Public Law Mid-Term Notes (Lessons 1-10) PDF

**PUBLIC LAW MID-TERM** **[LESSON 1]** **Legal Systems and Constitutional Law: An Integrated Perspective** Legal systems across the globe exhibit significant diversity, yet state legal systems generally maintain a dominant position. Within the Western legal tradition**, common historical ideologi...

**PUBLIC LAW MID-TERM** **[LESSON 1]** **Legal Systems and Constitutional Law: An Integrated Perspective** Legal systems across the globe exhibit significant diversity, yet state legal systems generally maintain a dominant position. Within the Western legal tradition**, common historical ideologies** shape the framework of these systems. The state has evolved, particularly regarding human rights, which now intertwine both domestic legal structures and international standards. Ex. *A comparative analysis reveals that Italy\'s parliamentary system, rooted in the 18th-century English model, differs notably from the presidential system employed in the United States. This distinction illustrates how various governance frameworks influence legal interpretations.* Understanding the essence of law requires distinguishing between **two primary theories**: - **Positive law:** asserts that law consists of rules created by recognized authorities, such as parliaments or constitutional assemblies. - **Natural law:** states that certain rights are inherent to human beings, often based on religious principles, suggesting that these rights are not subject to revocation by any authority. The evolution of legal systems can be traced back to the Modern Age, spanning the **15th to 17th centuries**, during which new political and legal institutions emerged. This period saw the foundations of Roman law diverging into distinct paths, ultimately giving rise to the traditions of **Common Law** and **Civil Law**. The growth of rational administration led to the establishment of **Jus Publicum Europaeum,** a framework designed to regulate state interactions based on shared religious roots, economic ties, and cultural influences. As these principles developed on both sides of the Atlantic, a **cohesive Western society** began to take shape. The constitutions of modern and contemporary states emerged as products of a complex interplay between legal and political institutions influenced by a shared history of Western constitutionalism. Thus, a **comparative and historical approach is vital** for understanding constitutional law, as it provides a comprehensive overview of how national legal systems evolved from this transnational tradition. This approach highlights that constitutional law and structures are shaped more by **historical contexts** and cultural experiences than by abstract theories: a thorough understanding of these historical developments enhances our grasp of the functions and nature of constitutional law today. **Constitutionalism: Origins and Key Features** Constitutionalism is a **political and legal doctrine** that emerged in England during the seventeenth century and rapidly spread across North America and Western Europe. It became the key ideological foundation behind the three significant revolutions of the Modern Age in the Western world. As the political and legal dimension of liberalism, constitutionalism shares liberalism's philosophical foundations and political aims---primarily fighting **against monarchical absolutism** and **reshaping political power**. Its core purpose was to limit political authority through three main legal mechanisms: 1. **Written Constitution**: The adoption of a written constitution that sets prescriptive rules for state institutions and serves as the supreme law over all state actions. 2. **Separation of Powers**: The division of state powers among different branches of government to prevent the concentration of authority. 3. **Protection of Individual Rights**: Ensuring the legal protection of a broad range of individual freedoms and rights. Constitutionalism also affirms the **rule of law**, which dictates that political power should not be exercised arbitrarily by a sovereign but must adhere to established legal procedures and frameworks. It promotes a **contractarian** view of political sovereignty, where power originates from the people\'s consent and is delegated to representative institutions. This concept of **popular sovereignty** emphasizes the crucial role of popular movements in achieving the goals of constitutional revolutions. As these revolutions progressed, constitutionalism evolved, gaining new values and meaning, particularly as it intertwined with the process of democratization in the Western world during the nineteenth and twentieth centuries. **The Foundations of Constitutionalism and Natural Law** Constitutionalism, as a doctrine, finds its roots in ancient political and philosophical thought---what is sometimes referred to as **\"ancient constitutionalism.\"** Greek philosophers of the classical age, such as Plato and Aristotle, were among the first to link governance with the idea of **imposing constraints** on political authority. This was intertwined with the theory of **natural law**, which posits the existence of a higher law, derived from nature, human reason, or divine will, to which all human-made laws must conform. However, it was **through Roman and Christian philosophy** that natural law became more fully defined. In **Cicero**'s *De Republica*, for example, the concept of natural law is clear: natural law is **universal and immutable**, standing above human-made laws. This idea carried into **Christian political theory**, where natural law, viewed as the **will of God**, provided a foundational constraint on the idea of unlimited sovereignty. In medieval Europe, philosophers such as **Thomas Aquinas** and **John of Salisbury** expanded on the concept, blending Christian theology with legal philosophy. In their view, natural law, ordained by God, should guide and **restrict the authority of human-made laws**. This tradition of natural law eventually permeated English legal thought, where it merged with the **rule of law** principle, especially in the works of medieval jurists and later thinkers such as **John Locke** in the 17th century, rooted in the historical tradition of **customary law**, also referred to as *lex terrae* (the law of the land). While monarchs historically held **absolute authority** over the political decisions of the kingdom (*gubernaculum*) and the enforcement of the law (*iurisdictio*), the concept of law evolving beyond royal decree emerged over time. **Aristotle's Political Theory**\ In his work *Politika*, Aristotle examined the best form of government in a pioneering way. He rejected: - **Monarchy**, as it could easily lead to tyranny. - **Aristocracy**, which could devolve into oligarchy by favoring the richest. - **Democracy**, which, in his view, represented the interests of the poorest class and could result in class-based rule. Instead, Aristotle proposed a **mixed form of government**---one in which all social classes share power through various institutions. This balance of power, which he termed **Politeia**, allowed for a more stable and equitable government. **Mixed Government and the Roman Republic** Later thinkers, including those who developed the Roman Republic's political structure, built on Aristotle's ideas. In the Roman Republic, power was shared among: - **Consuls** (representing monarchy), - **Senate** (representing aristocracy), - **Plebeian Council** (representing the people in a democratic sense). This **balanced model** aimed at achieving **political peace** and **social stability**, and viewed society as an interconnected whole, where no class or part held undue importance. **Contractarianism and the Feudal System** The roots of **contractarianism**---the idea that political authority is based on a social contract between free individuals---developed during the **Middle Ages** under **feudalism**. Feudal contracts were based on mutual obligations of submission and assistance between lords and vassals, legitimizing political authority through these personal agreements. As society moved toward the **Modern Age**, these ideas evolved into a **secular doctrine of contractarianism**, which became a foundation of **modern constitutionalism**. Key principles included: - The **equality of all men**, - The existence of a **higher legal framework** binding the government, - The concept that **legitimate government rests on the consent of the governed**. **Separation of Powers** These ideas led to the **separation of powers**, establishing limits on political authority. This doctrine laid the groundwork for a government where powers are divided to prevent abuse, and where the people\'s consent is essential for legitimacy. **Natural Law and Resistance to Tyranny** Influenced by **jusnaturalism** (natural law), contractarianism also fostered the idea of **intangible limits on political power**. Citizens were seen as justified in resisting unjust laws or rebelling against tyrannical rulers, reinforcing the notion that **authority must be justly exercised** within the bounds of a higher legal order. **Recognition and the justness of laws** **Natural rights**, considered by Locke inherent and inalienable, significantly influenced the drafting of the **U.S. Declaration of Independence** and the **U.S. Constitution**. These documents incorporated the idea that men are born with certain unalienable rights---life, liberty, and the pursuit of happiness---that governments must respect. Similarly, **Article 2 of the Italian Constitution** reflects the interpretation of natural law by recognizing \"inviolable rights of the person,\" though it does not create or grant these rights but rather acknowledges their pre-existence. The idea of \"recognizing\" rights is crucial here. **Recognition** implies that the state acknowledges rights that **already exist**; it does not create them. This notion of pre-existing rights, linked to the resurgence of natural law in the 20th century, gained momentum in the aftermath of **World War II**. The war, along with the atrocities of totalitarian regimes such as Nazi Germany and fascist Italy, brought about a re-evaluation of natural law principles. The legal atrocities of these regimes---like the racial laws excluding Jews from public life, which were considered valid under the positivist legal systems of the time---exposed the potential dangers of adhering strictly to **positive law** without considering a higher moral law. In Italy, for example, Jews were expelled from public schools and civil service positions under fascist racial laws, which were enacted and enforced as any other law, despite their moral repugnance. From a positivist perspective, these laws were valid because they were enacted by the legal authority of the day. However, their legal validity did not prevent them from being unjust. This raised the question: can we still adhere to a strictly positivist view of law, where all laws enacted by a legitimate authority must be obeyed? Or is there a higher moral standard---natural law---that compels us to refuse obedience to certain laws, even when they have been legally enacted? This post-war reconsideration of natural law principles led to the conclusion that there must be limits to legal authority, and that certain fundamental rights cannot be overridden by state legislation. These ideas became enshrined in many post-war constitutions, including the Italian Constitution, as a safeguard against future abuses of state power. **[LESSON 2]** (DA INTEGRARE) **[LESSON 3]** **LECTURE ON "ANTINOMIES" READING** **Introduction: Defining Sources of Law and Criteria for Determining Applicable Law** **Every legal system defines itself by identifying its own sources of law**. According to Grimm, the most important source of law is **legal documents**. The first place to search for other sources of law is typically the constitution itself, as it represents the highest form of law. This also means that conflicts between norms are inevitable, but only **one rule** will be relevant in a given situation. The key is being able to