Law
Sources of law - 2nd lesson
Descriptive law:
· A law that explains how a certain phenomenon occurs.
· Say how things are, in a way like that which you can find in natural science or economics.
Prescriptive law:
· Rules governing how people ought to behave: it does not say what it is, but what is ought to be.
We are subjects to systems of laws (legal orders) at the same time:
· International organization
· State
· Region or county
· City
· Private organization
A source of law is any authority who can create a new law. Every law has its own source.
International org. → treaties.
States → legeslation, case law.
Regions and municipalties → local legislation.
Companies, associations → contracts
Public vs Private Law
Public law:
· Relationships between authorities and individuals (state, EU, regions etc.) regulates how they interact.
· Public subjects can exercise their authority on the private subjects.
· The relationship is vertical, they are not on the same level. The authorities are stronger than you.
· Constitutional law.
· Administration law.
· Criminal law.
· Tax law.
· Civil procedure.
· Criminal procedure.
Private law:
· Horizontal relationship in between equals.
· Examples: family, property, companies.
· Law exercised in between people, associates or companies.
· The state is not directly involved.
Common Law vs Civil Law
· Most countries fall under: common (UK, US, India, Australia and other anglo-saxon countries or former colonies) or Civil (EU, Latin America, African and Asian states).
Common:
STARE DECISIS
· Main source of law is cause law. Judges’ opinions are crucial, recall past cases.
Civil:
· Main source of laws is written legislation (codes, statues). Judges are bound to the law and can ignore previous cases and judgements.
In common law, judges can change laws depending on specific cases.
In civil law, the law is always the same and cannot be changed, only interpreted.
3/10 2024 - 3rd lesson
The state is a political organization, historically most states started appearing during the Middle Ages, when the monarchies of England, Spain, France etc. In the Middle Ages, we had the empire and the church. The emperor was able to delegate power and authorities to his dukes, barons, priests etc. Every European region had its own monarch, and their own tax system, army etc. Most Europeans were subjects of their king and their pope.
At the end of the Middle Ages, certain countries stopped putting the church in the center of power.
States are characterized by:
1. People (citizens of the state): from a legal perspective, they are citizens of a country. You usually get your citizenship by being born from a couple with that same citizenship. If they have different citizenships, you may have dual citizenship or a completely different one (sometimes you can also get a citizenship if your grandparents were born in that country). You can also get citizenship by marrying a citizen. It is also possible to get citizenship solely because you’re born in the country. Every country has their own way of obtaining citizenship. The last way of getting a citizenship is naturalization, which is when you live in a country for several years (you live and work somewhere under a visa) and are a legal resident, you do a language test and a cultural test. Whatever way in which you became a citizen – all citizens are equal.
2. Territory: you need land to be a country (also sea and rivers count, around 12 km from the coast counts as a country’s territory).
3. Sovereignty: the supreme authority of the state: the state does not recognize any superior authority in its territory and over its own people. Bavaria for example, is decided over by Germany. There is a difference between federated states and a state, because while California is a state that used to be independent, but it is now decided over by the United States. France is decided by over the EU, but the EU is not a state – for European states the situation is therefore more complicated. Sovereignty is apparent in some cases, while in others it is not. A puppet state, for example, is a country which is under the control of another country. An example of a puppet state is Cyprus, where the northern part is controlled by Turkey since 1933 when they invaded a part of the island. They are not generally considered a state.
Failed state: Somalia is the best example; it is a state where there is no functioning central authority. No one can provide basic services such as justice, protection over the border etc. The situation is very chaotic. They lack sovereignty.
In states, authority is centralized. The state can command everyone within the state, and they have full power over their borders. Only the state can use force. If they are controlled by organized crime or terrorists, they are not allowed to use force.
The authority of the state can be partially decentralized, in federal states the power is shared between the member state level and
In case of emergency, the state can take back all the power to themselves.
The constitution is the fundamental law of a country, the most important one. They fill three basic functions; they explain how authority is exercised, they discipline the relationship between the public power and the individual, and explain the community’s values (equality, freedom). The constitution is a recent concept and was a way to break off from absolutism (all the power belonged to the king and a constitution wasn’t needed). Most are written, but there are three that don’t have a written one, for example the UK.
