Public Law Sources of Law 2024-2025 PDF

PUBLIC LAW INTRODUCTION TO PUBLIC LAW SOURCES OF LAW  Preliminary information on the course program and on the assessment method What is public law about? An example of a private law rule An example of a legal rule of public law  Scientific subjects falling within the field of public law The...

PUBLIC LAW INTRODUCTION TO PUBLIC LAW SOURCES OF LAW  Preliminary information on the course program and on the assessment method What is public law about? An example of a private law rule An example of a legal rule of public law  Scientific subjects falling within the field of public law The special importance of the constitutional rules The sources of law The sources of law Enacted legal texts and legal norms Source of law, act and fact The necessary conditions of a regulatory act Existence Validity and effectiveness Common law and civil law Characteristics of common law systems Characteristics of civil law systems Sources on the production of law and production sources of law Sources of knowledge Interpretation The legal syllogism An example: the crime of murder Two clarifications on the object of interpretation and on the structure of the legal norm What is AUTHENTIC INTERPRETATION? Analogy (legis or iuris)  Article 12 of the preliminary provisions to the civil code Techniques of resolution of contrasts between sources of law The Criterion of Chronology The Criterion of Chronology. The types of repeal  The Criterion of Chronology. The principle of non-retroactivity Article 25, paragraph 2, It. Const. The Criterion of Specialization The Criterion of Specialization: an example Is the Criterion of Specialization a technique of resolution of conflicts between sources of law or an interpretative principle? The Criterion of Hierarchy Annulment and repeal  The hierarchy of legal sources SOURCES INTERNATIONAL CUSTOM OF EUROPEAN UNION CONSTITUTIONAL SOURCES INTERNATIONAL TREATIES PRIMARY SOURCES SECONDARY LAW SOURCES The Criterion of Competence  The Criterion of Competence and the role of the Constitutional Court The Criterion of Competence and the pluralist democracy Reservation of law Some examples of absolute and relative reservation of law Some examples of absolute and relative reservation of law Simple or reinforced reservation of law An exemple of reinforced reservation of law Atypical legal sources and reinforced laws Atypical legal sources: an example Some examples of reinforced laws Some examples of reinforced laws Some examples of reinforced laws Constitutional Sources Rigid and flexible constitutions Short and long constitutions The programmatic nature of the Italian Constitution Constitutional Amendment Laws  Explicit and implicit limits to Constitutional Amendment Laws The meaning of the explicit limit contained in Art. no. 139 of the Constitution Implicit limits Article no. 138, It. Const.: «other constitutional acts» Article no. 138 It. Const.: the procedure Article 138 It. Const. The conditions set forth by art. 138 It. Const. Primary Sources The «force of law»  Ordinary State Law Ordinary State law is subordinate to the Constitution and subject to the procedural and substantial limits the latter places on it. Laws that do not respect the provisions of the Constitution can be annuled by the Constitutional Court. ART. 134, IT. CONST.: «The Constitutional Court shall decide: Controversies on the constitutional validity of laws and enactments having the force of law adopted by the State and the Regions; Conflicts arising from appointing powers within the State, appointing powers between the State and the Regions, and the appointing powers between Regions; Allegations made against the President of the Republic, according to the Constitution». Ordinary State Law: Procedure  The Adoption of Laws in the Italian Costitution  Legislative Initiative According to Art. 71, Par. 1, It. Const., «The law making process is initiated by the Government, by each member of the Chambers and by those organs and bodies so appointed by constitutional law. People may initiate the law making process through a proposal, made by at least fifty-thousand electors, of a bill drafted in Articles». This initiative has also been granted to Regional Councils (Art. 121, Par. 2, It. Const.), the National Council of Economy ad Labour (CNEL; Art. 99, Par. 2, It. Const.), an advisory body.  Exercise of Legislative Initiative The law making process is initiated by putting forward a law proposal drafted in articles and accompanied by a report giving the reasons, objectives and characteristics of the law. The proposal may be submitted indistinctly to both Chamber, whereas Deputies and Senators must submit a proposal of law to their respective Chamber. Once the law proposal has been submitted, the Speaker of the Chamber sends it to a parliamentary committee with competence over the subject matter.  