identify the single applicable rule in any situation, especially because of the constant shifts within the legal framework. Legal systems, despite differences in details, generally **share** the same foundational principles. There are four primary criteria for determining the relevant law: **technological competence, interpretation, chronology, and hierarchy**. These criteria help determine which law should apply in specific situations. While these four can technically be reduced to two core criteria for simplicity, the broader enumeration is more useful for teaching purposes. **Interpretation** **Interpretation** is a crucial element in the legal field. It involves various disciplines, including philosophy and general legal theory, influencing how legal intentions are understood. Legal interpretation starts from the assumption that legal rules are most often **written**, especially in modern legal systems. Written rules are common, particularly in constitutional and legislative acts. For example, most legal systems, with few exceptions like the UK, rely on written constitutions and statutes approved by parliaments. Interpretation is a mental process through which meaning is derived from written legal texts. This process involves **analysing the words** and phrases in legal documents to **understand their intended command** or prohibition. For instance, when reading a constitutional or parliamentary document, the interpreter must extract the underlying meaning and content from the words laid out in the text. - **Ambiguity in Legal Texts and Solutions Tools** Even when legal formulations are presented in a straightforward, descriptive manner, we must acknowledge that these texts represent legal duties and propositions. The process of interpretation, however, is often much more complex. For instance, a legal text can sometimes be ambiguous, presenting **two possible and mutually exclusive meanings**---either it means A or it means B. This ambiguity might arise because the members of Parliament who drafted the law did not fully anticipate the unclear phrasing. However, some level of ambiguity is inevitable, as **language is an imperfect tool**. When applying a rule to a specific situation, we must resolve such ambiguities. Legal doctrine provides several **tools for interpreting texts**, such as **seeking the intent** of the legislators who enacted the law. Interpretation helps solve legal conflicts (antinomies) by identifying the meaning that aligns with other legal rules. If one interpretation conflicts with another rule while the alternative interpretation does not, we must **prefer the one that harmonizes with the legal system**. In cases where both interpretations seem equally justifiable, we should discard the one that causes conflict and choose the interpretation that maintains harmony with the existing legal framework. **Hierarchy** Sometimes, despite efforts to harmonize the interpretation, a **conflict** remains. In such cases, we must consider whether the conflicting rules come from the **same or different sources of law**. The hierarchical relationship between legal sources becomes important here. If one rule comes from ordinary law and the other from constitutional law, we must recognize that these sources **do not hold the same position** in the legal system. The **constitution, being the supreme law, takes precedence** over all other legal sources. Its fundamental nature translates into its hierarchical superiority over ordinary laws and other sources of law. In most legal systems, the constitution prevails over all other legal rules. No rule may alter constitutional provisions. This is what defines a **\"rigid constitution\"** (Grimm). In the contemporary world, most countries have rigid constitutions, not flexible ones. A flexible constitution would place itself on the same hierarchical level as ordinary legislation, meaning ordinary laws and the constitution would be of equal authority. However, most constitutions have the characteristic of rigidity, meaning they occupy a supreme position---no other rule, regardless of when it was enacted, can **conflict with the constitution**. *Example: When the Italian Constitution came into effect on January 1, 1948, it imposed itself on an existing legal system composed of laws, statutes, and royal decrees from earlier periods. The Italian legal system did not start from scratch; doing so would have caused chaos. Without existing legislation, there would have been no civil code regulating contracts, employment, or criminal law, creating legal uncertainty. Thus, the new constitution became the supreme source of law, and the task was to determine which pre-existing legal rules were in line with the new constitutional framework.* - **Application of the Hierarchical Principle**\ After the new constitution's introduction, it was necessary to assess the conformity of all existing laws with constitutional rules. Any new law passed by Parliament also had to comply with constitutional provisions. When applying the hierarchical criteria, the date of enactment of conflicting rules becomes irrelevant. If there is a hierarchical relationship between the constitution and another law, the constitution, being superior, prevails, regardless of the timing of the other rule's introduction. - **Resolving Conflicts with the Constitution**\ In cases where a conflict arises between the constitution and another law, the higher rule (the constitution) must prevail. In Italy, for instance, the Constitutional Court has the competence to declare the existence of a conflict and take the necessary steps to resolve it. Thus, when a rule is found unconstitutional, it is discarded. This principle applies to both new laws and laws enacted before the constitution, such as those from the Statuto Albertino or the fascist regime, that were found to be in conflict with the Italian Constitution. While Parliament can approve legislation, conflicts with superior laws---like the constitution---should not happen. However, when such conflicts do arise, they are viewed as pathological by legal scholars. Ideally, legislation should never contradict superior rules. A law in conflict with the constitution, or any other higher law, is considered invalid. This principle applies to all hierarchical relationships within the legal system. - **Consequences of Hierarchical Violations**\ When a lower rule violates a higher rule, the **inferior rule is rendered invalid** from the moment of its conflict with the superior rule. However, this invalidity **does not mean** the rule has **no effect** at all. A law can still produce legal effects after being enacted by Parliament, even if it is later declared unconstitutional. There is **usually an interval** between when a conflicting law is enacted and when the court declares it unconstitutional. *Example: Laws enacted before the Italian Constitution of 1948 were technically unconstitutional from the moment the Constitution came into effect. However, it took years for the Constitutional Court to issue final judgments on these laws. When a law is declared unconstitutional, the ruling not only removes the rule from the legal system but also affects past situations.* This process is known as the **\"annulment effect\"**, which deprives the law of its validity and retroactively eliminates its legal consequences. - **The Role of Legal Certainty***\ *Despite this retroactive effect, **legal certainty**---meaning stability in legal relationships---imposes some **limitations on how far back** the effects of annulment can reach. While unconstitutional laws must be annulled, in certain instances, past legal effects **cannot be overturned** because doing so would **violate the principle of legal certainty**. Therefore, the principle of retroactivity is not absolute and is sometimes limited to **avoid destabilizing** established legal relationships. - **Hierarchy in Legal Systems**\ This concept of hierarchical invalidation applies not only to constitutional law but also **to lower levels** of the legal system. For example, ordinary laws are superior to regulations enacted by executive bodies. Ministers can issue regulations, but these are considered **\"secondary legislation\"** and are subordinate to parliamentary legislation and constitutional rules. Different legal systems may have their own mechanisms for managing these hierarchical relationships, but the principle remains that superior laws take precedence over inferior ones. **Chronology**\ Sometimes, and often, **conflicts** arise between rules produced by the **same source of law** or from sources that are **at the same hierarchical level**. In such cases, the hierarchical criterion cannot apply because the rules are on equal footing. The interpretive tools also fail to resolve the conflict since there is no possible interpretation that can harmonize the conflicting rules. Instead, the conflict must be resolved using another criterion---**chronology**. The chronological criterion dictates that the **more recent rule should be applied**. In cases where reconciliation is impossible, the newer legislation prevails over older laws. This process is referred to as **\"repeal\"** or **\"abrogation.\"** This is **different from annulment**, which occurs in a hierarchical relationship. The previous rule in conflict with the newer one is repealed or abrogated but not annulled. The idea of legal systems as \"sources\" of law highlights their continuous production of rules, as legal systems constantly need to adapt to new situations. - **Constant Need for Legal Updates: Evolution of the Legal System**\ Especially in modern times, societies and legal systems require frequent **updates** due to social and technological **progress**. For example, environmental protection, a relatively recent legal issue, was not considered important a hundred years ago. Today, it requires both national and international regulations to be effectively addressed. This need for new rules to keep up with changes is part of the natural evolution of legal systems. While the hierarchical criterion is used to resolve conflicts based on supremacy, the chronological criterion represents a natural, physiological **evolution in the legal system**. Societies now require more frequent legal updates to address emerging issues. A hundred years ago, societies may not have needed such regular updates, but today's fast-paced progress makes it essential for legal systems to evolve continuously. **Repeal of a Rule: Not Due to Invalidity** When a rule is repealed, it's **not because the rule was invalid**. Rather, the legislator of the day has chosen to supersede it with a new rule, which is deemed **more appropriate** for the current political, social, or economic circumstances. The previous rule was likely an expression of different political programs or ideologies, but this change is not a matter of validity---it\'s simply an **update**. The chronological criteria indicate that the previous rule will be replaced by the new one for future cases. **From the moment the new rule comes into effect, the previous rule ceases to apply.** However, there\'s generally **no need** to **invalidate the effects** that the repealed rule produced in the past. The rule remains **valid for cases** that occurred **before the new rule** came into force, ensuring continuity and stability in legal relations. When a new rule enters into force, it applies only to future cases from that moment onward. For example, if a new rule takes effect on the 23rd of September, it will regulate all situations that arise from that date forward, but it **does not apply retroactively**. Past cases and situations are governed by the rule that was in force at the time, preserving legal certainty. - **Favorable Legislation for the Accused (Favor Rei)** **Choosing Between Criteria: Hierarchical or Chronological?