PUBLIC LAW

(I)

(A.Y. 2018-2019)

Prof. ph.d. Daniele Senzani

e-mail: daniele.senzani2@unibo.it
 ..a short overview of the course
Introduction
The contemporary Public Law.
Foundation and General Principles

• The Constitutive elements of a legal system.

• Law and legal order. Binding and not-binding rules. Enforcement. Sanctions and penalties.
• The rule of law principle (1).

• Civil Law and Common Law.

• Public law and Private Law.

• State as legal system.

• The constitutive elements of the State (community, territory, sovereignty).
• State and fundamental powers. Principles and guaranties.
• Form of State. Form of Government. Type of State.

• National and supra-national legal systems. The State into the international framework. International law
and EU law.

• Subjects. Subjective legal positions. Subjective Right and Legitimate Interest. Legitimate expectation.
Reliance.
 Sources of Law

• Formal and informal sources of law. The ongoing changing in the legal order: soft law and informal
measures. The private regulation.
• Sources of law. Definitions. Sources of production and sources on the production. Notice and legal
cognizance.
• Source of production: act sources; fact sources; direct and indirect sources; intra-ordinem and extra-
ordinem sources.

• Sorting the sources of law: chronological principle; hierarchical principle. Competence and specialization
principles.

• Interpreting the Law. Principles and methodologies. Antinomies.

• Principle of the law-making process. Rule of law and due process of law (2).

• The Constitution.
• Constitutive power.
• Other constitutional sources. Laws amending the Constitution; other constitutional acts. Constitutional
conventions and const. customaries.
 (… Sources of Law)

• International Sources of Law. Treaties, Conventions and international customaries.

• The European Convention of Human Rights (Rome, 1950).

• EU sources of law.
• The Treaty on European Union - The Treaty on the Functioning of the European Union (TEU-TFEU).
• The Charter of Fundamental Rights of the European Union (2009).
• Derived EU sources: Regulations; Directives; Decisions.
• Other (formally not binding) measures: opinions and advisories; recommendations; guide-lines; etc.

• Domestic primary law.

• Law of the Parliament. Statute Law. Statutory limits.
• The law-making process (initiative-deliberative-integrative of effectiveness).

• Acts having force of law (Legislative Decrees. Law Decrees).

• Abrogative referendum.
• Standing Order of Constitutional Bodies.

• Regional Laws.
• Secondary sources.
• Executive Regulations. The rule-making procedure of the secondary Sources.
• Limits (to the regulatory power) by Statutory Reserve.

• Regional and local authorities’ regulations.

• Other regulatory measures issued by administrative authorities and agencies.

• Fact sources. Customaries.

• Soft Law.
• Substantive not formally binding rules.
 Form of State and Form of Government

• Classifications based on the relationship “sovereignty - people” (Absolute State; Liberal State; Socialist
State; Constitutional State; Representative Democracy) and upon the relationship “sovereignty - territory”
(Unitary State, Regional State, Federal State).
• Classifications based on the “allocation of fundamental powers” (Constitutional monarchy, Presidential
system, Parliamentary system, Semi-presidential system; etc.).

Constitutional Bodies – Organization of fundamental powers

• The Electoral body. Constitutional principles. Electoral Systems. Institutions of direct democracy.

• The Parliament. The legislative power. Representative principle and legislative power.
• Bicameral and mono-cameral systems. Equal and not-equal bicameralism. The Chambers of Deputies.
The Senate of the Republic. Parliament’s joint session.
• Parliament’s powers and functions.
• Status of the Members of Parliament. Parliamentary groups.
• Legislative Commissions and other committees.The cognitive activity. Inquiries.
• Specific laws. Amnesty and pardon. State’s Budget. Ratification of international treaties.
• Functions related to the EU.
• The Government. Mandate and executive power.
• Formation process. Political confidence. Constitutional provisions and constitutional customaries.
• Government's crisis.
• Essential bodies. President of the Council of Ministers. Council of Ministers. Ministers. Not-essential
bodies. Boards and committees.
• Auxiliary bodies (CNEL, Council of State and Court of Auditors).
• Executive power and the Administrative State. Constitutional principles of the Administrative State.
Separation between policy-making process and public offices. The (ongoing) reform of the contemporary
Administrative State.

