Session 1 - Elisa Bertolini first lecture PDF

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Elisa Bertolini first lecture...

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Session1: The Characteristics of the State Since the Romans, and even before, individuals had built legal systems to follow their interests and preserve society, and we still do that. What are the basic requirements for a legal system to emerge? The constituent elements of a legal system are a number of subjects who make up a social group and are connected to each other. According to the romans the legal phenomenon is connected to the social part of a group. So, law is a social phenomenon, meaning that whenever a social group is created --> a legal system will be created too. A social group without legal norms is unthinkable. The constituent elements of a legal system are: 1. certain number of subjects, who make up a social group and are connected to each other by a common goal. So, in order to build a social group, a common goal is necessary 2. titular power and authority assigned within the group; What the group need is s'one in charge, who impose social norms inside the group 3. authority has means of coercion to ensure the legitimate exercise of power and to enforce legal norms. Focus on legitimacy: authority has the means of coercion, meaning that who is in charge has to follow a legitimate behavior. Indeed, if the other members of the group perceive a norm as illegitimate, they will disobey to it. Relationships among members of the same social group are regulated by numerous norms (religious, social…). Only some are legal (those that are produced solely by a legal system). The sole fact that a norm attempts to govern relationships among members of society is not sufficient to define such a norm as juridical or legal. Norm and its distinctive characteristics: •

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Effectiveness: the capability of create binding legal effect. Legal norms remain valid only so long as the legal system from which they derive remains effective. Remember however that the ineffectiveness of a single legal norm does not jeopardize the validity of the general legal system. Force: the capability of create new legal rules and innovate the legal system. Remember from ILS 1 that a source of law is any act of fact which is capable of innovating (to change) the legal system. It is necessary that a legal system identifies which sources produce or have a legal effect. This power resides, initially, in the Constitution, which is at the top of the hierarchy of legal sources. Generality and abstractness: it must be applicable to an indefinite number of situations and individuals. Indeed, there aren’t legal norms which are applicable to solely one person. Nomen iuris: legal norms are closed. It means that each legal system recognizes a certain number of norms. They are exclusively the ones that are expressively recognized as such (for instance inside the constitution). Produced only by a competent authority Following a particular legislative procedure For instance, Statute law mut be passed by the Parliament (separation of power --> legislative power to the parliament). So, the government cannot enforce and pass a statute Law without the Parliament acceptance.

As it can naturally arises, the most common and famous legal system is the State: a concentrated legal system, which is necessary, territorial, independent and sovereign. •

The State legal system is founded to actively pursue general goals or ends. (mainly the well-being of the people --> welfare). This means that the State can be distinguished from other legal system since the range of State action (and those of State entities) is not limited to the attainment of specific present objectives, but rather can legitimately regulate any aspect of social human life it wishes to in order to attain those objectives, using the apparatus of the State.

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It is concentrated and necessary. The former means that there are lots of rules and norms that bind the citizens one another with the State. The latter means that you cannot decide voluntary to be part of a specific legal system (whatever it likes or not, it is not a choice). Note that there are other legal system which are voluntarily (e.g. associations)

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The State as an original or non-derived entity can be distinguished from derivative entities (which include State territorial sub-divisions such as regions and provinces) it is independent. This is external sovereignty. For instance, the EU is a union of states, meaning that it derives its identity from the founding States.

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Each State has its own territorial area of jurisdiction. To the State corresponds a certain geographical area, where the State can exercise its authority.

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The sole existence of a single political power to which all in that territory are subject becomes the unifying element which binds together the participants in a given legal system. This is internal sovereignty. The State is characterized by a single center of power and anyone inside the State is subject to this latter.

1933 Montevideo Convention on the Rights and Duties of States: Article 1 The state as a person of international law should possess the following qualifications: 1. a permanent population; 2. a defined territory; 3. government; and 4. capacity to enter into relations with the other states. Article 2 The federal state shall constitute a sole person in the eyes of international law. Article 4 States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one does not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law. There are three characterizing elements of the State legal system: 1. Territory; 2. Sovereignty; 3. People. If anyone of these elements lack --> we cannot be able to identify a State as such. From this, the very effective and well-known definition of State: “the State is the legal system having general ends and objectives which exercises sovereign power over a specific

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territory, to which the subjects or participants belonging to such system are necessarily subject and subordinated”.