** The process for resolving legal conflicts follows a clear structure. The **first step** is to determine **which criteria apply**. If there is a **hierarchical relationship** between the conflicting rules, the **hierarchical criteria** take precedence. If **no such relationship** exists, the **chronological criteria** are applied. There's no choice between the two; it's a systematic process. **Competence** **Competence** criteria come into play when the legislative function **is horizontally distributed**, such as in federal or regional legal systems. In such systems, **legislative power is shared** between different territorial entities (e.g., federal and member states). The **challenge** arises when **both levels retain legislative power**, leading to potential conflicts. These must be resolved carefully to avoid chaos in the legal system. ***The United States Case: A Study*** In the U.S. federal system, conflicts between federal and state legislation are resolved by examining the distribution of legislative power as outlined in the U.S. Constitution. Here\'s a breakdown of the principles governing this system: - ***Federal vs. State Legislative Powers*** The U.S. Constitution establishes a federal system where legislative power is divided between the federal government and the states. - **Federal Legislative Powers**: Article I, Section 1 of the U.S. Constitution grants legislative power to Congress (composed of the Senate and House of Representatives), but the scope of this power is limited to specific areas enumerated in **Article I, Section 8**. These enumerated powers include the authority to lay and collect taxes, regulate commerce with foreign nations and among states, coin money, establish rules on naturalization, and more. - **State Legislative Powers**: Any matter that is not explicitly enumerated as a federal power falls within the authority of the states. The Tenth Amendment reinforces this principle by stating that powers not delegated to the federal government by the Constitution, nor prohibited to the states, are reserved to the states. - ***Competence Criteria*** The **competence criteria** are essential in determining which level of government has the authority to legislate on a particular matter. This involves analyzing whether the subject matter of the legislation falls within the federal government\'s **enumerated powers**. If a federal law goes beyond these enumerated powers, it is said to violate the principle of competence and could be struck down as unconstitutional. Conversely, if a state enacts a law that falls under federal authority, that state law can also be invalidated. Federal legislative power is confined to the areas granted by the Constitution. *Example: Congress can regulate interstate commerce but cannot legislate on purely local matters like education, which is typically the domain of state governments. However, over time, certain amendments (e.g., the 13th Amendment, abolishing slavery) have expanded the federal government\'s legislative powers in areas such as civil rights.* - ***The Hierarchical Relationship*** The U.S. Constitution is the supreme law of the land, meaning it is hierarchically superior to both federal and state laws. Both federal and state legislatures are bound by the Constitution, and any law (whether federal or state) that conflicts with the Constitution is invalid. The **Supremacy Clause** (Article VI) reinforces this hierarchy, stating that federal law takes precedence over state law in cases of conflict. - ***Applying the Hierarchical Principle to Competence*** When a conflict arises between federal and state legislation, courts will first apply the **hierarchical principle**, meaning the U.S. Constitution is used as the guiding document to resolve the issue. This is because the Constitution distributes powers between the federal government and the states, and any violation of this distribution would be a breach of the constitutional hierarchy. - ***Incorporation of Competence into Hierarchical Principles*** In cases where the federal government or a state government oversteps its legislative bounds, this is not simply a **chronological conflict, but a hierarchical one**. The competence criteria, in this case, are a specialized application of the hierarchical principle, because the Constitution is superior to both federal and state legislation. Both levels of government are bound by its distribution of power, and any law that violates this distribution is deemed **unconstitutional**. This approach ensures that federal laws only apply to areas where the federal government has been granted authority, and state laws govern all other matters, while both remain subject to the overarching authority of the Constitution. 1. **Legal Orders**\ A legal order is the framework of rules and institutions governing societal behavior. It is essential for maintaining order, resolving disputes, and ensuring societal functioning, underscored by the phrase \"Ubi societas, ibi ius\" (where there is society, there is law). 2. **Sources of Law**\ Legal norms stem from various sources: - **Customary Law**: Based on tradition, more significant in ancient societies but now diminished in favor of formal laws. - **Jurisprudence (Case Law)**: Decisions by courts, crucial in Common Law systems, where precedents shape legal rules. - **Enacted Legislation**: Written laws passed by legislative bodies, primary in Civil Law systems, where statutes hold supreme authority. 3. **Legal Systems**\ Two main systems: - **Civil Law System**: Prevalent in Europe and Latin America, focuses on codified statutes with courts interpreting, not creating law. - **Common Law System**: Found in the U.S. and U.K., prioritizes judicial precedents (stare decisis), where courts actively shape law. 4. **Hierarchy of Sources** - **Customary Law**: Declining importance but relevant in specific contexts. - **Enacted Legislation**: Supreme in Civil Law systems, also important in Common Law. - **Jurisprudence**: Key in Common Law, but also used for interpreting statutes in Civil Law countries. 5. **Normative Conflicts**\ Legal systems manage conflicts between norms through mechanisms like hierarchy, chronology, or competence-based criteria. **[LESSON 4]** The notion of **law** as an **expression of command** gained prominence in the modern era through the works of philosophers like Jean Bodin and Thomas Hobbes in the **17th century**. For Hobbes, law was a product of authority---a sovereign command. This perspective was further reinforced by democratic ideas that emerged during the American and French revolutions, leading to legal theories built on the premise that authority now resided not in a monarch but in the people themselves. **Consequences of the Will-Based View of Law** The idea of law as an expression of the collective will has several implications, particularly in the **interpretation of legal rules**. When interpreting laws, the focus is often on **deriving the command** embedded in the text. This places significant emphasis on the author\'s intent. If the text is ambiguous, the author\'s will can provide clarity. In interpreting **parliamentary statutes**, which represent the will of the parliament, it is essential to consider the **legislative process**: - The proposal author typically provides a report outlining their opinion. - Legislative debates allow members to express their views on proposed changes, but not every vote reflects a clear intention, as some members may not actively participate in discussions. The interpretation of a law should aim to uncover the **objective intent** behind it, rather than merely the subjective intentions of individual authors. - Legislative debates, speeches, and accompanying reports serve as valuable tools for interpretation. - Understanding the statute requires viewing it within the broader legal system, recognizing that it is just **one component** of that system. **Legal Sources and Customs** In addition to parliamentary statutes, there are other sources of law, including traditional sources such as customs: **Customary Law**: Customary law played a more significant role in the past but still holds importance today, particularly in international law. A **custom** arises from the **consistent behavior** of members within a **social group**, characterized by **uniformity** over time. - **Elements of Custom**: - **Material Element**: The habitual behavior observed within the group. - **Subjective Element**: The belief among group members that such behavior is obligatory and legally binding---not merely habitual. In some cases, it becomes challenging to determine whether the subjective belief in the obligation has developed within the community. This assessment is critical in establishing whether the custom has evolved into a **binding legal rule**. **Differences Between Statutes, Customary Law, and Legal Systems** **Statutes Enacted by Parliament vs. Customary Law** - **Statutes**: Statutes are expressions of will, created through a **formal legislative process**. They are documented texts that reflect the intentions and decisions of the legislative body. - **Customary Law**: Unlike statutes, customary law does not originate from a written text or deliberate intent to create a legal rule. Instead, it emerges from **consistent patterns of behavior** within a community. The acceptance of certain behaviors as binding reflects a collective understanding rather than an explicit act of will. - ***Example in the Italian Legal System**: In Italy, customary law is recognized as a source of law but occupies the lowest hierarchical level, referred to as \"Usi\" (usages). Customs can only be applied if they are consistent with the constitution and existing laws.* **Comparative Legal Systems** Legal scholars categorize legal systems into two main families: **Civil Law** and **Common Law**. **1. Civil Law** - **Origins**: Developed in continental Europe (e.g., Italy, France, Germany, Spain, Netherlands) and directly rooted in Roman law, which survived after the fall of the Roman Empire. Subsequent legal developments incorporated elements from various peoples who conquered Italy. - **Legal Rules**: The majority of legal rules are derived from formal sources of law, which are expressions of legislative functions. Judges interpret these statutes and apply general rules to specific cases using a syllogistic approach. **2. Common Law** - **Origins**: Originating from the English legal experience, Common Law evolved in England, where Roman law was once in effect but then diverged in its development. This system extends to the US, UK, and former colonies of the English monarchy (e.g., Australia, New Zealand, Canada). - **Legal Rules**: Legal rules primarily originate from judicial decisions. Common Law reflects the customs of the English people, articulated through tribunal decisions that formalized these customs. - **Role of Courts**: Courts played a crucial role in creating uniform legal rules. In medieval England, judges traveled across the country to administer justice, establishing a body of rules that contributed to legal uniformity. - **Binding Precedent**: The principle of \"binding precedent\" means that decisions made in previous cases serve as a rule for future cases. Judges must consider prior judgments that address similar circumstances, allowing the law to evolve through judicial interpretation without requiring formal statute enactment. **Role of the Common Law Courts** The **Common law courts** were instrumental in limiting the power of the monarchy and establishing a system of individual rights. By asserting that their rulings, based on common principles, were binding across the entire kingdom, the courts provided a check on arbitrary power, including that of the king. They ensured that **laws applied uniformly**, reducing the influence of local customs and the decentralized feudal justice system. This centralization of the judiciary was essential in curbing the local power of feudal lords, who previously controlled the courts and, by extension, the administration of justice. **Separation from Roman Law Tradition**\ England diverged from the Roman law tradition, unlike continental Europe where Roman law influenced codified statutes. In Civil Law systems, legal scholars and legislators defined laws, while in England, legal authority shifted to judges who made rulings based on evolving customs and judicial precedents. This