• The President of the Republic. Constitutional Status of the Office. Checks and balances.
• The election process. Office requirements and term.
• Presidential functions related to fundamental State’s powers. Presidential Acts. Countersignature.
• Presidential crimes.

• The Constitutional Court. Form of constitutional justice.

• The Italian Constitutional Court. The Constitutional Court as constitutional body.
• Functions and jurisdiction. Judgement about the constitutionality of primary sources of law. Direct trial and
incidental procedure.
• Court’s rulings: judgement and ordinance. Legal effects of the declaration of unconstitutionality.
• Conflicts about allocation of powers.
• Judgment about the President’s impeachment.
• The judgement about the admissibility of abrogative referendum.

The Jurisdictional Power. Judiciary as legal order.

• Judicial function. Independency of the Judiciary branch. Composition of the Judicial branch.
• The Supreme Court.
• Civil and Criminal Courts. Administrative courts. Other jurisdictions (outlines).

• The right to a fair trial and other constitutional principles.

• Rule of law and due process of law (3). Habeas corpus. Writ.

• The structure of rulings.

 Administrative Power

• Public administration. Civil offices and civil servants.

• Administrative function and administrative power.
• Constitutional principles. Good administration. Impartiality. Rule of law (4).
• The administrative pluralism. State administrations. Local administrations. Administrative decentralization.

• The administrative proceeding. Participation and adversarial.

• Transparency. Freedom of Information Act (FOIA). Right of access and limitations.
• Administrative measures and provisions. Mere act.
• The administrative discretion.

• Flaws of administrative measures. Infringement of law. Incompetence. Symptoms of use of excessive

power. Ultra vires. Consequences and remedies.
• Administrative remedies. The judicial review.
• Special issues.
• (Independent) Administrative Authorities. Regulatory and quasi-judicial authorities.

• Antitrust agencies. The Competition Law.

• Collusive agreement and administrative procedure (before public authorities).
• The Abuse of dominant position and the administrative proceeding.

• Anticorruption authorities. Transparency and anticorruption measures. Maladministration. The right to a

good administration. Rule of law and efficiency of public service.

• Collusive behaviors and symptoms of corruption. The conflict of interest

**

• Case Law
 Law and the legal system
Introduction

• Whenever humans enter into forms of coexistence with others, a legal system is
created.
The fundamental trait of such system is related to its social dimension according
to the institutional theory.
[=> ubi societas, ibi ius ]
This theory is essentially based upon the concept of the “social group” .
[=> subjective criterion ]
[Maurice Hauriou (The Theory of the Institution and the Foundation, 1925), which
considers as Institution the organization that has independently achieved the
highest legal status]
[Santi Romano, (The Legal Order, 1918)]
• Other juridical theories have been developed and, amongst many, one of the
most relevant is based upon the concept of “basic norm” that forms the basis for
any legal system, giving the legitimacy to the Law => “grundnorm” theory.

[Hans Kelsen, (The Pure Theory of Law, 1934]

The fundamental trait of the “grundnorm” theory is based on the need to detect
the point of origin for any legal orders (the “very first principle”).

[=> objective criterion]

 Foundation of the legal system (/ legal order)
[=> institutional theory]

Each legal order requires certain constitutive elements, as:

– a social group: a community of people connected one each other by

common goals [or common interests];

– prescriptions: social relationships are qualified by (formal or informal,

written or unwritten) prescriptions [: mandatory behaviors] [=> norms];
such prescriptions may establish favourable (eg.: rights, faculties,
interests) and/or not favourable situations (obligations, burdens, etc.).
[see, infra: subjective legal situations]
– a common authority which has got the exclusive control over means
of coercion in order to ensure the (legitimate) exercise of power,
which may lead to favourable or unfavourable consequences to each
member of the community.

However, relationships among members of the same social group are

regulated by many categories of norms, only some of which, nevertheless,
can be properly defined as juridical or legal.
[eg.: ethical norms ?]
There are some distinctive characteristics that any legal norm (or “legal
rule”, or “rule”) must necessarily have.