Territory: It is the space where the state exercises its sovereign power which characterizes all the people that live in this state.The elements that constitute the territory itself are: 1. dry land; 2. continental shelf=outside of territorial seas, Geneva Convention 1958, a depth of 200 meters; it's what is under the sea and it's important because usually is very rich and therefore the state has the right to exploit it 3. territorial seas(maritime waters)=Montego Bay Convention, 1982 -12 sea miles, beyond–open sea (in the open sea --> no sovereign State); 4. aerial space (space above the territorial waters and dry land); 5. subsoil (material possibilities of exploitation); what is underneath the dry land. The state has sovereignty over the subsoil as far as it can go. No limits of deepness. Sovereignty The legitimization of sovereign power is based on: 1. theocratic theories = divine nature of authority; it actually identifies the source of power in the divine, a religious entity (God). Therefore, religious and political sphere are seen together. According to St. Paul's Theory, the power stems from God 2. legitimisation theories = historical roots of royal institutions; legitimacy is based on blood, which is considered as the line of succession (es. Monarchies in the middle ages) 3. contractualist theories: the foundation of the state and source of legitimation is the social contract. According to Hobbes' view, people live in the state of nature (which is cruel and bad) and therefore they need to enter into a social contract with someone who will guarantee their well-being in exchange of some privileges. 4. theories basing sovereignty upon the idea of the Nation; this concept was brought out during the France revolution. Nation is a group of individuals that share same language, religion, belonging to the same ethnic group, same traditions, costumes. The nation is an OMOGENOUS group of individuals. These theories have a dark side since they can degenerate into nationalism. 5. theories that attribute sovereignty to the public legal personage of the State; (linked to German thinkers): the state is seen as a legal person owning the sovereignty. It gives a lot of power to the state and therefore, we have a straightening of the role of the state, who will exercise its sovereignty through the constitution 6. democratic constitutionalist theories: they assign the sovereignty to the people (articolo 1 costituzione italiana). People is different from nation, because people not necessary are homogeneous. People • Doctrinal debate that has led to the formulation of four separate theories (which do not exclude each other) regarding the nature and content of the concept of the “people” itself: 1. The theory of the people as a constitutive element of the State; 2. The theory of the people as the object of State sovereignty; According to this theory, people is passive.

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3. The theory of the people as subject of rights toward the State. In this view people are not passive, they have an active role being entitled to claim the protection of certain rights to the state. There is an idea of dialog between people and state 4. Theory of the people as creator of the State’s will. It means that people are the sovereign. People create and shape the State Citizenship is a concept identifying the condition of being bound to a given State, from which the individual: 1. receives certain rights; 2. to which he or she owes certain obligations; 3. is forced to respect certain duties. For EU citizens there is also the European citizenship. (It does not replace the original citizenship but it is complentary to it.) Two criteria are used as distinctive elements to differentiate citizens from aliens: 1. ius sanguinis: Citizenship is transferred through blood; “sei Italiano perchè uno dei tuoi genitori lo è” 2. ius soli: “sei italiano perché sei nato in italia” Citizenship can be: 1. Acquired by birth; 2. Acquired later in life: a) ius connubii; through a marriage b) obtained by law; each Nation defines its own criteria c) c. naturalisation by the President of the Republic. 3. Revoked. (UK Shamina Begum case: she joined the Islamic state and the UK revoked her citizenship. Since stateless individuals must be avoided, international organizations and supranational institution have to intervene to solve the issue). It is also possible to reject voluntarily its own citizenship, provided that another citizenship is acquired --> stateless people must be avoided, they don’t have any form of protection.

Beyond the State Idea of State has been put into crisis in the last few decades by globalization. • Classical constitutionalism: it focuses on the idea of the Nation State. • Globalization: a new phenomenon that creates a world marketplace where goods, workers and capital move freely across national borders. Multi-level governance and constitutionalism • Transfer of powers to supranational organizations: IMF, WTO, NATO, UN • Multi-level governance: EU (Entitled to produce legal norms which can be enforced on the citizens of all the member states. So, there can be legal norms which come from outside the state and bind its citizenship) • Multi-level constitutionalism: organs producing norms at supranational level and impose such norms on citizens of different nation States. The State and International Law How does the domestic legal system interact with the international law?--> Two approaches: 1. Monistic approach: international law does not need to be implemented into national law –single legal reality (The Netherlands); no separation between domestic and international legal systems --> no need for implementation --> just one legal system 2. Dualistic approach: international law needs to be implemented into national law two separate legal realities (Italy); As the opposite of the monistic approach, the two legal systems are separated.

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