led to the development of Common Law, a flexible system that applied local customs uniformly across the realm, setting it apart from the Roman legal tradition. **Impact on English Constitutionalism**\ The Common Law courts played a crucial role in shaping English constitutionalism. By reinforcing principles like legality, individual rights, and due process, they checked the monarchy\'s power. Courts became key in holding the government accountable under the law, contributing to the development of a legal framework that emphasized judicial independence, the rule of law, and equal justice. **Precedents and Stare Decisis**\ In the Common Law system, court decisions, specifically the *ratio decidendi* (the reasoning behind a ruling), established precedents that lower courts were bound to follow under the principle of *stare decisis*. This ensured consistency and predictability in legal rulings. **Development of Common Law Courts**\ As the monarchy consolidated power, so did the Common Law courts, including the Common Pleas, King's Bench, and Exchequer. These courts gained independence and developed a hierarchical system where higher court rulings became binding on lower courts, ensuring legal uniformity. **Common Law as a Check on Monarchical Power**\ By the sixteenth century, Common Law became a critical tool in limiting monarchical power. Judges allied with Parliament to resist royal absolutism, asserting through constitutionalism that the government, including the king, was bound by the law. The courts\' use of the rule of law limited royal decrees, with precedents serving as fundamental principles superior to arbitrary authority. **Bonham's Case (1610)**\ This case was pivotal in establishing judicial review, where Justice Edward Coke declared that the Common Law could invalidate Acts of Parliament if they conflicted with reason or were impossible to perform. This laid the groundwork for the principle that courts could assess the legality of parliamentary laws, reinforcing constitutionalism **Judicial Review and Constitutionalism** The doctrine established by the courts of Common law---particularly the notion that laws could be judged and nullified if they contradicted basic principles of justice---became a crucial tool in advancing the concept of **constitutionalism**. It laid the groundwork for the modern understanding of **judicial review**, where courts have the power to interpret and, in some cases, invalidate legislation that conflicts with fundamental legal principles or constitutional norms. In essence, the evolution of the **Common law system** into a **mechanism of judicial review** reflects its role in protecting individual rights and ensuring that **no branch of government**---not even the monarchy---**is above the law**. This legacy continues to shape the structure of constitutional democracies, particularly in jurisdictions with a **Common law heritage**. **Distinguishing Cases and Binding Precedent** In legal practice, distinguishing between cases is crucial, especially when faced with precedents. Even if two cases share similarities, key differences may arise that can impact the outcome. For example, consider two car accidents where one involved speeding. If a unique element exists in the second accident that could potentially exonerate the driver or limit their liability, it may justify a different ruling. **The Process of Distinguishing Cases** When analyzing cases, judges must identify both the **similarities to previous rulings** and the **significant differences**. These distinctions can allow a court to **deviate from binding precedents**. Typically, lower courts are bound by decisions of higher courts, such as the Supreme Court. However, if a judge identifies important differences in the new case, they can argue for a departure from the established precedent. The application of precedent can be complex. Judges must decide which aspects of previous judgments to **adhere to** and which to **distinguish from**. Some precedents are binding, particularly those from superior courts, while others may be more flexible. This process is intricate, as judges must navigate various obstacles presented by previous judgments. They must evaluate whether these precedents are **directly applicable** or if they can be **circumvented through distinguishing**. **The Nature of Legal Systems** The traditional explanation for the differences between civil law and common law systems indicates that: - **Common Law Systems**: These systems, which have roots in Roman law, often rely on judicial decisions and the concept of **binding precedent**. Legal rules can develop through case law, with judges forming laws based on previous rulings. The binding effect of precedents must be understood within the **hierarchy of courts**. A higher court's decision is binding on lower courts, but decisions from courts of the same level do not hold absolute authority over each other. - **Civil Law Systems**: In contrast, civil law systems prioritize **statutes** as the **primary source of law**. Legal rules are typically expressed in written form and reflect the **legislative intent**. Judicial decisions are less likely to create binding precedents, though they can influence future interpretations of the law. **The Concept of Binding Precedent and Overruling Decisions** The principle **of binding precedent**, encapsulated in the Latin phrase *stare decisis* (to stand by what has been decided), is fundamental to the common law system. It ensures **consistency** and **stability** in the law, as courts are required to follow established decisions when similar facts arise. However, there are circumstances where a court may choose to overrule a previous decision. **The Overruling Process** A higher court, such as an appellate court, has the authority to declare that a **previous judgment was incorrect**. This can occur if the court concludes that the earlier decision was based on flawed reasoning or inadequate consideration of the relevant facts. In such instances, the appellate court may issue a **new ruling** that replaces the previous one, based on a different ***ratio decidendi*** (the legal reasoning behind the decision). For a court to overrule a decision, it **must be at a higher level** in the judicial hierarchy than the court that made the original ruling. For example, in the UK, the Supreme Court has the final authority to overturn decisions made by lower courts. Until recently, the House of Lords served as the highest court in the UK. However, it has been replaced by the UK Supreme Court, which is now the ultimate authority. Judgments issued by the UK Supreme Court are binding on all lower courts. Nevertheless, the Supreme Court itself is not bound by its own previous decisions, allowing for the possibility of overruling its judgments over time as membership and perspectives change. When a case is overruled by the Supreme Court, it ceases to be considered binding in future cases. Instead, the new judgment **sets the standard** for how similar cases should be decided going forward. This creates a dynamic legal system where previous rulings can be reassessed and revised as societal norms and judicial interpretations evolve. **Complexities in Applying Precedent** When judges evaluate whether to apply a precedent or distinguish a case from it, they must determine **which elements of the facts are relevant** to the decision. For instance, if two accidents involve a speeding driver, other factors such as the color of the car or the number of passengers may be deemed irrelevant. However, certain facts could **significantly influence** the outcome of a case. For example, if the second driver was transporting an injured person to the hospital and used emergency signals, these factors might justify a different ruling than in the first case, where no such circumstances existed. Judges must carefully assess which details are pertinent to their decision-making process. The mechanism of **binding precedent**, coupled with the **potential for overruling**, strikes a balance between **stability in the legal system** and the **flexibility** to adapt to new circumstances. While *stare decisis* provides a foundation for legal consistency, the ability to overrule allows the courts to respond to changing societal values and legal interpretations. **Hadley v Baxendale Ct of Exchequer 1854** The case of **Hadley v Baxendale (1854)** remains highly relevant in contract law, particularly in regard to the principle of remoteness of damages. The case established a key rule for assessing the limits of liability in breach of contract cases, which continues to influence legal decisions today. Here's a summary of the key points: - **Facts of the Case** - The plaintiffs, Hadley & Co., were millers whose mill was halted due to the breakage of a crankshaft. - To repair the shaft, they needed to send the broken one to engineers to use as a model for a replacement. - The plaintiffs hired the defendant, Pickford & Co., a well-known carrier company, to deliver the broken shaft to the engineers. - Although the plaintiffs mentioned that the mill was non-operational, they did not fully explain that the mill could not function without the crankshaft or the urgency of the situation. - The defendants delayed the delivery, causing the plaintiffs to lose profits while their mill remained idle. - **Initial Trial and Verdict** - The plaintiffs sued for the lost profits, and the jury initially awarded them damages of £25. - The defendants argued that they could not have foreseen the loss of profits because they were unaware of the specific circumstances surrounding the importance of the delivery. - **The Court's Ruling and Principle of Remoteness of Damages** - The Court of Exchequer ruled that the case required a new trial, and it laid down a crucial rule: **damages for breach of contract are limited to losses that are either**: 1. **Naturally arising from the breach** (in the ordinary course of things); or 2. **Within the contemplation of both parties at the time of the contract**, particularly if there are special circumstances that could lead to greater damages. - In this case, the defendants were not made fully aware of the special circumstance---that the mill would remain shut until the crankshaft was delivered. Since the plaintiffs did not inform the defendants of these specific consequences, the loss of profits was considered too remote and unforeseeable. The court held that the defendants could not be held liable for the lost profits. **Significance of the Hadley v Baxendale Rule** The ruling established the **\"two-limb test\"** for recoverable damages in contract law: 1. **Ordinary Losses**: Damages that arise naturally, according to the normal course of things, from the breach of contract. 