Three main legal powers by which the state exercises its sovereignty in the territory and on the population:
1. Legislative power: about law making, the parliament (in democratic countries) make laws.
2. Executive power: the government oversees executing the law (around 20-30 people) every minister oversees a certain thing. The ministers rely on the public administration (police, army, teachers, doctors), who work underneath the ministers.
3. Judicial power: they apply the law in a specific case and solve a dispute. They channel the law to solve a specific problem. Usually, people are chosen to do this based on their expertise. In some countries (like the US), instead, judges are elected.
The parliaments can have either one (Sweden, Hungary) or two (Italy, Germany) chambers. The point of having two chambers is to have more representation of different interests. In the US, for example, every state has two senators, and then there is the house of representatives that represent the people, however every state doesn’t have the same number of representatives. They have the same number of senators but not the same number of representatives, that is because all states are equal while since there are more people in for example California than there are in Alaska, it makes sense that that representatives are fewer for Alaska to correctly represent the people.
With two chambers, one is used to represent the authority while the other is used to represent the people.
Separation of powers
To avoid despotism, the three powers must be separated, otherwise the person in charge will become corrupted. In one of the powers start abusing their power, the other two can step in. The power must balance each other out.
In the parliamentarian system (most EU countries) the parliament can dismiss the government if they believe they’re not doing a good job (motion of non-confidence).
The congress cannot fire the president in the United States, because the authority of the president comes directly from the people, as they are the ones who elected him/her and the congress. The parliament (the congress) can however put pressure on the president by impeaching the president and can only be done when the president has been accused of a crime, not only if they believe him to be doing a bad job. The impeachment cannot go through if both parties do not agree enough.
The president can put pressure on the parliament by VETO-ing laws. In the parliamentarian system in Europe, the government can put pressure on the parliament if the proposal of a law is very important, the government can blackmail the parliament by saying “if you do not pass this law that is so important for me, I resign and then the government will not work and if you cannot form a new government, and you will have to run again for your seats”.
The rule of law: The public authority is not allowed to do whatever they want. The constitution is a filter for power in order to avoid discrimination and despotism, etc.
The state legal order
Every community and every state have its own legal order, which is a collection of law that apply to a community. Australia has its own, Brazil has its own, etc. Every legal order can be represented in a pyramid. There are laws that are more important and stronger than others.
The constitution is on the top, then there are the laws of the parliaments and under that we may have other norms/rules that may be adopted by the government. For example, it’s illegal to sell drugs in Italy, and what is a drug is decided by the regulations that are decided by experts in the area.
In case of emergency, the government can pass emergency legislation (decree). For example, with covid, it was the Italian government that decided on the lockdown, not the parliament. However, the parliament needs to approve of it within two months, and if they don’t, the law is automatically not valid.
8/10 2024 - 4th lesson
Every community requires law to be organized and have their own legal system which can be represented as a pyramid; constitution, laws of parliament, executive regulations of the government.
The problem is that the legal system is complicated and hard to interpret. One fundemantal thing is to learn how to interpret them. It is about adapting and understanding a law to reality. The great thing about laws is that they are general and abstact, they apply to everyone but the problem is that the law also deals with simplifications, representations, generalizations, then yoy have judges, lawyers and people who have to apply the rules in the real world. This is where you need to interpret it. This process is called interpretation of the law, this means understanding and adapting the law to a specific case.
An example from the pandemic, at a certain point in Italy it was compulsory to wear the mask in public. If you didn’t respect this, you would face sanctions. But what does it mean to wear a mask? Many people were wearing the mask in a “wrong” way. What does wearing mean?
Imagine that we have many speed limits, and if you drive too fast you might face sanctions, lose your car or your license, but what happens if you were driving fast in an emergency?
In these situations, you need to use the rules of interpretation:
· Literal interpretation (focus on each word, analyze and understand the literal meaning word by word, for example, when wearing a mask is crucial, you need to specify how you wear a mask and which mask you should wear)
· Teleogical interpretation (you need to look for the aim of the law, where is the law aiming? What is the purpose? The meaning depends on the purpose the law wants to pursue. As wearing a mask was meant to contain the disease, the people who weren’t wearing it correctly would’ve helped spread the disease, therefore they wouldn’t respect the law)
· Systematic interpretation (you understand the meaning of the law, looking at the context. The law is never alone, and it should be read in connection with all the other relevant legal rules. You should understand the law considering all the other applicable rules, for example during the pandemic many people complained that lockdown was a harsh measure and that it limited the freedom of movement. The constitution gives me the right to freely move around the country, but with this law I can’t, and it therefore is unconstitutional. Which is technically true, however, the freedom of movement should be read in a systematic way. It’s true that you can move how you want, but the state should also keep the public health and therefore makes the argument about the constitution void.