1) Effectiveness: this concept describes the ability to impose binding

norms (rules) over all members of the social group.

It underlines also the power of a specific norm to produce real (or legal)
effects.
[see, infra : “enforcement of the law”]

2) Force: the ability to innovate the existing legal system.

It describes the power to establish new rules and to amend or repeal
previous ones.
[see, infra, “force of law”]
3) Generality: the ability to be applied [=> enforced] to an indefinite
number of subjects [=> as natural or legal persons; etc.].

This concept shows the power of a norm to be potentially addressed to all

members of the social group.

Moreover, the “generality” underlines a significative difference with other

prescriptions addressed to specific (or identified) individuals

[eg.: => fines and other administrative provisions where

the recipient(s) must be identified)];
4) Abstractness: the ability to be applied to an indefinite number of
situations,
even repeatedly over the time ..

... rather than “una tantum order” [=> or “one-off order”]

Moreover, the “abstractness” underlines a significative difference with

other category of prescriptions addressed to a tangible situation.

[eg.: ablative orders => coercive transfers; provisions; etc.)].

5) Sanctionable : the ability to be always enforced also by means of a
specific sanction or penalty;

[eg.: civil sanctions; administrative sanctions; penalties; etc.]

The purpose of a sanction is to remove a specific violation of the law

[=> “infringement”], so to ensure the integrity (effectiveness) of the legal
order.

Sanctions and penalties must be provided under the law both directly [: by
the same rule that prescribes some behavior] or indirectly [: by other rules
that are given by legal system] [ => “closure norm” ].
Synthesis

A legal norm [: rule ] can be defined as a general, abstract,

enforceable, mandatory prescription.

This concept may be also considered as one of the meanings of “rule of

law” [see, infra].

Moreover, when different legal rules are related to each other, they
constitute a legal system.
 Common Law and Civil Law Systems

The Common Law

I) Under a traditional perspective, the Common Law system does rely on a relatively
limited number of Statutes [=> Act or Statutory Law], even if more recently this
character has been partially exceeded.
[eg.: the UK Law because of the EU Law (..at least up to the “Brexit”..)].

II) This system indeed is also strongly based upon a Courts’ law-making function
that is far extended beyond a mere interpretation of the current legislation.

[eg.: Under the Common Law, wide areas of Private Law and Tort Law are based on
Court’s rulings; and, quite amazingly compared to the Civil Law system, also in some
case of unlawful exercise of discretionary public power ].
As a consequence, rules can be established (initially as far as legal principles) and
refined by Courts starting from a case-by-case basis.

The Judiciary consequently has got a relevant position in the law-making process,
that also implies a quite different evaluation of the principle of separation of
powers, compared to the Civil Law system.
Originally the Common Law was born as a guarantee, because of the need to
submit the Crown’s power to a “common court”, refusing any form of “special
court” that was considered as an unjustified privilege.

At the opposite, Civil Law systems had been developing under the assumption of
“speciality” of the public power (because it holds the mission to pursue general
interests that requires special rules – the Administrative Law, indeed – and
consequently a “special Judge”. [=> Administrative Courts ]
III) The judicial ruling that binds subsequent decisions in similar cases is called
also “precedent” [=> “stare decisis” principle].

All precedents are officially stored in “Records of Courts” and documented in

formal (public) collections of “Case Law”

[eg: “Yearbooks”; “Reports”; etc.].

During a trial, the presiding Judge determines the precedent that has to be applied
in order to take a decision about the specific case.
Whether the Supreme Court is involved in a judgment, it usually sets the principle
(or “the law”) to be applied into the case.
Since that moment such principle should also be applied to the generality of
other similar cases.
[=> “Supreme Court’s precedent” ]

The Judiciary thereafter becomes a proper law-maker [=> see, legal rules] because
its decision potentially binds a multitude of not identified subjects.

Þ thus only by means of a new Statutory Law (or a new assessment issued by an
appropriated Court about the same principle) may change such “precedent”.
Civil Law
I) This system is based on a wide corpus of codified Statutory Law.

