Legal Framework and Key Concepts

Legal Framework Overview

• Law is a system of regulations governing legal entities and individuals
• Objective law encompasses all legal norms in a society and governs authority
• Subjective rights are privileges granted to individuals recognized by legal norms
• Diritto' in Italian, French, and Spanish refers to both the legal system and individual rights

Key Legal Concepts

• Acts are statutes from legislative authorities distinct from broader legal actions
• Legal Personhood defines capacity to hold rights/obligations
  • Natural persons acquire it at birth and retain until death
  • Juridical persons include corporations and public institutions
• Legal Capacity is the ability to exercise rights and assume duties; full capacity reached at 18 in Italy
  • Minors and mentally impaired individuals may lack legal capacity and require guardianship
• Loss of Legal Capacity can occur due to illness or mental incompetence, necessitating a guardian
• Legal Facts are natural occurrences with legal consequences like birth or death
• Legal Acts are human actions with legal implications
  • Acts of Commission involve actions like contracts or crimes
  • Acts of Omission involve failures to provide legally required assistance
  • Acts are either Intentional or Negligent depending on the actor's intent
• Legal Good are the objects of legal rights/duties, either Material or Immaterial

Essential Legal Rule Attributes

• Legal rules apply to an indefinite number of subjects and situations
• Formal legal rules adhere to form requisites and adoption procedures
• Positive legal rules express “political” decisions of community interests at a given time
• Legitimate legal rules must be adopted by the competent authority and be consistent
• Forcible-Effective legal rules must have capacity to produce legal effects and be enforceable
• Prescriptive legal rules must prescribe behaviour and reconnect consequences for failure

Sources of Law

• Sources of law determine how legal norms are created, modified, and applied
• Formal sources define how laws are created and enforced
• Material sources influence the content of laws through social, economic, and historical factors
• Acts are explicit expressions of political will from legislative and regulatory bodies
• These include constitutions, statutes, regulations, international treaties, and EU laws
• Facts are customary behaviours and agreements gaining legal significance
• Customs and conventions are included
• Sources of Law define competent authority, procedure, criteria and limits of another source of law
• Sources of Law may modify or repeal legal rules

Legal Source Hierarchy

• Legal sources are hierarchically arranged to resolve conflicts in law
• Constitutional law holds the highest authority
• Primary legislation includes statutes from parliament
• Secondary legislation encompasses regulations, decrees, and administrative rules
• Tertiary sources involve customary law and legal precedents like in Common Law

Interpreting Legal Norms

• Legal interpretation determines the precise meaning of legal texts
• Authentic interpretation is conducted by the norm-creating authority
• Literal interpretation uses the plain text meaning
• Systematic interpretation considers the broader legal system
• Historical interpretation examines the original legislative intent
• Constitutional interpretation is most consistent with constitutional principles

Resolving Legal Conflicts

• Analogia Legis applies similar statutory provisions
• Analogia Juris relies on general legal principles
• The Criterion of Chronology indicates newer laws override conflicting older laws
• The Criterion of Hierarchy indicates higher norms prevail over lower ones
• The Criterion of Specialization indicates specific laws take precedence over general ones
• The Criterion of Attribution indicates laws are valid within their designated jurisdiction

Retroactivity of Laws

• Retroactive laws apply to past actions
• New provisions that repeal old ones, apply to facts before the repeal
• An invalidating legal disposition is ineffective since its starting date
• Laws generally lack retroactive effects, especially in criminal law
• Statutes establishing new crimes cannot have retroactive effects
• Statutes abolishing existing crimes have retroactive effects

The Constitution

• A constitution is a source of law that defines government structure, law sources, and rights
• Rigid constitutions require special amendment procedures
• Flexible constitutions can be altered by ordinary legislation
• Codified constitutions have a single written source
• Uncodified constitutions use multiple sources
• Voted constitutions are adopted democratically
• Octroyée constitutions are granted by rulers
• The Constitution can be interpreted in diverse ways
  • Original interpretation is based on the intent of framers
  • Material Constitution looks at the constitution applied in practice
  • Living constitutions evolve through judicial interpretations
  • Sham constitutions exist formally but are not enforced
• Modern constitutions include fundamental principles, government organization, law sources, and a bill of rights

Domestic and Non-Domestic Law

• International law sources include customs and treaties
• Customs are general repeated behaviours, accepted as legally binding
• Treaties are agreements concluded by states, and legally binding
• Acts of the International Organizations are per the treaties
• General legal principles are usually recognized by civilized nations
• Monism maintains immediate effects and Constitutional consistency with international law
• Dualism incorporates international law via legislative acts
• EU law sources exist at the constitution level
• Treaties on European Union with Functioning on European Union, and Fundamental Rights have the same level
• Regulations are given by competence and include, Regulations, directives, decisions, and opinions
• EU Law prevails, although the ECJ has limited jurisdiction
• The ECHR was adopted by the Council of Europe
• International law has the same force. ECHR makes states observe law and grants individuals the right of petition