Contrasts between laws
Laws can contradict each other over time, since there are so many laws it’s easy for this to happen. This makes a conflict arise, and to solve this conflict, it is necessary to know:
1. What source the concerned laws belong to (who passed it?)
2. When the laws concerned was adopted
3. The content of the laws (the meaning)
Whenever you have two laws that tell you opposite things, you can solve it through these three steps.
Chronologic criterion
This applies is when you have two laws having the same source. For example, if we have two laws where the parliament is telling us that smoking weed is a crime, however next a law is passed by the parliament saying that selling weed isn’t illegal. What law will prevail? The older or the newer law? The newer law is the answer, since it’s chronologically newer and on the same level (also passed by the parliament), the new law can prevail. The laws need to be updated to make sense with people’s needs.
Abrogation is when you are abolishing a law and replace it with a newer law. Doesn’t cancel the effects of the older law.
Hierarchical criterion
A hierarchy is when something or someone is above/more important than someone else. If there is a conflict between the constitution and the parliament. If the parliament is passing a law saying that certain associations shall be banned, for example, associations with more than 100 people. Will this law stand, or will it have problems? Most constitutions will protect the freedom of association, while the parliament is now saying that certain associations are banned. Which one will prevail? The constitution, since it’s above all other laws.
Annulment is when a lower law is deleted due to its conflict with a superior law. All the effects the law has made will also be cancelled. The difference between this and abrogation is that they have to do with different criterion. With abrogation, newer law will prevail over older law, but before this the older law was in action, and all the effects it had will stay. With Annulment, though, the new law was raised with a defect from the start, so it will have no consequences of any kind, and if they ever had any, they will be cancelled.
The constitutional court analyze if the laws are against the constitution or not.
Specialty criterion
Special laws will prevail on general laws. For example, theft and robbery. What’s the difference? Robbery is theft with the use of force. These two crimes are punished differently, usually robbery is considered worse that just theft and is punished harsher. While committing a robbery, you are also always committing theft, though. If your behavior is more specific and we have a law that is more specific, you go with the more specific law and not the general one.
Legal status of individuals
Difference between rights, freedoms, obligations
Individuals, depending on who they are, they will enjoy a different legal status. For example, being a citizen is different than being a student. Individuals are also associations and organizations, not just human people. Legal subjects have several rights and freedoms under public law.
What’s the difference between right and freedoms?
A right is a legal power (or claim) to make sure that something is done in your favor. If you have a right, someone else will have a duty. You have the legal right to ask something of someone else. For example, health and education are rights, and the state is obligated to give them to you.
A freedom is the ability to do something without anyone else interfering, you can enjoy a certain activity without being limited by anyone else. Freedom of speech or religion for example.
A duty is the obligation to carry out a certain activity, for example the obligation to go to school, pay taxes and respect the law.
Rights, freedoms and duties can be categorized depending on their features. There are certain rights that we define as human rights, and others we define as citizen rights. Some rights are for all people, some are only for citizens. For example, the right to vote in a country is only for citizens.
If you are an illegal immigrant and you go to the hospital, will you receive healthcare? If there is an emergency, you will still receive healthcare, but to receive full access to the healthcare you need to be fully registered with the healthcare (normally granted to citizens) and you need to be a resident. People with the residency and a visa can receive full access to the healthcare even if you’re not a citizen. Basic healthcare is a human right (generally), especially in the EU.
Freedom of movement, right to vote, diplomatic assistance = citizen rights.
Human rights are many, with different types of human rights. We experience different waves of human rights; the first one was during the big revolutions (French, industrial, American) and they had to do with political and civil rights (freedom of speech, organization, vote, etc.) and then it started spreading around the world. After WW2 there was the second wave, that had to do with social rights (healthcare, school, social care etc.) Recently, we are experiencing a new wave of human rights, which have to do with current challenges of our time, such as the process of technological and social advancements and climate change (right to live in a healthy environment, access the internet, protect your private data).
