Recap on what norms are
DIFFERENT TYPES OF NORMS
1) SOCIAL NORMS (OPTIONAL) spontaneous observance,
believed to be right
2) JURIDICAL NORMS (MANDATORY) issued by the state,
observed even if believed to be wrong, written
CHARACTERISTICS OF JURIDICAL NORM:
- mandatory for everyone, both citizens and the authorities
that issued the Norm. Important difference with the past
- general: applied in the same way to all subjects in the same
position
- exterior no interest for feeling or emotions (social norms are
interior!!!)
- bilateral: relationships between subjects right of one person
corresponds to duty/obligation for another
- positive ius positum enforced by legitimate organs
- imperative the state can impose and punish
- abstract always describing hypothetical behaviour =
“fattispecie” and a sure consequence for the future
SANCTIONS:
We have talked about various examples of juridical norms. We
know that if we go on a bus we need to have a ticket, but some
people take the bus anyway.
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They are violating a juridical Norm.
If norms are mandatory what happens if we don’t respect them?
To make sure that a norm is respected the juridical system can
establish consequences.
DEF: a SANCTION is the negative consequence established in
case a norm is not respected
Sanctions have various functions
- PREVENTIVE: you follow the norm to avoid consequences
- RESTORATIVE as a remedy to the violation
- PUNITIVE: it punishes the person who violated the law (typical
of the criminal law)
example of the duty of the cell phone vendor to sell me a
perfectly functioning phone and will have to substitute it if the
phone does not work: RESTORATIVE FUNCTION
If I use a bus without a ticket and the policeman gives me a fine, I
will have to pay much more than the normal price of the ticket
(PUNITIVE FUNCTION).
So if I want to avoid the punishment I will have to abide to the
rules (PREVENTIVE FUNCTION)
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[Link] (sources of
law)
1) SOURCES OF LAW
Where do Norms come from?
The ORIGIN of a Norm is called SOURCE OF LAW
DEF: - ORIGIN FROM WHICH REGULATIONS AND NORMS
COME FROM AND DERIVE THEIR BINDING FORCE
- ACTS AND FACTS THAT CREATE, MODIFY AND ABOLISH
JURIDICAL NORMS
(where norms or obligations come from is an important aspect for
the validity of a norm and for it’s imperativeness:
Says who? Show me! These are typical answers when s.o. imposes
[Link] or tells you to do/not do something.
E.g: A sibling tells you to do something (clean your room!). Answer:
No; Why; Says who?
Sibling’s possible answers:
a) I say so!
b) Mom and Dad say so!
c) M+D say so and left a note with instructions
What do you follow? Why?
Which pushes you more? Your brother’s will? Your parent’s
opinion? Your parent’s note?
The reason you will comply with your parent’s note is that the
order comes from the source that has authority to give the order
(competent source of law) and that it is written (certainty of the
law)
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2 TYPES OF SOURCES:
1) PRODUCTION SOURCES: acts and facts that produce juridical
norms
2) COGNIZANCE SOURCES official documents and publications
that COLLECT laws, codes and regulations with the purpose to
make them known to the people
- [Link]
- [Link]
1) PRODUCTION SOURCES
ACTS (DOCUMENTS) and FACTS (behavior) to which the juridical
system recognizes the authority or the capacity to produce
juridical norms.
HIERARCHY among different sources with different importance
and force.
HIERARCHIC PRINCIPLE: a superior norm cannot be changed by
an inferior norm (an inferior source does not have the capacity to
produce a norm that can go against or change a norm produced
by a superior source)
immagine a pyramid: from top to bottom the importance of the
source diminishes hierarchically.
1)CONSTITUTIONAL SOURCES
CONSTITUTION
CONSTITUTIONAL LAWS
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CONSTITUTIONAL REVISION LAWS
2)PRIMARY SOURCES
EUROPEAN UNION
(E.U regulations)
ITALIAN STATE
3)SECONDARY SOURCES
REGULATIONS
(STATE, REGIONS, PROVINCES, MUNICIPAL)
4)CUSTOMARY SOURCES
BEHAVIOR, TRADITIONS
CONSTITUTIONAL SOURCES
A) CONSTITUTION
What is it?
It’s the FUNDAMENTAL law of a Modern State.
It describes its PRINCIPAL CHARACTERISTICS, VALUES, RIGHTS AND
DUTIES of citizens and political organization
PRINCIPLES (BACKBONE) ar ESSENTIAL NORMS to which all must
abide.
B) CONSTITUTIONAL LAWS 138 cost and CONSTITUTIONAL
REVISION LAWS
Constitutional laws integrate the constitution while constitutional
revision laws modify it.
Both laws are approved by the PARLIAMENT with a special
procedure which is longer and more complex than the one
normally used for state laws.
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PRIMARY SOURCES
Primary sources we said were EU laws and Italian State laws.
A) EU LAWS we mean European regulations that are directly
valid in our juridical system and in subjects, or matters,
reserved to them they prevail on other primary law sources.