2. **Special Losses**: Damages that result from special circumstances, but only if those circumstances were communicated to and contemplated by both parties when the contract was formed. **Impact on Contract Law** Hadley v Baxendale set a precedent for limiting the scope of damages in breach of contract cases, preventing parties from claiming unforeseeable losses. It remains an essential case in common law jurisdictions, shaping modern interpretations of foreseeability and liability in contracts. This case continues to be studied because it provides clear guidance on how courts determine the scope of recoverable damages and the importance of communication between parties in contractual agreements **[LESSON 5]** **Understanding Federalism** To understand federalism, we need to examine common features of systems that we classify as federal legal systems, though this can lead to circular reasoning. A better approach to defining federalism is to look at it as a dynamic process, not just a static structure. For example, if we consider the U.S. or German constitutions, we often think of federalism as a system with decentralization of power and authority. However, if we adopt a historical perspective, federalism is a process that moves from decentralization toward centralization. - **American Federalism** In the American experience, federalism began with 13 independent states loosely cooperating through a federation. Over time, these states strengthened their cooperation by creating a central government and transferring part of their sovereignty to it. Thus, federalism is a **centripetal process**, where power moves from the periphery to the center. - **Italian Regionalism** Federal systems are not the only models based on territorial distribution of power. Another example is the **regional system**, which has been successful, especially in Europe after World War II. The Italian Constitution of 1948 introduced such a model. Before the republican constitution, Italy had some limited territorial autonomy where towns and provinces were granted administrative powers, though under strong central control. After 1948, however, Italy created territorial bodies with both administrative and legislative functions, resembling the U.S. system. **Constitutional Parallels: U.S. and Italy** Both the U.S. and Italian constitutions now share certain similarities. Both are written constitutions that divide powers across two territorial levels, guaranteeing legislative functions through rigid constitutions that cannot be changed without constitutional amendments. For example, in the **McCulloch v. Maryland** case, the U.S. Supreme Court emphasized the need to refer to the Constitution when determining the distribution of powers. Italy\'s regional model operates similarly: the 2001 constitutional amendment introduced a system where legislative functions are enumerated, and any powers not explicitly assigned to the central government are reserved for the regions, just as unenumerated powers in the U.S. belong to the states. **Federalism vs. Regionalism** Thus, while the U.S. federal system and Italy\'s regional system are similar, particularly after the 2001 reform, the difference lies in the nature of these processes. Federalism moves from plurality (independent states) to centralization, whereas regionalism moves in the opposite direction. In regionalism, an originally unitary state decides to create territorial bodies and transfers part of its centralized legislative power to them, representing a **centrifugal process** where power is distributed from the center to the periphery. **European Integration: A Case Study in Federalization** The process of European integration offers a compelling example of federalization in action. Beginning in the **1950s** with the creation of the **European Communities** by six independent states, this process has progressively expanded, both in scope and geography. Initially focused on limited areas such as economic regulation, the European Communities gradually assumed **more functions**, ultimately affecting nearly all sectors relevant to the citizens of member states. Over time, the number of member states grew from **six to 27**, while the scope of European cooperation also deepened, with more functions being transferred to the supranational level. By **2007**, the European Union (EU) had absorbed these communities, becoming the central governing structure in the ongoing process of European integration. Although some differences between national systems remain, the process has undeniably moved along a path of federalization. Despite this federalizing trend, **we cannot yet speak of a unitary \"European people\"** as envisioned by political theorists. Nor could we accurately brand the EU treaties as a constitution in the traditional sense, as attempted in the early 2000s. Such a change would be largely symbolic and not reflective of deeper structural realities. A key theme in both European integration and federalism is the **vertical distribution of powers**, where authority is shared between different levels of government. This theme is also central to political philosophy and constitutional law, especially in the context of the **separation of powers**, a concept developed to prevent the concentration of authority that could lead to authoritarianism. **The Concept of Power Distribution** This concern for distributing power dates back to ancient philosophers like Aristotle and Cicero. In **Aristotle\'s Politics**, he reflected on the best ways to balance power within a political system, while **Cicero** saw the Roman Republic as an exemplary model of governance, balancing the interests of different social classes---aristocracy and the popular assembly---through a distribution of political authority. The Roman system, with its consuls, senate, and popular assemblies, was designed to ensure that every societal component had a say in governance. This concept resurfaced in the modern era and is clearly expressed in **Article 16** of the **1798 French Declaration of the Rights of Man and of the Citizen**, which states that the **separation of powers is a fundamental goal of any constitution**, alongside the protection of rights and freedoms. A constitution\'s main purpose, therefore, is twofold: to **guarantee individual rights** and freedoms, and to **ensure the separation of powers** as a means of safeguarding those rights. The **separation of powers** is not merely a structural element but an essential instrument for securing freedom. To effectively guarantee rights and freedoms, there must be a government built on the separation of powers, as both are intrinsically connected. Without proper safeguards, the concentration of power can undermine the very rights that a constitution is meant to protect. In the modern era, the concept of the **separation of powers** is closely associated with two influential political thinkers: **John Locke** and **Montesquieu**. Locke, writing his *Treatise on Government* at the end of the 17th century, and Montesquieu, in his seminal work *The Spirit of the Laws* (published roughly 30 years later), were pivotal in shaping the frameworks of the **American Constitution** and the **French Revolution**, respectively. **Locke\'s Tripartite Division of Power** Locke\'s analysis begins with a distinction between three types of power: **legislative, executive, and federative**---the latter being a term Locke uses for what we might now call foreign relations or external affairs. For Locke, these powers reflect the different ways political authority manifests in a commonwealth (synonymous with the state). The **legislative power** is the authority that determines the direction of the community, deciding how the commonwealth\'s resources should be employed for the common good. In Locke's view, the legislative body need not be constantly active, as laws, once made, are meant to have lasting force. Therefore, Locke envisioned a **temporary legislative body** that assembles intermittently to create laws and then dissolves, with its members returning to their roles as ordinary citizens. Although the legislative function may be sporadic, the laws it creates must have a **\"constant and lasting force.\"** For Locke, this leads to the necessity of a separate power: the **executive power**. Since laws require perpetual enforcement, a body distinct from the legislative is needed to ensure their **daily execution**. This separation allows for a stable governance structure where the legislative power intermittently creates laws, and the executive power enforces them consistently. Locke also introduces the idea that individuals entering into a political community give up part of their **natural freedom** in exchange for **political freedom**, which is protected by laws. This political freedom exists within the commonwealth, governed by the laws enacted by the legislative and enforced by the executive. However, Locke extends his analysis beyond the individual commonwealth. He observes that each society or state, while composed of individuals, exists within a broader world of states, each in a \"state of nature\" with respect to the others. This means that, just as individuals within a society need governance to escape the state of nature, so too do states themselves require some form of governance or regulation in their relations with one another. This leads Locke to propose a **third power**---the **federative power**---which is responsible for managing the relationships between different states and ensuring the commonwealth\'s external relations and diplomacy. In Locke\'s theory, the **legislative power** makes decisions for the commonwealth, while the **executive power** enacts these laws. However, Locke introduces a third level of power, the **federative power**, which deals with a state\'s external relations. This includes making war, peace, and alliances---essentially managing foreign policy and diplomacy. Locke\'s **tripartite division** of powers consists of **legislative, executive, and federative powers**, which differs from the more common tripartite division we recognize today: **legislative, executive, and judiciary**. Locke does not separate the judiciary; instead, he considers the judiciary to be part of the executive power, as it enforces and interprets laws. **Montesquieu\'s Influence on Separation of Powers** In contrast, **Montesquieu**, in his work *The Spirit of the Laws*, famously articulated a clearer and more influential theory of the **separation of powers**. He was deeply influenced by the English constitution, which by the 18th century had developed a system based on **"checks and balances"** between Parliament and the monarchy. Montesquieu saw the separation of powers as essential for preventing tyranny and protecting liberty. Montesquieu's three powers were: 1. **Legislative power** -- responsible for creating laws. 2. **Executive power** -- responsible for implementing and enforcing laws, particularly in domestic civil matters. 3. **Judicial power** -- responsible for judging and resolving disputes, especially in criminal and civil cases. Montesquieu argues that if the same person or body holds both the legislative and executive powers, there is a risk of **tyranny**, as the laws may be enacted arbitrarily or unjustly. Similarly, if the **judiciary** is not independent, there would be no fairness in the application of laws, and citizens would fear the authority of the state. In Montesquieu\'s model, the **separation of powers** is crucial to ensure that no one branch can dominate or oppress the people. **U.S. Constitutional Framework of Powers** The **United States Constitution** embodies this principle, reflecting Montesquieu's influence. Article 1 grants legislative power to **Congress**, Article 2 grants executive power to the **President**, and **Article 3** establishes the **judicial power** in the **Supreme Court** and other inferior courts. This structure is designed to create a **balance of powers**, ensuring that the different branches of government can check and balance one another, preventing any single entity from gaining too much control. **Article 3** also establishes the **judicial power** of the United States in the **Supreme Court** and any inferior courts that Congress may establish. One of the key provisions is that **federal judges hold office during \"good behavior,\"** meaning they essentially have lifetime appointments unless they are impeached. This guarantees **judicial independence**, as judges cannot be removed for political reasons, ensuring their decisions are based on law, not external pressures. Additionally, **Article 3** ensures that judges receive a **salary** for their services, which **cannot be diminished** while they are in office. This protection of judicial compensation further shields judges from external influence, as it prevents the legislative or executive branches from manipulating judges\' pay to influence their rulings. These protections help maintain the **separation of powers**, preventing the judiciary from becoming subordinate to the other branches. However, while the Constitution provides this framework, it is important to recognize that the **ideal model of separation of powers**---where each branch operates entirely independently of the others---does not fully exist in practice. Instead, as political thinkers like **Montesquieu** suggested, the U.S. government operates on a system of **checks and balances**. This system ensures that no