Human rights can be carried at the same time by different legal orders. These orders will all protect human rights, but they have different standards. In the EU we have the chart of rights, and internationally we have treaties protecting them. If you don’t receive human rights in one order, you can rely on another one.
Certain rights can be exercised together (collective rights), others can be individual. Examples of individual rights are the right to privacy, the right to change gender, the right to life and human dignity (the value and worth of every human being. Any time you treat him/her as an object, you are disrespecting their dignity. Examples of this is torture, bad conditions in prison or migrants in refugee camps).
Collective rights can be minority rights (you have the right to preserve your identity as a minority), freedom of association and assembly (the difference between the two is that assemblies are temporary, while associations are meant to pursue a goal in a structured way).
The different between the absolute and relative rights
Absolute rights are unconditional and cannot be limited, under no circumstances (life, human dignity, physical integrity, family). The state is not allowed to reduce your right to life (in EU absolutely not) but for example in the US and Belarus the death penalty is still legal. If there is an emergency, the police may use guns and a threatening person might die, but a state will never directly be responsible for ending your life. The state is also not allowed to torture, or split families.
Relative rights are important and are protected under the constitution but can be limited and balanced to make room for something more important (property, expression, association). Most laws are relative. During the pandemic, the right of movement was limited to protect the public health. The freedom of speech is also relative (hate speech, slander, disclosing private information), the right to medical care can also be relative; for example, during the pandemic, the limited medicine was given to the groups who would face the gravest consequences of getting COVID first, while the healthy young people were put further down in the list.
10/10 2024 - 5th lesson
Balancing test
How you balance relative rights:
1. Who is allowed to limit people’s freedoms/rights? A legislator.
2. Why would you limit the freedom/right? Public interest (safety, health) or different freedoms/rights.
3. How do you limit freedoms/rights? Principle of proportionality and principle necessity. We can only limit things in a proportional way, to preserve the public safety. You cannot abolish freedoms, just squeeze it to make space for the public interest (proportionality). When there is no more risk, the limitation must end (necessity).
Duties
We have a short list of duties, and many more freedoms.
Most common duties:
· Respect the law
· Pay taxes
· Do your military service (if active)
· Vote
If you don’t vote, in some countries you may have some consequences if absences are put into a record. Maybe you can’t access certain functions if you choose to not vote enough times. You can also abstain from voting; it is a way to express your intention. Voting is not a duty in the way that you will always experience a sanction for it, but it’s a civic duty in the way that you have responsibility to affect your country.
Democracy
The democratic principle = the power belongs to the people. The government of the people, by the people, for the people (Gettysburg address).
Democracy needs …
· Input legitimacy, which is that the people choose the rulers (elections). The people must be the source of legitimations.
· Output legitimacy, which is when the people are allowed to judge if the government did a good enough job or not. Output and input legitimacy complete each other. If a government was elected by the people, they still have input legitimacy, but if they lose the approval of the people, the output legitimacy takes over and makes the first legitimacy “fades away”. The government should then be replaced by a more trusted one. You must have both types of legitimacy.
· Whoever is exercising their public power, they are doing it for the people and representing them. They should put the people’s interest first.
Direct vs representative democracy
· In a direct democracy all citizens meet and take decisions by voting directly.
· In a representative democracy citizens elect representatives who take decisions on their behalf.
· Most democratic states have representative democracy, even if there are some applications of direct democracy. An example of this is referenda (referendum), which is when people are asked what they think about something, to which the answer can only be yes or no (Brexit). The most common way people call for a referendum, the most common one is when 500.000 people sign a petition to have a one. Another example of a country where it is used, is Switzerland. But in Germany, for example, the referenda are not included in the constitution, and therefore it is not allowed to be organized, because of their totalitarian history.
Referenda and direct democracy are rarely used, since people are easily swayed (or manipulated) and in many cases, political issues are rarely black and white issues that you can simply answer with a yes or no.
Referendum in Italy next year about getting citizenship if you’re born in Italy to foreign parents, and for extended power for regions.
Representative democracy generally works better, since it’s faster and the decisions often require a lot of time and people with expertise to complete them. Many people (a parliament) need to compromise and decide the best decision.
The biggest fans of direct democracy are dictators. They usually get rid of parliaments and instead invoke a direct relationship between the leader and the people. The parliament is generally painted as corrupt and old politicians that no longer represent the values of the people.