Civil Law systems indeed are usually characterized by large and comprehensive
“codes” and statutes which should (i) specify as far as possible the matters
potentially capable of being brought before the Judiciary, (ii) regulate the applicable
procedure and (iii) establish the appropriate sanction in case of infringement (or
offence).

Under this framework, the Judiciary has primarily to establish the relevant facts or
acts that characterize the case filed before a Court and
to apply the correct provisions of (a Statutory) Law through the interpretation [: as a
legal technique ruled under the Law].
II) Thus, the Civil Law grants a less crucial role to the Judiciary in order to establish
the legal order, mainly because each decision binds only the parties directly
involved in the trial [=> no general enforcement of rulings].

However, the knowledge of the case law [=> “jurisprudence”] may be very
relevant because it may give substantial information about Courts’
interpretation of the Law.

Moreover, here, the Supreme Court is entrusted to ensure a coherent and

homogeneous interpretation of the Law, because of its nature of Court of last
instance.
[=> “nomophylactic function”].
 Public Law and Private Law

Both Common and Civil Law systems establish, according to their different
methodology, a further important distinction between Public and Private
Law.

The Public Law does rule:

- the (horizontal and vertical) distribution of authoritative powers
which grant the ability to act regardless of the recipient’s will;

- the relationship between those who are endowed with such

authoritative powers;

- the relationship between them and those who are subjected.

 (..continued) Public Law

Þ In other words, the Public Law does regulate the rule-makers and the relations
between them and “the governed” (rule-takers).

Þ It includes many subjects:

- Constitutional Law;
- Administrative Law;
- Parliamentary Law;
- Regional and Local authorities Law;
- Tax Law;
- Ecclesiastical Law; Public law
- Criminal Law;
- Criminal procedural Law;
- Civil procedural Law;
- International Law; etc..
 (continued) Private Law – Public Law

• The Public law has been founded on the authoritative principle of the
public power which allows issuing unilateral acts.

• The Private law does regulate the relationships between peer subjects
[=> subjects which don’t have authoritative power or don’t want to use
it].
Under this assumption, an “agreement ” is the only way to affect the
legal sphere of a subject.

[=> “consensual principle”]

 (continued) Private Law – Public Law

• Moreover, there are areas where the Public Law may significantly
complement the Private Law regulations.
[eg.: by affecting the contractors’ discretionary in order to pursue a public
interest (such as the consumer protection; the enhancement of free-
market competition; etc.)];

• Under certain assumptions, public entities (endowed with authoritative

powers) may also act through consensual agreements rather than
authoritative measures.
[eg: whenever bargaining with third subjects can be more efficient than
acting by means of authoritative powers; etc.].
 The concept of State: introduction

The concept of “State” has been evolving over the centuries

[conventionally => Westphalia Treaty, 1648; see infra]

however, the (modern) conception of State may be synthesized as

a “… legal system pursuing general purposes by imposing its sovereign
power over a specific territory, to which the subjects or participants are
necessarily subordinated ..” (C. Mortati’s);

Þ thus, the State is a not-derived entity

[=> superiorem non recognoscens ]

However, the concept of State may be defined according to other different
criteria; as indeed:

(i) a form of a stable organization able to set and pursue general

purposes [=> “general interest ”];

(ii) a legal system [: it coincides with the law];

(iii) a community [: it is composed by individuals, legal entities, etc.]

The State’s action is not limited to any pre-defined purpose, rather it can
legitimately address all aspect of the community’s life.
 => various “Form of State” and “Form of Government”

The Form of State concerns the relationship between the State’s power
(that can legitimately exercise coercive power as an expression of
sovereignty) and the Citizens.

[=> relationship between State’s authority and Citizens’ freedom]

The Form of Government concerns the distribution of powers among

the branches of the State;
or, under a different perspective, the relationship between
Constitutional Bodies
[=> bodies entrusted of functions related to the fundamental powers
(legislative; executive; judiciary)].
 The constitutive elements of the State

According to the modern definition of State, some elements must be

identified as constitutive, and more precisely:

1. Territory: a specific geographic area delimited by borders over which the

sovereignty is fully exercised.