single branch becomes too powerful, but it also involves a degree of **overlapping powers** and **necessary cooperation** between the branches. For example, while the judiciary is independent, it depends on the executive branch to enforce its rulings. Similarly, judges are appointed by the **President** (executive branch) and confirmed by the **Senate** (legislative branch). This interdependence reflects the **reciprocal interference** between the branches, where they must cooperate to some extent while also providing checks on each other\'s authority. In practice, no system of government fully embodies the **pure separation of powers**. Instead, most governments, including the U.S., rely on a more **dynamic system** that balances **mutual limitations** with **cooperation**. The goal is not to create rigid divisions between the branches but rather to prevent any one branch from accumulating too much power. This is achieved through the system of **checks and balances**, where each branch has the ability to **limit** or **counterbalance** the others. For instance, the judiciary can rule on the constitutionality of laws (a check on the legislative branch), and the President can veto laws (a check on the legislative branch), while Congress can impeach the President or judges (a check on the executive and judicial branches). Thus, the **practical application** of the separation of powers is more complex than the theoretical model. Rather than a strict division, it involves a **combination** of shared responsibilities and oversight mechanisms, ensuring that **no branch** can exercise total control over the government. **The Constitution of Philadelphia and the Creation of a Federal Government** The **Constitution of Philadelphia** aimed to strengthen cohesion among the states through the creation of a new **Federal Government of the Union**, with institutions elected by the people and a wide set of legislative, executive, and judiciary competences. This new government replaced the weak **Confederation** system established in 1776, which had limited powers and required broad consensus among the states for decision-making. **Federalism: Distribution of Powers** The Framers of the Constitution invented **federalism** to establish a balanced method of power distribution between the governments of the member states and a central federal government. The **Federal Government** was given broader powers, allowing the Union to act independently in politics and reduce interference from individual states. **Classification of Government Systems** In Western constitutionalism, government systems are classified based on the relationship between the **executive** and **legislative** branches: - **Presidential Government**: - First established in the **United States Constitution** of 1787, this system is based on a **rigid separation of powers** between the legislative and executive branches. Both branches derive legitimacy from independent elections. - **Parliamentary Government**: - Emerging in 19th-century **United Kingdom**, this system relies on **cooperation** between the legislative and executive branches, with the **cabinet** being responsible to the parliament. A **relation of confidence** exists between the two, allowing for the removal of the cabinet through a vote of no confidence. - **Semi-Presidential Government**: - Adopted by some 20th-century constitutions (e.g., **Germany 1919**, **Ireland 1937**), this system blends elements of both presidential and parliamentary governments, with a **directly elected president** and a cabinet responsible to the parliament. **The Legislative Branch: Congress** The **United States Congress** is bicameral, composed of two chambers: the **House of Representatives** and the **Senate**. **The House of Representatives:** - Members are elected every 2 years by the citizens. - The **Three-Fifths Compromise** was a pragmatic solution to allocate seats, counting slaves as three-fifths of a white free male to resolve a debate between northern and southern states. **The Senate:** - A key invention of the **Philadelphia Convention**, the Senate was designed to balance the power between large and small states. Each state is represented equally by two senators, originally appointed by state legislatures (changed to popular election in 1913 with the Seventeenth Amendment). - The Senate shares **legislative power** with the House but also has special responsibilities, such as ratifying **international treaties** and approving **presidential appointments**. **The Executive Branch: The Presidency** The **President of the United States** is elected for a term of 4 years, with a **Vice President** to succeed if necessary. Although technically an **indirect election** via the **Electoral College**, it has effectively become a **direct election** due to the growth of democratic participation and political party influence. The President serves as both the **Chief of State** and leader of the **executive branch**, with the power to appoint federal officials (with Senate approval) and lead the federal administration. **Separation of Powers and Checks and Balances** The **Founding Fathers** implemented a **separation of powers** between the legislative and executive branches to prevent concentration of authority and ensure government stability. This principle was complemented by a system of **checks and balances** to allow for opposition and cooperation between branches: - **Presidential Veto**: The President can veto laws passed by Congress (Article 1, Section 7). - **Impeachment**: Congress holds the power to impeach and remove the President, Vice President, and other federal officials for crimes such as **treason**, **bribery**, or other **high crimes and misdemeanors** (Article 2, Section 4). - **Senate Consent**: The Senate must consent to presidential appointments and the ratification of treaties (Article 2, Section 2). These checks and balances help preserve the balance of power, protect individual rights, and prevent tyranny. **Impeachment** Impeachment allows for the removal of high-ranking officials, including the President, for crimes or misconduct. The **House of Representatives** investigates and approves the articles of impeachment, while the **Senate** conducts the trial, requiring a two-thirds majority for conviction. If the President is impeached, the **Chief Justice** presides over the Senate trial **Presidential Veto** A key instrument of checks and balances in the American Constitution is the presidential veto on bills passed by Congress. The Framers drew inspiration from the British system, where the monarch had legislative input through royal assent. However, while some delegates at the Philadelphia Convention wanted a strong executive with veto power to moderate legislation, others, wary of abuses by colonial governors, rejected an absolute veto. A **compromise** was reached, granting the President a **qualified veto**. If the President vetoes a bill, Congress can override it with a two-thirds majority in both Houses. According to **Article 1, Section 7** of the Constitution, the President has **10 days** to sign or veto a bill after Congress presents it. If the President takes no action within those 10 days and Congress is in session, the bill becomes law. However, if Congress adjourns during that period, the bill is rejected through a **pocket veto**. **Advice and Consent** The **advice and consent** procedure, outlined in **Article 2, Section 2**, gives the President the power to create international treaties and appoint high officials, including federal judges, with the **Senate\'s approval**. Treaties require a **two-thirds Senate majority**, while appointments need only a **simple majority**. This procedure ensures Senate involvement in key decisions, fostering cooperation between the executive and legislative branches. **Judicial Branch** The Philadelphia Convention initially gave little attention to the organization of the federal judiciary. The **Founding Fathers** saw the federal courts as playing a **residual role** in comparison to state courts. Thus, the detailed organization of federal courts was left to future legislation by Congress. **Article 3** of the Constitution regulates the **federal judiciary\'s jurisdiction** and establishes the **Supreme Court**. Federal courts\' jurisdiction includes cases involving the **Federal Constitution**, federal statutes, international treaties, and disputes between states or citizens of different states. The **Supreme Court** has both **appellate jurisdiction** (reviewing lower federal court decisions) and **original jurisdiction** in cases involving states, foreign states, and ambassadors. **Composition and Organization of the Supreme Court** The **Supreme Court** originally had six justices, later expanded to nine (one **Chief Justice** and eight **associate justices**). The **President appoints** justices with the Senate\'s advice and consent. Supreme Court decisions are made by majority vote, with **dissenting** and **concurring opinions** providing alternative viewpoints and fostering public debate. The Supreme Court can hear appeals from lower courts and has **original jurisdiction** in cases involving states and foreign parties. **Structure of American Federalism** In American federalism, legislative, administrative, and judicial functions are divided between the **Federal Government** and the states. **Article 1, Section 8** lists the **federal legislative competences**, while any powers not enumerated belong to the states. This division was meant to prevent federal encroachment on states\' rights. Federal executive and judicial branches handle matters related to federal legislation, and in cases of conflict between state and federal law, **federal law preempts state law** under the principle of **federal preemption**. **Supremacy Clause** The **Supremacy Clause** in **Article 6, Clause 2** ensures the **Constitution** and federal laws are the supreme law of the land, binding on state courts even when state laws or constitutions conflict. This clause guarantees the uniformity of national politics and prevents conflicts between state and federal legal systems. **Constitutional Rigidity** A key feature of the U.S. Constitution is its **rigidity**, meaning that amendments require a more complex process than ordinary legislation. This ensures stability and prevents changes based solely on political majorities. **Article 5** outlines the process for amending the Constitution, which involves two phases: the **proposal phase** (requiring a two-thirds majority in both Houses of Congress or a constitutional convention) and the **ratification phase** (requiring approval by three-fourths of state legislatures or state conventions). Additionally, **Article 5** prohibits amendments that would alter the principle of **equal representation in the Senate**, safeguarding this foundational compromise of the Constitution. **Keywords:** - **Federal Preemption:** Federal law overrides conflicting state law in areas listed in Article 1, Section 8. - **Constitutional Rigidity:** Constitutional amendments are subject to a special procedure, ensuring the Constitution's stability as the superior source of law. **The Progress of American Constitutional Law in the Nineteenth Century: From the Early Republic to the Civil War** **Stability and Political Struggle** The adoption of the **Federal Constitution** and its ratification by the states, along with the conclusion of the War of Independence, enabled American society to evolve under stable conditions. During the **Early Republic (1789--1828)**, the political landscape was defined by the conflict between the **Federalist Party** and the **Republican Party**. - **Federalist Party**: Led by **John Adams** and **Alexander Hamilton**, this party garnered support from the northern states and the affluent classes. They advocated for a strong federal government and aimed to enhance the industrial economy and banking system. - **Republican Party**: Led by **Thomas Jefferson**, this party had its base in the southern states and the western frontier. It supported a small-farm economy, the plantation system, and states' rights, while promoting westward expansion and the relocation of Native American tribes. **Constitutional Tensions and Supreme Court Influence** A key point of contention was the **constitutional construction** of federal legislative powers. The Constitution limited federal government powers to those enumerated in Article 1, Section 8. However, broad clauses like the **interstate commerce clause** and the **necessary and proper clause** allowed for a wider interpretation of federal powers, potentially infringing on states' rights. **Role of the Supreme Court** The Supreme Court, under **Chief Justice John Marshall**, played a pivotal role in interpreting these provisions. The Court adopted a broad interpretation, aligning with Federalist principles: 1. **McCullock v. Maryland (1819)**: Upheld the establishment of the Federal Bank of the United States. 