Lecture 5

Question 1

Judges in the system of Civil Law

Answer 1

Judges must only apply the acts of the lawmakers through interpretation of the already existent statutory law. These acts are not binding but rather exercise a persuasive action
BINDING ARE: judgements of the Constitutional Courts and those of the Court of Justice and of the European Court of Human Rights
JUDGES’ MAIN ROLE= interpreting an already existent legal system

Question 2

System of “Common Law”

Answer 2

Judges must take into account the PRECEDENTS established by judges in previous similar cases along with the acts of the lawmakers (Constitution, statutory law, regulations)
JUDGEMENTS HAVE A BINDING VALUE; LEGAL DOCTRINE DOES NOT HAVE A SIGNIFICANT ROLE FOR THE JUDICIARY= NOT BINDING

Question 3

System of “Islamic Law”

Answer 3

Sources of law= Quran and Sunna (“Sharia”), combined with previous commentaries and legal responses (=”fawta”) that have been produced by the religious authorities= Ulema
Alongside that for judgements it is needed to take the acts of the lawmakers into account too
Religious law= intended as state law (hence different from Canon and Jewish Law)

Question 4

System of “Chinese Law”

Answer 4

Mostly a civil-law system adapted accordingly to the socialist doctrine and traditional rules (“Fa/li”) coming from Confucianism
Judges cannot create laws and must apply the interpretation provided by the Communist Party

Question 5

System of “Customary Law”

Answer 5

Mostly a common-law system that but recognizes a significant role which is played by the customary law spontaneously created by groups of people.

Question 6

What is statutory law (“diritto legislativo”)
What is regulations

Answer 6

In general= law created by acts of the Parliament
Other definition= rules created by a legislative body
Regulations= result of the legislator but they have not the same value as the acts approved by the Parliament

Question 7

Rights toward the State

Answer 7

• liberty (“negative”): coming from an abstention of the State to safeguard one’s personal liberty
• political (“participative”): capability of taking part into the public and political life of the state
• social (“positive”): coming from an intervention of the State (ex. education, health)
• economic (ex. property)

Question 8

Rights with respect to private natural and juristic persons

Answer 8

• absolute (“erga omnes”): in the sense of sacred with respect to everything (ex. life)
• relative (“inter-partes”): specifically between two persons, either natural or juristic, regarding a specific subject (bank loan)

Question 9

Subject of rights/ right holder and categories of rights (not intended as civil, political,…)

Answer 9

They are worth for both natural or juristic persons
- individual= singular natural/ juristic person
- collective= right exercisable only with others (ex. of aggregation)
- communitarian= right recognized only to a community or group of people

Question 10

Content of rights

Answer 10

• personal (non pecuniary: ex. life)= moral rights
• economic (pecuniary)
  1. in rem = possessions/ valuable goods
  2. in personam= valuable performances

Question 11

Level of recognition of rights

Answer 11

= level at which the right is recognized and protected
- international human rights
- constitutional human rights
- legislative rights: recognized only by statutory law (ex. abortion), not the Constitution
- customary rights

Question 12

Guarantees

Answer 12

• EUCFR/ ECHR/ International limits to national powers
• constitutional limits to the legislative, executive and judiciary powers
• statutory limits to executive and judiciary powers + reserve of judicial authority impedes interferences by the executive

Question 13

Duties towards the State

Answer 13

• solidarity (ex. social activities)
• political (ex. military service, vote)
• economic (ex. taxes)

Question 14

Duties towards private natural and juristic persons

Answer 14

• public
• obligations

Question 15

Holder of duties

Answer 15

• individuals
• state (ex. the State must protect public helath and assure education)
• government authorities (public officials)

Question 16

Content of duties

Answer 16

• personal
• economic (ex. paying taxes or interests)

Question 17

Level of imposition of duties

Answer 17

• international human duties
• EUCFR duties
• constitutional duties
• legislative duties
• customary duties

Question 18

Enforcement of duties

Answer 18

• by administrative authorities directly or by private application
• by courts upon public prosecution or by private lawsuit

Question 19

Responsabilities (“munera”)

Answer 19

• by virtue of law (ex parental)– parents have the power and the obligation to educate their children
• by virtue of judicial appointment (ex. guardianship)