Contemporary Legal Systems

• Civil law prevalent in Europe, Latin America, and parts of Asia and Africa, emphasizes codified law
• Common law used in the UK, US, and former British colonies, relies on precedent
• Islamic law combines religious precepts from the Quran and Sunna
• Chinese law utilizes a civil law framework
• Customary law values long-standing traditions in places and also formal laws

Rights and Duties

• Rights and duties entitlements and obligations of individuals, groups, and institutions

Rights Explained

• A right is a legally recognized power or privilege granted to a person
• Rights may exist against the State, individuals, or legal entities
• Liberty rights require the State to abstain from interference
• Political rights allow engagement in political activities
• Social rights require provision of services by the State
• Absolute rights are enforceable against all persons
• Relative rights apply between specific parties only
• Rights can be exercised by individuals, groups, or communities
• Rights relate to personal or economic interests
• Rights can be recognized in international law or treaties, national constitutions, law, or contracts
• Fundamental rights are constitutionally protected, and ordinary rights can be modified

Protecting Rights

• Judicial protection involves courts upholding rights
• Public administration ensures respect for rights
• International mechanisms provide additional safeguards
• Rights enforced through public authorities and private application/lawsuits

Duties Explained

• A duty is a legal obligation imposed on individuals, groups, or institutions
• They may be based on solidarity, politics, or economics and can be personal or state-related
• Sources can be: International under treaties, European under law, Constitutional and ordinary law, customary

Enforcing Duties

• Enforced through judicial protection like courts
• Public administration and fines
• Also through public authorities and private lawsuits

Responsibilities Explained

Responsibilities are combinations of rights and duties

• These grant authority and obligation

Defining a State

• The State is a political entity with territory, population, and sovereignty
• There is secured governance, mutual security, and pursuit of common interests

Territory Defined

• Includes land with dry areas, rivers, lakes, and subsoils
• Territorial waters extend 12 nautical miles from the coastline
• Contiguous zone spans 24 nautical miles for customs, taxes, health, and immigration
• Continental shelf reaches 200 miles for offshore exploitation
• Airspace extends approximately 70 km
• Vessels and aircraft retain jurisdiction internationally

People and Sovereignty

• The population consists of residents, while citizenship determines legal membership
• Citizenship can be acquired via birthplace, parental heritage, or naturalization
• Citizenship can be lost if being in a foreign military, renunciation, or and conviction of serious crimes
• Sovereignty is supreme authority through independent external and internal power

Government and Citizens

• Forms of state define government-citizen relationships

Autocratic States Explained

• Power is concentrated in a single authority with limited participation

Absolutism Explained

• Power is held by monarch with no checks and balances that exists, is based above the law, has no individuals with rights, but the military is present. And a market promotes state control. And coexistence is promoted

Enlightened Absolutism Explained

• Absolutism has implemented limited codification

Authoritarianism Explained

Limited freedoms and monopolies are key

Democratic States Explained

• Governments are accountable to the people
• Liberal democracy protects rights and has both rule of law and also equality under the law
• Social equity can be guaranteed too though public policy

Other States

• Hybrid states and electoral dictatorships exist
• Theocracies are governments ruled by religion
• Unitary States are governments with administrative divisions

Regional and Federal States

• Regional States remain government and judiciary in power
• The EU has national competencies

Multi Level States

• Lacks statehood but has influence internationally and through member nations

Governmental Forms

Absolute Monarchies Explained

• Supreme power rests unchecked with the monarch

Constitutional Monarchies Explained

• Monarch is symbolic head of state only

Presidentialism Explained

President is both chief with separate balance between power and duties

Parliamentarism Explained

• The Prime Minister is accountable to the legislature and serves as the chief
• The power is checked

The Chancellor System Explained

This offers authority and elections power-base

Semi Presidentialism Explained

Head power and a parliament

Socialist Republics Explained

Power lies in the party and parliament

Public Administrative Bureaucracy

• Bureaucracies administer agencies and officials in liberal governments

Napoleonic and Weberian Napoleonic

Concentrated administration and rational hierarchy in ministries is present

Welfare Distribution

• Distributed power through ministries and a flexible structure

A Managerial Model

Diffuse power that prioritizes autonomy and separates decision-making

Establishing Guarantees of Democracy

• Governed generally structure its sources around the systems

Judiciary Powers

Courts interpret and apply the rule of law

• Are based on 2 systems of either unique or multiple courts to ensure order
• Are then classified on levels of which they are judged to ensure a quality hearing
• Finally this is assessed by merit-based public election

Independent Agencies

• Judicial independence is maintained for fairness and by superiors council, and guarantees

Criminal Justice

Prosecutors act through elections and selection, while the judiciary must be impartial

Justice

Law that is checked to align with constitutions has an authority to do so Is based on 3 bodies of whether it is legal, a board, and an impartial goal