2. **Fletcher v. Peck (1810)**: Extended judicial review to state laws, enhancing the Court's authority. 3. **Martin v. Hunter's Lessee (1816)**: Affirmed the Court\'s power to review state Supreme Court decisions concerning federal law. Despite the influence of the Federalist Party, it faced electoral defeats, starting with Jefferson\'s election in 1800, leading to the Republican Party\'s dominance in American politics. Although Marshall maintained Federalist interpretations, subsequent political events limited their application until the **Civil War (1861--1865)** prompted a new expansion of federal authority over states' rights. **Westward Expansion and Constitutional Transformations** The Republican Party\'s supremacy facilitated significant changes in American constitutional law, particularly through westward expansion. Under **Jefferson**, the United States acquired **French Louisiana**, effectively doubling its territory. This expansion transformed the nation into a "continental Empire of Liberty," as Jefferson described. The confrontation with the frontier reinforced the spirit of **independence and self-determination** among Americans, rooted in the **Colonial Age** and the **Revolutionary War**. This spirit cultivated a suspicion of government and formal institutions, while also fostering principles of radical democracy within pioneer communities: - Justice based on popular juries - Elected assemblies dominating executive branches - Recall methods for elected officials - Affirmation of general suffrage for white males These democratic principles first influenced the **Territorial Organic Acts**, modeled after the **Northwest Ordinance**, which structured Western territories. They later permeated the constitutions of new states joining the Union, reflecting a constitutional tradition of the frontier and the democratic individualism of American culture **Territorial organization of the State** Each type is characterized by its distribution of political power between central authorities and local entities. Here's a summary and analysis of each model presented in the text: **1. Unitary State** - **Definition and Historical Context**: The unitary state model emphasizes unity and indivisibility, tracing its roots back to the French Constitution of 1791. It arose as a reaction against the feudal system\'s political fragmentation. - **Characteristics**: - Strong centralization of legislative, executive, and judicial functions. - Limited or no autonomy for local entities; their relationship with central authorities is hierarchical. - **Modern Relevance**: While unitary states are less common in the Western world today, examples exist in Eastern European nations influenced by the Soviet Union. France\'s unitary structure persisted until recent decentralization efforts in the 2000s. **2. Federal State** - **Definition and Historical Context**: The federal state is characterized as a \"state composed of states,\" rejecting the traditional notion of state sovereignty. It acknowledges the statehood of its constituent entities. - **Characteristics**: - Division of competences among the federation and member states rather than a hierarchical relationship. - Retention of strategic powers by the federation to maintain overall stability. - **Examples**: The text references the United States as a constitutional example of federalism, highlighting its division of legislative, administrative, and judicial powers. **3. Regional State** - **Definition and Historical Context**: This model emerged from the Spanish Constitution of 1931 and was adopted in various forms by the Italian Constitution and Spain\'s 1978 Constitution. - **Characteristics**: - It serves as an intermediate model between unitary and federal states, balancing unity with regional autonomy. - Regions are granted legislative and administrative functions based on a clear division of competences, although they do not possess the same powers as federal states. - Regions cannot adopt constitutions, carry out judicial functions, or share in constitutional amendments, emphasizing a limited autonomy. **The Case of the United Kingdom** - **Devolution**: In the late 20th century, Scotland\'s calls for self-governance initiated a devolution process, leading to the Scotland Act (1998), which granted legislative powers to the Scottish Parliament. - **Asymmetric Territorial Organization**: The UK now exhibits a varied distribution of powers among its regions (Scotland, Wales, Northern Ireland), leading to an asymmetric model of territorial organization. - **Judicial Oversight**: The Supreme Court of the UK, established by the Constitutional Reform Act of 2005, adjudicates disputes regarding devolved powers. It lacks the authority to annul legislation, focusing instead on issuing declarations of incompatibility and ensuring that regional statutes align with Westminster\'s obligations. **Critical Observations** - **Weak Constitutional Review**: The Supreme Court\'s limited power leads to a unique model of constitutional review termed \"weak constitutional review.\" This model preserves parliamentary sovereignty while addressing constitutional issues through referrals rather than direct annulments. - **Political Constitutionalism**: This approach emphasizes the democratic principle, arguing against judicial supremacy and reinforcing Parliament\'s role in legislative matters. **[LESSON 6]** **Youngstown Sheet & Tube Co. v. Sawyer (1952)** The judgment in question references the framework of the U.S. Constitution but also allows for broader reflections. - **Background: The Steel Mill Strike Threat** In the early 1950s, there was a significant threat of a strike in the steel industry, which could have halted steel production entirely. This was particularly dangerous for the U.S. as it was directly involved in the Korean War, and steel was essential for war efforts. In response, the U.S. President issued an executive order to prevent the strike. - **Nature of the Executive Order** The executive order was not directed toward military personnel (such as soldiers or airmen) and was not issued in the President\'s capacity as Commander-in-Chief. Instead, the order was aimed at civilian entities involved in the steel industry. **Opinions of the Justices** While the Court\'s decision, delivered by Justice Black, was agreed upon by the majority, several justices wrote separate **concurrent opinions**. These opinions agreed with the judgment and approved the final decision but were based on different reasoning. In such cases, justices may find it useful to express their individual viewpoints, even though they reached the same conclusion as the Court. In **common law courts**, it is a general rule that all members of the court can attach separate opinions to the court's judgment. These may include not only **concurrent opinions**, which align with the court\'s decision, but also **dissenting opinions**, which disagree with the majority. While dissenting opinions have no legal effect, they are published alongside the court\'s judgment, reflecting the diversity of thought within the court. From a cultural perspective, dissenting opinions are significant because they showcase the court\'s internal dialectic process. Over time, a dissenting opinion can influence future decisions and may even shape the Court\'s reasoning, serving as a foundation for future rulings. In contrast, **civil law courts** typically do not allow members to express separate opinions. In these courts, members may have differing views, but the final decision reflects a single, unified opinion. It is generally impossible to know whether the court\'s opinion represents the majority view of its members, as revealing one\'s personal stance is considered a violation of both moral and legal rules. **Exceptions in Some Courts** There are some exceptions to this practice. For example, **German courts** allow dissenting opinions, and the same is true for international courts, such as the **Court of Justice** and the **European Court of Human Rights**. **Introduction to the Case** President Truman issued an executive order **to take possession** of steel mills during the early 1950s, a time when the U.S. was directly involved in the Korean War, and steel production was vital for national defense. The legality of this order was soon questioned by the steel mill owners, leading to a case that moved through the **district court** (the first judicial level), the **court of appeals**, and ultimately reached the **Supreme Court.** In some cases, legal issues of significant public importance, like this one, can bypass intermediate courts and go directly to the highest court. **Legal Challenge to the Executive Order** The mill owners contested both President Truman's executive order and the actions taken by the Secretary of Commerce under this order. The Supreme Court eventually ruled that the president's delegation of power to the Secretary of Commerce was **invalid**. As a result, the **executive order itself** was also deemed invalid. This case was significant as it was not a dispute between two private individuals, but rather between **private citizens and public authorities** over the legality of government actions. "The District Court was asked to declare the orders of the President and the Secretary invalid and to issue preliminary and permanent injunctions restraining their enforcement." **Separation of Powers and Judicial Review** This case raised the question of whether the judiciary, as one branch of government, had the authority **to judge the legality of actions taken by another branch**, the executive. While such judicial review of executive actions was accepted in U.S. courts by the 1950s, it could have been a matter of debate under the principle of separation of powers. The ability of courts to assess the legality of public authority actions was by then a **well-established practice** in the U.S., and it was considered a vital mechanism to uphold the rule of law. **Common Law vs. Civil Law Jurisdictions** In **common law** systems like the U.S. and the U.K., there is **typically one jurisdictional system**. This means that the same courts handle disputes involving criminal law, private law (civil cases), and administrative law (disputes about the actions of public authorities). These courts are empowered to adjudicate on a **wide range of cases**, including those involving the legality of executive actions. For instance, in the case of the steel mills, the owners went to the district courts to seek an injunction against the presidential and Secretary of Commerce's actions. These ordinary courts had the authority to issue rulings that directly affected the exercise of executive authority. However, in many **civil law systems**, a different approach is taken. In countries like France and Italy, disputes concerning the legality of actions taken by public authorities are dealt with by **specialized courts**, such as the \"Conseil d\'État\" (Council of State) in France or administrative tribunals in Italy. In these systems, administrative law cases are separated from civil law cases. The existence of specialized administrative courts in civil law countries is rooted in the idea that citizens must be **protected from unlawful actions** by executive authorities. These courts ensure that the exercise of public power adheres to legal boundaries. The need for such judicial oversight is considered even more important than resolving private contractual disputes. In civil law systems, courts review not only the **application of civil laws** but also the **legality of public actions** that represent the exercise of state sovereignty. **Opposing Principles in Public Law Controversies** There are two conflicting principles when addressing legal disputes involving the government: 1. **Guaranteeing Legal Accountability**: Just as parties in a private contract can go to an impartial judge to resolve their disputes, the same should apply to public law controversies. In such cases, an independent judicial body ensures that public authorities adhere to the law. This principle emphasizes impartiality in adjudicating disputes to guarantee that even the government's actions are subject to legal scrutiny. 