2. Community: all the individuals belonging to the same political community.

3. Sovereignty (or sovereign power): the power to carry out any political
activity through bodies setting and performing purposes, both internally
[due to the legitimacy of the State’s authority of over individuals] and
externally [peer relationship with other similar entities, due to the
international recognition].
 The internal sovereignty

The internal sovereignty is immediately manifested by means of the State’s

fundamental powers.
[=> law-making power; executive power; judiciary power]

The internal sovereignty of any democratic representative States must

be restrained by constitutional guarantees.

[=> see infra: individual freedoms; separation of fundamental

powers (legislative, executive, judicial); rule of law principle; due
process of law principle; etc.]
 External sovereignty:
the State into the international order.

• The globalization process has significantly developed the relationship

between sovereign States.

• The national law [and somehow the sovereignty too] has been reduced
due to the increase of inter-States ties.
Under this perspective many supra-national organisations have been
entrusted by States of competences over different areas of interest
with the obvious result to impose limits to the national policies.

An increasing number of supra-national organizations and jurisdictions have

been consequently established since the end of the 2nd World War.

[=> “multilevel international system”]

[e.g.: United Nations, WTO (World Trade Organization), ITU; ECHR; etc.].
This process outlines how the States’ sovereignty may be not always
adequate to settle interests and disputes which are oversized having regard
to the national jurisdiction.

Because of that reason another legal order laying on the conception of

(formally) peer subjects (the States) has been established.

However, this system affects the traditional concepts of State’s sovereignty

that needs a geographical dimension, shaped within clear political
boundaries.
Under a more juridical perspective, it is clear that the growth of the
international system leads to many questions including the relationship
between “extra-ordinem” rules and the State’s legal system.

This relation is based on a self-restraint of the State sovereignty,

usually settled by certain constitutional rules.

[eg.: the Italian Republic establishes such self-restraint according to art.

10, par.1, art. 11 and art. 117, par.1, of the Constitution ]
 => Introduction to the sources of International Law

1) Agreements / Treaties / etc., between States

such sources do require some special procedure in order to be transposed
into the domestic law
[=> “ratification”; “transposition”; etc.)].

2) Customs and Practices

commonly adopted and recognized in the international Community [=>
praxis]
International customaries are usually automatically transposed into the
national jurisdiction (“per se” criteria)].
What is the rank of the International Law into the national law system?
The relationship between domestic and international Law may be settled
according to different legal patterns.

1. Dualistic criteria: the domestic legal system, by accepting certain

limitations to its sovereignty, provides a concurrent recognition of the
value of international rules. This approach is characterised by a formal
distinction between internal and external norms, which remain
separated until they are transposed.

2. Monistic criteria: the domestic legal system automatically accepts

international norms into the national jurisdiction, thus guaranteeing
that the former are automatically recognized and having value.

3. [=> see, art. 10, 11, 117, of It. Rep. Const.]

 => Introduction to the sources of EU Law

Normative sources:
1) EU Treaties [eg.: the Treaty of Rome (1957), that is commonly considered an
International Law source].
2) EU Directives [binding rules that Member States have to formally transpose
into the national law within the deadline established by the Directive itself].
3) EU Regulations [binding rules directly enforceable into the national Law,
without any procedure of transposition].

Non-normative sources: [=> infra, “soft law”]

1) Recommendations.
2) Advisory acts.
3) Guide Lines;
4) Communications; etc.
 European Union Treaties.
(outline).

- 1951: European Coal and Steel Community Treaty.

- 1957: Treaty of Rome: European Economic Community Treaty that founded the EEC and the
European Atomic Energy Community. Whilst the former was a sector-focused organisation,
the latter had a general purpose, even though it was initially considered as substantially
limited to the economic regulation through the legal provision of “economic freedoms”;
indeed:

o national custom tariffs on import/export of goods and commodities were abolished;

o quantitative restrictions on import/export and other measures having equivalent effects

were also forbidden;

o a common custom tariff rate policy was introduced to regulate commercial relationships
with third countries;

o free circulation rights [related to “factors of the economic production”] were imposed to any
Member State, as the right of free movement of employees; the right of free establishment
of undertakings and, even if originally with some limit, of any professional; the right of free
movement of goods, services and finance;
 o moreover, for the first time ever, the protection of market competition was established
through specific statutory prohibitions, among others against collusive agreements; abuse
of dominant position; anticompetitive mergers, State aid and dumping policies. This would
then become one of the main purposes of the EU Law [=> "EU Antitrust Law"].