This explains why E.U laws are also called (reinforced sources)
B) STATE LAWS are
- ORDINARY LAWS (Parliament)
- DECREE LAWS and LEGISLATIVE DECREES (These last two
are called “acts with Law force”) (Government)
and
- REGIONAL LAWS are issued by the single regions and
only in subjects of their own competence
Ordinary laws are issued by the parliament in
accordance to the constitution while decree laws and
legislative decrees are issued by the government under
specific conditions.
As we said before these last ones are called acts with
juridical force. They are called acts with juridical force
because they have the same value and force as a law.
- EU DIrectives (have to be incorporated (integrated) into
our system throug ordinary laws
SECONDARY SOURCES
are regulations adopted by the government or by its ministers (in
which case they would be governmental regulations or ministerial
regulations), but they can also be adopted by the public
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administration and territorial entities. In those cases they will be
regional, provincial or municipal regulations and administrative
regulations.
Regulations clarify and apply laws issued by the Parliament
CUSTOMS AND USES (unwritten sources)
customs and uses can become laws if they follow 2 elements:
there is one MATERIAL ELEMENT and there is a PSYCHOLOGICAL
ELEMENT: the material element is the spontaneous and constant
behavior enacted by the collectivity for a prolonged time.
This behavior is held because the collectivity is convinced that it is
legal and mandatory and this is the psychological element.
It is not enough for the behavior to be repeated by single
individuals nor that it is intended as a free choice. in these cases
behavior is not Custom but simple praxis.
For example: the principle of territorial Sovereignty is unwritten. It is
the principle for which each state exercises its power over the
people and the goods on it’s territory. Unwritten but respected by
all nations.
On the other hand the praxis to exchange christmas gifts is not a
custom because people do not believe it to be mandatory.
Customs are BINDING only if they are (never CONTRA LEGEM)
1) expressly called for by a law or a regulation which means
mentioned by it (SECUNDUM LEGEM) or 2) they regulate or
discipline matters not already disciplined by written laws (PRAETER
LEGEM).
We said that customs and users are not written, they belong to an
oral tradition but it is still true that customs and uses are transcribed
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and collected in provincial collections kept at the Chamber of
Commerce
EXAMPLE: free access to somebody’s uncultivated field to search
for mushrooms
CONFLICTS BETWEEN SOURCES
What happens if there is a conflict between these various sources
of law. What happens if a law is issued by somebody who
shouldn't?
In this case we've seen that the first and most important principle is
the
1) HIERARCHIC PRINCIPLE according to which a less important law
cannot go against a more important law.
A State law cannot go against the constitution and a regulation
cannot go against the State law. So a secondary source of
production cannot produce a law that is issued by a primary
source of production.
But there are two more principles that are applied:
the first one is the principle of COMPETENCE
and the second is a CHRONOLOGICAL principle.
Both these principles are meant to solve conflicts between
hierarchically equivalent sources.
2) The competence principle applies when the constitution
reserves a specific subject, a specific matter to a specific source
of production, which means, for example, citizenship can only be
regulated by state law. State laws are competent in these
matters. So in these cases the law issued by the competent source
prevails on the other one.
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For example: in things regarding nationality, if a regional
regulation makes a law on this subject, it will not be valid because
this subject is ruled by a state laws.
3) The other principle is the CHRONOLOGICAL principle, it applies
when a newer law is issued. Let's imagine a law was issued in 2002
and then, on the same subject, a second law is passed in 2015.
The law passed in 2015 abolishes the one in 2002.
2) COGNIZANCE SOURCES
Sources of cognition consist of means or instruments that are used
to inform citizens of the norms issued by state organs.
Gazzetta ufficiale, Regional official bulletin, codes, “single texts of
laws” collect all laws on a certain subject or sector (T.U.),
VALIDITY OF A NORM
DEF: the capacity of norm to produce juridical effects in time and
space
norm comes into effect —--> is effective—->is abolished
is annulled
Comes into effect: after being
approved it is published by one of
the cognizance sources, e.g. the
Gazzetta Ufficiale. After 15 days
(on the 16th day) (VACATIO LEGIS)
it becomes effective.
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The vacatio is important for people
to know the norm and for the State
to presume the knowledge.
After this period, ignorance of the
norm will not be an excuse
(Ignorantia non excusat)
NON RETROACTIVE unless more
favorable than the former norm. In
that case it will be valid also for
past events (fattispecie)
ABOLISHED/ANNULLED
1) ABOLISHMENT: act where the newer
norm abolishes the older one.
- EXPRESSly stated by the new
norm or
- IMPLICIT: not compatible with the
old norm (without having to
mention it expressly)
2) ANNULMENT by the CONSTITUTIONAL
COURT declaring it’s ILLEGITIMACY
because against the constitution
(for example: ex adoption law: didn’t
permit adoption by people with kids
art 291 c.c.)
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