Law
System of rules which a particular community recognizes as regulating the actions of its members. Consequence of violating is imposition of penalties
Purposes of legal norms
- Allocating g/s
- Prohibiting certain harmful behaviors to society
- Creating/attributing public powers among different bodies
Norm
Something that is typical/expected. Can be social, moral, religious or legal.
Relationships between members of same social group are regulated by these
Characteristics of legal norms
- EFFECTIVENESS: Ability of legal system to impose binding rules (ability of authorities to make ppl follow rules)
- GENERALITY: applicable to indefinite number of individuals
- ABSTRACTNESS: applicable to indefinite number of situations
Additionally:
- Come from competent authority
- Nomen Iuris (contain specific legal terms and phrases that give legal clarity)
- Legislative procedures were followed in creation of them
State
Legal system that has sovereign (total) power over a territory, where the members are subject to the system and bound together by a single political power.
(Constantino Mortati)
Characterizing elements of the state
- Territory
- Sovereignty
- People
Characterizing elements of the state - in relation to the internet
- Territory: no physical territory for the internet
- Sovereignty: Internet is everywhere and nowhere - who has jurisdiction? governance of key issues is in hand of int agencies, no governmental interferences?
- People: citizenship comes from ius sanguinis/solis [right of blood(parents) and right of soil(born there)] - new digital citizenship? who is subject to jurisdfiction?
Forms of state (definition)
Set of values behind the relationship between the state, which can legitimately exercise power, and its citizens
Forms of state (4 examples)
- FEUDAL: feudal lord owned land, based on contracts, main purpose = protection of land
- ABSOLUTE: crown had sovereign power, main purpose =money
- LIBERAL: separation between state/society, protection of rights and freedoms, popular sovereignty, representative govt
- DEMOCRATIC/PLURALISTIC: multi-class society, mass parties, 1st and 2nd generation (social and economic) rights
Forms of government
- Parliamentary executive
- Presidential executive
- Semi-presidential executive
- Directorial executive
Parliamentary executive
- Electoral body elects PARLIAMENT
- Parliament elects head of state
- Parliament grants and revokes confidence
Head of state-govt:
- separate, not popularly elected, does not serve fixed term
Presidential executive
- Electoral body elects president and CONGRESS
- President and congress –> no confidence relationship
- President creates cabinet
Head of state-govt:
- combined into PRESIDENT, who is popularly elected and serves fixed term
Semi - Presidential executive
- Electoral body elects president and PARLIAMENT
- President and parliament –> no confidence relationship
- President appoints government
- Parliament grants and revokes confidence to government
Head of state-govt
- separate
HOS = popularly elected and serves fixed term
Acts
Voluntarily adopted laws that have legal power bc they meet 3 conditions:
1. Existence: made by the right people (with power)
2. Validity: made in the right way, following correct procedures
3. Efficacy: has power to create the effects it intends to have
Facts
Produce legal effects bc law recognizes they can do so - not bc intentionally produced. Combine 2 elements:
- Objective: behaviour that has remained uncharged over passage of time
- Subjective: certain social behaviour is considered to be legally binding
Legal hierarchy
- Constitution
- Primary laws
- Secondary laws
Constitution
“Law of laws” - top legal source.
Provides:
1. Frame of govt (relations among institutional bodies, and between inst bodies and citizens)
2. Bill of rights (fundamental rights of citizens)
Codified consitution
-One single doc
- Long - contains the frame of government and the bill of rights
- Flexible - formally equal to ordinary laws, therefore the constitution may be modified
with an ordinary law
- Voted - drafted and voted by a constituent assembly/people
Uncodified consitution
- Short - containing only the frame of the government
- Rigid - at the top of the hierarchy of legal sources therefore modifications require a
social amendment procedure - Rigid means:
i) It requires a double vote of each Chamber of Parliament;
ii) There must be “an interval between the votes of not less than 3 months”;
iii) It “shall be approved by a qualified majority (which is greater than the majority of the government) of the members of each Chamber in the 2nd voting”;
iv) There must be the possibility of recourse to the people through a popular referendum. - Octroyée - granted by a monarch
Legislative vs Law decrees
- LEGISLATIVE decrees - Law that grants to government the power to issue decrees within specified limits - such decrees have the same force as the law
- LAW decrees - situation of emergency and urgency - government can issue decrees w/ same rank as law - within 60 days the parliament shall convert into law - otherwise cease to be effective
Conflicts of law
- Between norms that are placed by source of the same rank - Lex posterior derogate priori
- Between norms that are placed by sources of different ranks - lex superior derogate inferiori
- Between norms that regulate the same matter or subject - lex specialis derogate general + competence
