanctions
- Disciplinary: reprimand (firing) - Employer
- Civil: damages: Does not imply loss of physical freedom - Court
- Administrative: Monetary sanction (ex. Coima), impediment to perform a given activity
– Public Administration
- Criminal: fine (multa), prison, death – Imposed by court

Objectives of Sanctions:
1) Compulsory
2) Reconstitutive
3) Compensatory
4) Preventive
5) Punitive

Compulsory Sanctions: Designed to force the culprit, to adopt, albeit late, the behavior
requested of her/him

Reconstitutive Sanctions: Designed to reinstate situation prior to breach

Compensatory: Do not re-instate reality but provide compensation (money) to victim

Preventive: The punishment ensues breach but its objective is to prevent further

Punitive: The concept behind this is retribution

Forms of Self- enforcement of the law:

I. Self defense
II. Imperious necessity
III. Direct Action
IV. Right of Resistance
Nudge and Conformity

Nudge: aspect of the choice architecture that alters people’s behavior in a predictable way
without forbidding any options or significantly changing their economic incentives. To count
as a mere nudge, the intervention must be easy and cheap to avoid. Nudges are not
mandates. Putting fruit at eye level counts as a nudge. Banning junk food does not.

Conformity: The actions and statements of other people provide information about what is
true and what is right. The actions and statements of other people will tell you what you
ought to do and say if you want to remain in their good graces. Then, unless your
imagination and experiences lead you un fresh directions, you will think and act like your
neighbors do.

- Approach Nudge without forgetting: There is a risk that it might lead persons
without a robust sense of independence to Conformity.

The 5 Step Analysis:

1) Clarification
2) Exploiting the idea of Choice Architecture
3) Navigability as an objective (unto itself)
4) Defining Sludge (noise)
5) A bill of Rights for Nudging.

Countries worry about this problems, but they cannot forbid them and they cannot use
money (that changes incentives):
- Obesity: Calories counters, the position of the brownies
- Poverty: opt-in rule for credit card overdraft
- Environment:
- Cigarettes: Photographs + “ Only 1 in 8 smokes”
- Highway accidents, traffic
- Violence

- Results

EAST: Easy Attractive Social Timely

- Default rules
- Simplification
- Information
- Reminders
- Social Norms

(…)
Bill of Rights for Nudging
1. Must be for legitimate ends
2. Must not violate individual rights
3. Must be consistent with people’s values and interests.
4. Transparent
5. Ought not to take things from people without their consent
6. Should not manipulate people
7. The benefits must justify the costs.

Counter measure: Literacy Boosts.

Success: Plate no pyramid, Calories.

State Building in a Constitution (the politics of our own judiciary)

Mapping out Institutional Design
The examination of Institution design should be your first approach to any “constitutional
document” or “international Treaty”. Only then we are able to understand: 1) What kind of
Government has been set up, 2) How is supposed to functional.
Revisions of Constitution
The Constitutional Text, drafted in 2976, has undergone multiple ammendments, so-called
revisions in:

- 1982
- 1989
- 1992
- 1997
- 2001
- 2004
- 2005

The person in CRP

- Preamble
- Fundamental Principles
- Part I: Fundamental Rights and Duties
o Tit I: General Principles
o Tit II: Rights Freedoms and guarantees
o Tit III: Economic Social + Cultural Rights and duties
- Part II: Organization of the Economy
o TIT I: General Principles
o TIT II: Plans
o TIT III: Agricultural, commercial and Industrial policies
o TIT IV: Financial and Fiscal System
 - Part III: The Organization of PP
o Tit I: General Principles
o Tit II: President of the Republic
o Tit III: Parliament
o Tit IV: Government
o Tit V: Courts

President of The Republic:

- Ch 1 – Status
o Art. 122: at least age 35
o Art. 127: the Parliament swears / him-her in
o Art. 128: 5 years
o Art. 129: Absence and consent
o Art. 130: Criminal Liability
o Art. 131: Acting President (President of Parliament)

- Ch 2 – Responsabilities
o Art. 120 – ex. Officio
o Art. 133 – in relation to Government: see options g) as an alternative to g)
o Art. 134 – Personal see option g) + h)
o Art. 136 – enactment and veto
- Ch 3 – The Council of State
o Art. 141
o Art. 142 – composition

Composition of the Council of State

Article 141: The Council of State is the political counselling body of the President of the
Republic.