Deliberation If the law proposal is accepted, there are three procedures that may be followed to transform the proposal into a law: the ordinary procedure (Art. 71, Par. 1, It. Const.), the so-called debating procedure (Art. 72, Par. 3, It. Const.) and the so- called drafting procedure.  The ordinary procedure The reference committee examines the law proposal in a reporting session. A committee head is chosen to lead the debate on the proposal. The text is then analyzed article by article along with any amendments. For more complex proposals, a selected sub-committee within the reporting committee may be formed to draft a text that is a compromise between the different political positions. The committee then adopts the "base text" and reports it to its Chamber (Art. 72, Par. 1, It. Const.). There may be only one report if committee members reach a unanimous agreement on the same text; otherwise, there may be one or more reports from minority parties alongside with the report of the majority party.  The ordinary procedure After receiving the report (or the reports), the full Chamber discusses the proposal and any amendments and approves it article by article. The Chamber holds a final vote on each article and on the final text of the entire proposal, which may be different from the original text proposed because of amendments to individual articles. In a parliamentary form of government such as Italy, a law proposal is passed with a simple majority voting in favour for it. It becomes law if voted by the political majority of the Government.  Article 72, Par. 4, It. Const. The regular procedure for direct examination and approval by the Chamber is always adopted for law proposals on constitutional and electoral matters and for delegating law proposals, the authorisation and ratification of international treaties and the approval of budgets».  The debating procedure In the debating procedure, proposals are usually sent to the competent committee to be examined, discussed and voted. The law making process starts and ends in the debating committee unless the Government, one-fifth of the committee or one-tenth of the members of the Chamber ask fot the proposal to be debated and voted by the full Chamber (Art. 72, Par. 3, It. Const.). This procedure protects both minority parties' interest in having a law proposal discussed in a plenary session of the Chamber as well as the Government from the arrisal a majority of committee members opposing to or not fully in agreeing with its political agenda.  The drafting procedure In the drafting procedure, first the proposal is discussed by the full Chamber and then sent to a competent committee to draft its articles. The full Chamber then votes on the committee's draft, article by article and on the text as a whole. In other words, the full Chamber approves a bill whose text was drafted in the parliamentary committee.  The end of deliberation Regardless of the type of procedure initiated, once the law making process is concluded in one Chamber, the proposal passes to the other Chamber for debate and vote. With the double vote, i.e. when the second Chamber has approved the same text voted by the first Chamber with a simple majority (that is the majority those members present), the law is declared perfect. This law, together with a message from the Speaker of the Chamber that voted last, is transmitted to the President of the Republic, who can check the procedure followed is regular. If the second Chamber amends the text voted by the first Chamber, the first Chamber must re-approve the amended text. This passage from one Chamber to another continues until both branches of Parliament vote an identical text.  Integration and Effectiveness A law approved by the two Chambers of Parliament is perfect but not effective yet. The law does not produce any legal effect because it has not been enacted. A law is presented to the President of the Republic, so he can verify its legitimacy and constitutional merit. The President may either enact the law within 30 days from the last Chamber's final vote or send it back to the Chambers and ask for a new deliberation stating the reasons why he wants it to be re-examined. At this point, according to Art. 74, par. 2, It. Const., Parliament may re- approve the law that has been sent back. If this is the case, the President is obliged to enact the law. A law must be published in the Official Gazette within 30 days from its enactment for its effects to be enforced. 15 days after its publication, the law enters into force.  