• 1987: Single European Act ("SEA", the first major revision of the Treaty of Rome): new areas
of competence (social policies, environmental protection, economic integration, etc.) were
transferred to European Community jurisdiction.

• 1992: Treaty of Maastricht was signed, giving to the EC/EU a new organisation which was
entrusted to complete the long-term European mission and, inter alia, the European
Monetary Union - EMU. The "European citizenship" was also established.
• 1997: Treaty of Amsterdam, which strengthened the cohesion policies through a common
foreign policy, a common security policy and, mostly, a judicial co-operation in criminal matters.

• 2000: The Charter of Fundamental Rights was issued by the EU Parliament, the EU Council of
Minister and the European Commission (btw it entered into full force only with the signature of
the Treaty of Lisbon).

• 2001: Treaty of Nice modified the procedures for infringement actions against Member States,
as well as it extended the procedures of co-decision and cases in which a majority qualified
vote have to be applied.

• 2007: Treaty of Lisbon: actually in force (since 2009), it is composed by the EU Treaty and the
Treaty on the Functioning of the EU (TFEU), that bring together (and partially reform) previous
Treaties. The approval of the Treaty also issued the entry into force of the Charter of
Fundamental Rights.

• “Brexit” (23rd of June, 2016).

• What’s next ..?

 The contemporary Public Law: some issues related to the
sources of law

1) The State sovereignty is not always adequate to represent and

regulate certain interests.

=> this has been leading to the growth of International and

EU Laws and others form of supranational jurisdictions.

Are those sources of law legitimated by a democratic representation?

2) Soft law => informal rules able to constraint their recipients to some
specific conduct or behavior without any enforcement nor legal sanctions in
case of infringement.
Þ an heterogeneous set of “para-normative” sources issued by different
bodies and entities.
[eg.: inter alia, EU White Papers; EU Green Papers; ECommission
Guidelines; self-conduct codes; etc.]

In other words, a soft law establishes “… rules of conduct which in principle

have no legally binding force but which nevertheless may have practical
effect …” [Snyder, 1994].

Do soft laws conceal sanctions ?

3) Administrative regulation => another symptom of the crisis of traditional
sources of law.
This trend is mainly due to the need to assess technically adequate (due
to the technological development, etc.) timely and impartial decisions.

The establishment of public bodies to which the State grants the power to
issue general rules by adopting “administrative measures”, shows
how much the primary laws are challenged even inside national
jurisdictions.

[(1) Independent Administrative Authorities; Regulatory Authorities.

etc.]
[=> AGCOM; AGCM (I); ARCEP (FR); OFCOM (UK);
BUNDESNETZAGENTUR (D); etc.]
AAs may be encharged to adopt administrative measures (to pursue
general interests) in order to regulate sectors of the social or economic life,
usually within the general framework provided by Statutory Law.

Because that form of regulation might be considered as a sort of normative

power, thus the administrative nature of AAs raises a very sensitive
question about the constitutional legitimacy of such a (substantially) rule-
making power.

Moreover, administrative provisions are usually adopted to establish

specific and concrete prescriptions, not general and abstract ones.
However, despite all those criticism, AAs have been increasing in numbers
since last two decades almost overall European Countries.

Probably the AAs' success is due both to their administrative nature, that
allows a short-term adaptation of rules to change conditions (economic,
technological, etc.) of their area of competence,

and to the fact that their peculiar power is, in any case, provided by a
Statutory Law.
4) Private regulatory systems composed of heterogeneous “para-
normative” sources adopted by different bodies and entities which may
have even private nature

[eg.: inter alia, Quality Certification - Quality Assessment codes; Self-

conduct codes; etc.]

[eg.: ICANN - Internet Corporation for Assigned Names and Numbers]