We have different types of democracy depending on how power is shared
Vertical power
· Parliamentary democracy – the first parliamentary democracy in history was the UK (now Germany, Italy, Spain, Portugal, Japan). The parliament elects the government every 4-5 years with a motion of confidence and get them out with a motion of non-confidence. They have the head of government (leader of the government/prime minister) and head of state (the monarch/the president of the republic). Sometimes, the head of state has minor/no powers and sometimes they have bigger ones (like in Italy where the president can deem certain laws unconstitutional) and are usually elected by the parliament.
· Presidential democracy – the first presidential democracy in history was the US (now Brazil, Argentina, Nigeria, South Africa). The people elect the government and the president, and there is no difference between head of state and head of government, and the president chooses the government. The parliament (congress) cannot dismiss the president (unless he has committed a crime).
· Semi-presidential democracy – the first semi-presidential democracy in history was France. The people elect both the president (the head of state) and the parliament. Then president and the parliament choose the government together, which is composed by the head of government + the ministers. The government needs the support of the president and most of the parliament in order to rule.
15/10 2024 - 6th lesson
To have a democracy, we need three pillars:
1. The right to vote, with universal suffrage (women can also vote). The vote is free and secret, with periodical elections of (most) public offices: citizens vote for the parliament every X years. We don’t hold elections every year to give the current government to establish stability and do “a good or a bad job”.
2. The rule of law. There are countries who are backsliding as democracies because they don’t have the rule of law. Just organizing elections is not enough. The rule of law means that public powers should be exercised in accordance with the law, particularly the constitution. This will act as a filter to avoid despotism and protects minorities of any kind.
3. Political and civil rights. Freedom of press, assembly etc. have to do with being powerful together and being able to put pressure on the government that’s doing a bad job.
Pluralism
From a technical point of view, our democracies (France, Japan, South Africa, Italy) are called pluralistic democracy. Pluralism means diversity, which is a good thing and something we want to preserve, as it makes us free and encourages disagreements and differences. The opposite of a pluralistic democracy is totalitarianism (which was coined by German Anna _?), where there is no distinction between the public and the private sphere and the state can control everything in your life.
The problem with pluralism and celebrating diversity, is that diversity can also cause problems. It can lead to tensions, since people have many different ideas and ideals (religious clashes, etc.). We make this pluralism by embracing tolerance and being tolerant. This has to do with accepting that we can have different ideas and that we respect each other.
“I wholly disapprove of what you say, but I will defend to the death your right to say it” Voltaire 1759.
Tolerance can have side-effects. If we are tolerant even with intolerant people, they may abuse this and become stronger and stronger and then take over. Mussolini and Hitler, for example, did take power in their countries through fair elections.
“We should be tolerant, except for those who are not tolerant”
Militant democracy is a democracy who can defend itself. In continental Europe, we have certain laws to stop certain ideas from spreading. In certain countries, it is illegal to deny the holocaust in public, or to openly support fascism or Nazism. Hate speech is criminalized. The state can intervene directly to sanction those who exercise intolerant ideas.
The experience in continental Europe, is very different from the experiences in the UK or the US. There, they could never have those types of law, since their freedom of speech is so important to them. They even have groups openly preaching white supremacy in the US. In a way they need to fight extremism and totalitarian ideas, but the best way (according to them) is to let people’s ideas face each other, and since we trust the people, they will put the margin for the most fanatic ideas. If the state intervenes, you don’t really let the people think and explore their own ideas.
The majority rule
To work, democracy needs to function and make decisions. Otherwise, democracy will die since the people lose the trust for their government. Decisions are taken by the majority. You cannot make decisions by unanimity, which is inefficient, since you’re giving everyone the opportunity to stop the decision (veto-right). This would make it impossible to come to an agreement.
The majority has the right and the duty to rule, but not in a way that destroys the minority. When it comes to political minority, they can change position. If you are the majority and choose to destroy the minority, democracy dies. That’s why the constitution preserves minority rights.
· Unanimity: Everyone votes the same way; all votes agree.
· Simple/Relative Majority: More than half of the votes cast are in favor, but not necessarily a majority of all members.
· Absolute Majority: More than half of all members, not just those who voted, must vote in favor.
(chatgpt)