Article 142: The Council of State is chaired by the President of the Republic and its members
are:
- The Speaker of Parliament;
- The Prime Minister
- The President of the Constitutional Court;
- The ombudsman;
- The presidents of the regional governments;
- The former presidents of the Republic elected within the period the Constitution has
been in force and who have not been discharged from office;
- Five citizens appointed by the President of the Republic for the period
corresponding to his mandate
- Five citizens elected by Parliament, in according with the principle of proportional
representation, for the period corresponding to the parliamentary term.
Article 144: (organization and operation)
- The Council of State shall establish its own rules procedure.
- The meetings of the Council of State are not open to the public

Article 145: (Remit)

- Provide an opinion on the discussion of Parliament or of the legislative Assemblies of
the autonomous regions;
- Provide an opinion on the dismissal of the Government, in the case foreseen under
No. 2 of article 195
- Provide an opinion on declaration of war and making peace
- Provide an opinion on the acts of the interim President Of the Republic referred
under article 139
- Provide an opinion upon the remaining cases foreseen in the Constitution and, in
general, counsel the President of the Republic in the exercise of his duties, when so
requested.

(…) Parliament, Government, Courts

Composition of the Constitutional Court

The Constitutional Court is a special court, defined by the Portuguese Constitution as

part of the judicial branch of the Portuguese political organization.
Unlike the rest of the Country’s courts, the constitutional court has important
characteristics, such as a special composition and unique competences. The main task of the
court is to review the constitutionality of the newly approved laws, but it also has important
powers related to the President of the Republic, the political parties and referenda.
Portuguese Constitution defines the Constitutional Court as a completely
independent organ, that operates independently from the other branches of government,
such as the Executive or the Legislative.
The judges of the Constitutional Court are independent and cannot be impeached.
The decisions of the court are above the decisions of any other authority.

The Court is composed by thirteen judges, ten of them are elected by the Parliament and
they must be elected by two thirds majority of the members:
- 10 elected by Parliament
- Three are elected by the already elected judges

Of the 13 judges, six must be chosen among the general (regular) court’s judges, the
remaining must have at least a degree in law. The judges serve a 9 years mandate and
cannot be re-elected.

Constitutional Court elects its own president and vice-president and approves its own rules,
schedule and budget.
The president of the Constitutional Court is the fourth person in the Portuguese State
hierarchy.
Concept of Judicial Independence:

“The concept of independence presupposes, in particular, that the body concerned

exercises its judicial functions wholly autonomously, without being subject to any
hierarchical constraint or subordinated to any other body and without taking orders or
instructions from any source whatsoever, and that it is thus protected against external
interventions or pressure liable to impair the independent judgment of its members and to
influence their decisions”

Law and Morality

Morality Law
Acts that are Acts that are legally
Immoral but not wrong but not
necessarily necessary imoral
unlawful
Ex: Parking but not
Ex: Adultery paying

The greater the intersection the more likely the law is to be accepted/respected by member
of society.

Law vs. Morality

Conflict between Law and Moral code of some individuals:

- A pacifist required to serve in the military, may be compelled to become a
conscientious objector and face imprisonment as a consequence of his (own)
violation of the law.
- Journalist that claims a right not to disclose sources. This does not assist them when
they are required to give information in court, as witnesses
Law conflicts with majority’s moral values
- Apartheid in South Africa law used to pursue immoral aims, as the creation of a
white minority, all law disenfranchises and discriminates vs. a non-white majority

Case where: Sound Conscience and sense of justice of all decent human beings.

8 Principles:

1) Generality: Fails to make rules at all, deciding questions ad hoc

2) Promulgation: Fails to publicize rules
3) Non retroactivity: Enacts rules for the past
4) Clarity: Difficult to understand
5) Non-Contradiction: Require conduct beyond the powers of the affected party
6) Possibility of compliance: Require conduct beyond the powers of the affected party
7) Constancy: Changes so frequent, subject cannot adjust
8) Congruence between declared rule and official action: No correspondence between rule
announced and their actual administration