Acts Having Force of Law Legislative decrees (Art. 76, It. Const.) and law decrees (Art. 77, It. Const.), i.e. acts having force of law issued by the Government, are considered primary sources on the same level as ordinary State laws. These are the only two cases in which the Constitution delegates the Government to exercise primary legislative power instead of the Parliament, the only competent body with the prerogative to exercise power in compliance to the provisions of Art. 70, It. Const. In this cases, Parliament controls the Government's primary law making activity: for a legislative decree the control is preventive; for a law decree, the Government's exercise of law making power is controlled afterwards. Legislative decrees and law decrees have been at the same level by ordinary laws. Therefore, they have the same innovative capability (active force) and the same resistance (passive force). As such, they can repeal or amend previous laws and cannot be repealed or amended by secondary sources.  Legislative Decrees For legislative decrees it is Parliament that decides to delegate the Government to adopt primary sources of law. Parliament makes this decision when it is better not to iusse the law directly either for technical or political reasons (such as the re-organisation of the National Health Service or the reform of the Criminal Code).  Legislative Decrees ARTICLE 76, IT. CONST: «The exercise of the law making function may not be delegated to the Government unless the principles and guiding criteria have been established by the Chambers, and then only for a limited time and for specific purposes».  Legislative Decrees The law delegating the exercise of law making power is a parliamentary law approved by ordinary procedure (Art. 72, Par. 4, It. Const.). The law making power can’t be delegated for more than two years. Law no. 400/1988 expressly asks for the preliminary opinion of the parliamentary committees competent on the subject matter for the legislative decree to be approved. The delegating law must also indicate the guiding principles, criteria, objective, subject matter, and time limit within which the Government has to adopt the legislative decree. These limits are obviously aimed at limiting the Government's primary law making power. As such, it cannot exercise this power permanently or on undefined subject matters without guiding law making principles and criteria. Legislative Decrees: the relation between delegating law and legislative decree Law Decrees Law Decrees Law Decrees: procedure The consequenses of temporary nature of the law decree The abuse of the law decree  The broad interpretation of the formula “exceptional cases of necessity and urgency” The re-issueing of decrees, i.e. the adoption of decrees identical or similar to expired ones The limits of the decree law Abrogative Referendum Art. 75 It. Const. Abrogative Referendum: Procedure The control carried out by the Central Office at the Court of Cassation The admissibility judgment of the referendum carried out by the Constitutional Court The admissibility judgment of the referendum carried out by the Constitutional Court The structural quorum Parliamentary Standing Orders Parliamentary Standing Orders Secondary Law Sources Government Regulations Executive regulations Integrative regulations Organizational regulations Independent Regulations Delegated Regulations  Regional Sources of Law institutional pluralism that exists in Italy. Special and Ordinary Autonomies Differentiated Regionalism Regional Statutes Statutes of Regions with Ordinary Forms of Autonomy Relations between Statutes of Ordinary Regions, State laws and Regional Laws  Regional Laws: the reform of Title V of the Constitution (2001) Regional laws: the current framework of legislative powers Regional laws: the current framework of legislative powers  The place of regional law in the hierarchy of sources of law Regional laws: Procedure  Regional laws: Procedure Regional laws are approved with a relative (simple) majority; however, in some cases, the Statute provides a qualified majority. Legislative Power of Special Regions Regional Regulatory Power Law of the European Union (EU) Primary and Secondary Sources of EU Law The Treaty of Lisbon The Treaty of Lisbon The Treaty of the Functioning of the European Union (TFUE) and the Treaty of Lisbon The Treaty of European Union (TEU) and Treaty of the Functioning of the European Union (TFUE) The European Court of Justice (ECJ) Principle of Attribution Principle of Subsidiarity Non-binding Acts: Reccommendations and Opinions Binding Acts: Regulations … … Directives … … Decisions Relation between EU Law and Italian Law Influence of Secondary Sources of EU Law: Directives Influence of Secondary Sources of European Law: Regulations Influence of Secondary Sources of European Law: Regulations Influence of Secondary Sources of European Law: Regulations Influence of Secondary Sources of European Law: Regulations