Italian Private Law

Topics: Law, Common law, Property Pages: 18 (5160 words) Published: May 17, 2013
ch 1 - the legal system

rule - prescribes a human conduct (поведение) as compulsory, prohibited or lawful (derives from regula)

personal - regards the conduct of a specific person or group of persons factual - covers one or more specified situations
general - directs the conduct of whoever may find himself in a specified situation abstract - covers any situation that repeats any of the one envisioned

1)save exceptions
2)rules in codes, acts, statues,decrees, regulations

norm= normal, prescribe a certain pattern of behaviour
sanction=provision to secure its enforcement (обеспечение правопорядка), subjects the person who breaks the rule to negative consequences civil sanctions ( compensation for damages)
criminal sanctions (imprisonment)
administrative sanctions (fine)

criterion for recognition between legal rules and not (rules of courtesy): a legal rule would be rule a violation of which would be checked by the use of force by a person or group who has “the socially acknowledged privilege to act in such a manner”. hoebel “we associate the law with courts, courts with magistrates” (atiyah)

on what rules is the court decision to be founded?
no longer free to draw its decision from whatever source it may choose judicial precedents - the way cases were previously adjudical (судубными, рассудительными) tend to prevail opinions of legal scholars - sources - rules - official collection - texts of reference rules dictated by authorities

legal rule= solely that which is formed out of one of “modes of production” laid down by the system itself

source of law=any act or fact apt at producing legal rules in a given system written sources - rules laid down in written texts
unwritten sources - inferred from observance of customs, examination of precedents(although judicial precedents are no less written - interpretation)

types of sources:
judicial precedents - case law: a criterion for resolution which is to be applied to a similar case: english system - now north-american legislation
in an advanced system legal rules stem from specific sources legislative act - a proceeding by which an authority vested with the power to legislate draws up a text containing legal rules continental europe - now case law

Art 1 of Preliminary Provisions to the CC (civil code): (lays down such sources) statutory law
Art 70 of Italian constitution: the 2 houses of parliament (Camera dei Deputati Senato della Republica) legislate and the corresponding power is governed by opposite provisions

Rules are themselves regulated by specific produced rules

the legitimacy of a legal system stems from its affirming as such, within a given social grouping

legal system - a complex of legal rules that makes a uniform and orderly set, precisely cause they have been made in conformity with an ensemble of sources, legitimatized by a single founding act which paved the way to the organization of a social grouping

legal - is only what system itself has defined as such, as it is traceable to the proper sources from state’s point of view:
only domestic law, law of the state
laws of another state

laws of the church

international law - regulates relationships btw the states, draws upon its own sources and rules (intern. customs + treaties which every state must observe) what may be unlawful under intern. law may be lawful under national law rules are approved by italy only after ratification by houses of parliament - art 10=”the italian legal system conforms to the international rules generally accepted”

locked system of sources= societies which draw a clear line btw legislative and judicial power legislative power does not equal judicial
less clear line in societies where case law is the source
fully locked system is unattainable

sources of italian law:
art 1 of preliminary provision to cc since 1942
since jan 1 1948 (constitution of ital republic effective) the...
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