2. **Preserving Administrative Autonomy**: However, there is also the risk of judicial bodies infringing upon the decision-making processes of administrative authorities. The principle of separation of powers mandates that certain decisions belong to administrative bodies, and judicial intervention should not interfere with their autonomy. This requires respecting the administrative body\'s competence while also ensuring their actions are lawful. **Rule of Law and Government Accountability** The foundation for allowing judicial review of executive actions lies in the principle of the **\"rule of law.\"** This philosophy insists that government officials must act according to the law, ensuring a **"government of laws, not of men"**. Public authority is bound by legal frameworks, meaning decisions made by those in power are **only binding if they respect the law**. The idea of tripartite government, or the separation of powers, is often seen as **co-equal branches**. However, in practice, some functions of government, such as the judicial branch, can be viewed as **superior in certain respects**---primarily because they ensure that executive powers operate within the bounds of the law. This notion reflects **John Locke's philosophy**, which emphasized the **primacy of legislative power**. The legislature issues general laws that guide the commonwealth, and the executive is tasked with executing these laws within the boundaries set by the legislature. **The Principle of Legality in Civil Law Systems** In civil law systems, the **principle of legality** is central. It ensures that executive actions remain subordinate to the law. Administrative activities, including those of public authorities, must respect the laws passed by the legislature. The judiciary's role in these systems is to interpret and apply the law to resolve controversies. The term **"jurisdiction"** comes from the Latin *jus dicere*, meaning the judge's task is to declare what the law says, emphasizing that judicial bodies work within the framework of legality to assess the actions of public authorities. Montesquieu famously said that the **\"judge is the mouthpiece of the law.\"** This suggests that judges merely apply the law without creative input, simply echoing its written content. However, in practice, judges do more than this; they interpret laws, make choices between competing interpretations, and thus participate in the decision-making process. While they do adhere to the law, there is an inevitable aspect of **jurisprudential creation** involved. Nevertheless, the core idea remains that judges act within the bounds of the law when adjudicating cases. **The Functional Role of the Legislative Power** In a tripartite system of government, **the legislative function is foundational** to the exercise of the other branches of government. The legislative branch creates the laws that guide the executive and judicial branches, thus conditioning their functions. The President\'s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. This is consistent with the fundamental principle of the **rule of law**: the U.S. President is not a monarch, but a leader bound by law, unlike an emperor of ancient Rome who exercised unchecked authority. The U.S. Constitution is built on the idea that any power exercised by the President must have its origin in a legal framework---either through **legislation enacted by Congress** or **constitutional provisions**. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure This eliminates the first alternative---statutory authorization---as a basis for the President's order. The government itself concedes that **two statutes** which might have granted such power under specific conditions were not applicable here, as those conditions were not met.*\ There are two statutes which do authorize the President to take both personal and real property under certain conditions. However, the Government admits that these conditions were not met and that the President\'s order was not rooted in either of the statutes.* With statutory authority ruled out, the only remaining possible source for the President's power is the **Constitution**. However, the **Constitution does not explicitly grant** the President the power to seize private property. The government\'s argument instead relies on a **systematic interpretation**, claiming that the President's authority to issue such an order is derived from the aggregation of several powers outlined in the Constitution, particularly in **Article II**. Particular reliance is placed on provisions in Article II which say that \"The executive Power shall be vested in a President...\"; that \"he shall take Care that the Laws be faithfully executed\"; and that he \"shall be Commander in Chief of the Army and Navy of the United States. The order cannot properly be sustained as an exercise of the President\'s. military power as Commander in Chief of the Armed Forces. While the President holds **supreme military authority**, this power is directed towards military operations, not the general public. The **Commander in Chief** role can only be exercised in the **theater of war**---where military conflict is actively taking place. In this case, although the U.S. was engaged in the Korean War, the **seizure of steel mills** on U.S. territory falls outside the scope of this military authority *Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President\'s power to see that the laws are faithfully eexecuted refutes the idea that he is to be a lawmaker*. This reinforces the principle that lawmaking is the sole responsibility of Congress, and the President's role is limited to executing those laws The Constitution limits his functions in the lawmaking \"process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And\' the Constitution is neither silent nor equivocal about; who shall make laws which the President is to execute:\',\' The first section of the first article says that \"All legislative Powers herein granted shall be vested in a Congress of the United States....\" The principle of **separation of powers** does not imply a rigid division of functions. Instead, it is intertwined with the concept of **checks and balances**. While the President is vested with executive power, he still plays a role in the legislative process. The **veto power** is a key example of this: after both chambers of Congress approve a bill, it must be presented to the President for approval. But the President can **refuse to sign** it if he disagrees with its content. When the President vetoes a law, it is sent back to Congress for reconsideration. This **veto power** is not absolute. Congress can **override the President\'s veto** if both chambers approve the law again with a **two-thirds majority** in each. If this occurs, the President must sign the law, and it will come into effect despite his initial refusal. In most cases, a presidential veto acts as a strong **block on the passage of legislation**, as achieving a two-thirds majority in both chambers of Congress can be challenging. However, the possibility of a veto often leads to **negotiation** and dialogue between the President and the majority in Congress. This dynamic allows for a **balance of power**, where both branches have the opportunity to influence the final version of a law The President\'s order does not direct that a congressional policy be executed in a manner prescribed by Congress-it directs that a presidential policy be executed in a manner prescribed by the President. As philosopher **John Locke** suggested, the creation and execution of laws **reflect the will of the people** through their elected representatives. The President's role is to **execute** these laws, not to create them. The **policies** that the President must execute are those decided by Congress, not by the President himself. In the case under discussion, the President issued an order that was not based on any law enacted by Congress, making it **unconstitutional**. The **power to authorize the taking of private property for public use**, for example, lies with Congress, not the President. Therefore, the President's order was **without legal foundation** and was rightly declared **null and void** by the courts. The **Supreme Court affirmed** the decision of the district court, reinforcing the principle that the President's authority must be rooted in **law enacted by Congress**. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property, for public use. The **President's order**, therefore, did not reflect the execution of **Congressional policy** and was deemed unconstitutional. The courts affirmed the decision, declaring the President's actions **null and void**, as the order had no basis in law. **Marbury v. Madison: A Parallel Example** This case draws parallels to **Marbury v. Madison**, a landmark decision where the Supreme Court asserted its authority to review executive actions. In **Marbury**, the Court ruled on the powers and limitations of the **executive branch**, specifically addressing the role of the **Secretary of State**, a key collaborator of the President. This case highlights the importance of judicial review in maintaining the **balance of power** and ensuring that all branches of government operate within the confines of the Constitution. **The Transformation of the Separation of Powers in the Twentieth Century** The **twentieth century** marked a significant turning point in the **Western World** regarding the traditional understanding of the **separation of powers**. Notably, the **executive branch** experienced a gradual expansion, encroaching on roles and responsibilities that had historically belonged to the **legislative branch**. This shift was largely driven by the increasing complexity of social and economic issues, which necessitated enhanced public regulation and greater state involvement in increasingly technical matters. This transformation rendered the traditional model of legislative monopoly obsolete. The expanded role of the executive branch involved two primary processes: 1. **Enhanced Legislative Involvement**: In countries with **parliamentary systems**, such as many European nations, the cabinet\'s ability to introduce legislative proposals to parliament was already an established practice. Over time, this role was significantly enhanced, positioning the cabinet as the principal driver of parliamentary legislative activities (Burdeau 1932). Conversely, in **presidential systems** like that of the United States, this shift required a reevaluation of constitutional rules designed to uphold a strict separation of powers. This often involved the circumvention of these rules through cooperation between the presidency and party members acting in alignment with the President\'s agenda (Caravale 2004). 2. **Provision of Regulatory Instruments**: The executive branch\'s capacity to adopt regulatory instruments represented a more radical shift in the classical conception of separation of powers. Within the framework of **liberal constitutionalism**, the executive was not entirely barred from adopting regulatory measures---known by various names, such as ordinanc