INTRODUCTION TO LEGAL SYSTEM - MODULE 2
06.09.2021
Legal system Ubi Societas, Ibi Ius —> systems of rules emerging every time humans enter into forms of
cohabitation or coexistence (system of rules that emerge every time individuals interact)
elements of legal system:
- plurality of individuals coexisting
- shared criteria to evaluate behavior
- rules making some behaviors illicit and rewarding others (i.e.. sanctions)
- an authority within the group with some form of lawmaking power and the power to enforce rules
theories on legal systems:
1. Normativist Theory: emphasizing the formal and State element: Hans Kelsen (it is the norm that
distinguishes legal system)
- i.e. Constitution is the basic norm and other norms have to be in compliance with Constitution
2. Institutionalist Theory: emphasizing the sociological element: Plurality of Legal Systems by Santi
Romano (social element, law as the social phenomenon)
There is a plurality of legal system (the State is one of them).
classi cation of Legal Systems:
1. Fluid v. Concentrated
- Fluid
- no central authority
- e.g. International System (International Law regulated the relationships between di erent states)
- Concentrated
- strong central authority (last decider)
- e.g. The State
2. Voluntary v. Necessary (connection between individuals)
- Voluntary
- people come together out of common will, interest, need, or belief
- mostly non-territorial e.g. an association, a political party
- Necessary
- people cannot opt out of the system
- mostly territorial e.g. residents in town, citizens in a nation state
3. Specialist v. General (goals of grouping system)
- Specialist
- rules governing only speci c sets of relations (i.e. speci c goals)
- e.g. WTO (focused on trade), association that focuses on environment, The Church
- General
- aspiration to govern all spheres of life (i.e. wellbeing of all the people)
- e.g. The State of European Union? (initially the goal was to create economic integrity - speci c,
but now the scope is much broader)
4. Non-Sovereign v. Sovereign
- Non-Sovereign
1
fi fi fi ff fi
, - require authorization and legitimation by a sovereign to exercise power (it can exists only when
another legal system exist)
- e.g. Regions, local councils, government agencies, European Union (their power is not sovereign
because it is derived from the State, its existence relies on the existence of member states - they
can withdraw anytime (e.g. Brexit))
- Sovereign
- sovereign power is self-su cient – it does not need external legitimation
- e.g. The State (territory, people, authority)
The State (Peace of Westphalia 1648 - birth of the modern, sovereign state)
- legal system founded to actively pursue general goals or ends
- characteristics:
- general
- concentrated
- necessary
- sovereign (i.e. regional and self-su cient)
- external sovereignty —> The State as an original or non-derived entity can be distinguished from
derivative entities. It is independent. (i.e. independent from other legal systems)
- each state has its own territorial area of jurisdiction
- internal sovereignty —> 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.
Article 1 of 1933 Montevideo Convention on the Rights and Duties of States de nes the State as the
person (player) of international law.
quali cation:
- a permanent population
- a de ned territory
- government (i.e. internal sovereignty)
- capacity to enter into relations with the other states (i.e.external sovereignty)
What about states that are in war? What government shall be consider?
(e.g. German invasion on Poland, polish government in England)
Theoretically no, but it may happen that States that do not ful ll all of Article 1 are still recognized as
states (due to political reasons)
Article 2 The federal state (composed of more than one 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 do 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. (i.e. all states are equal in the international
arena (according to international law) regardless of their size, power etc)
Key elements of the State:
1. Territory
- exercised over geographically de ned state borders – a distinct territory, normally contiguous
- but sometimes a territory may be enclaved in another state (e.g. the Vatican City)
- N.B. di erence with Medieval organization – fuzzy borders, frequently changing (acquired
through marriage or inheritance), overlapping authorities
- International law and international conventions determine state borders (e.g. African boarders
were determined during Berlin Conference)
2
fifi ff ffi fiffi fi fi
, - elements that constitute territory itself:
- dry land
- continental shelf - outside of territorial seas (Geneva Convention 1958, a depth of 200
meters)
- territorial seas (maritime waters) (Montego Bay Convention 1982 -12 sea miles, beyond–
open sea)
- aerial space
- subsoil (material possibilities of exploitation)
2. Sovereignty
- external dimension
- state do not recognize superior authority (Westphalian System)
- but it was limited in the past decade to allow states to be a part of international
organizations (e.g. EU)
- internal dimension
- state has supreme authority over subjects/citizens/other entities or legal systems within it
- sovereignty is exercised through Law (law-making power)
- legitimate sovereignty (what is sovereign power based on?), theories:
1. theocratic theories: divine nature of authority i.e. religion/God is the base for law
(e.g. Afghanistan)
2. legitimization theories: historical roots of royal institutions i.e. power is passed over
generation (e.g. monarchies; Japan (now it is opened only to male, discussion))
3. contractual theories: authority of the state is funded upon social contract
4. theories basing sovereignty upon the idea of the Nation (i.e. homogenous group;
people speaking the same language, having the same culture/religion)
5. sovereignty is attributed to the public legal personage of the State (drafted by
German scholars) - aim is to build the most powerful state with very strong
government and military
6. democratic constitutionalist theories: will of the people grants power to the State
07/09/2021
3. People
- theories on the nature and content of the "people"
1. people as a constitutive element of the state
2. people as the object of State sovereignty (i.e. passive role of the people)
3. people as subject of rights and freedom toward the State (i.e. people may be an
active player towards or against the state, states duty is to protect the people)
4. people as creator of the State’s will
Citizenship
- connection between the State and people
- citizenship is a concept identifying the condition of being bound to a given State, from which the
individual:
- receives certain rights to which he or she owes certain obligations
- is forced to respect certain duties
For EU citizens there is also the European citizenship (e.g. all EU citizens can use embassies in di erent
countries).
Two criteria are used as distinctive elements to di erentiate citizens from aliens (nowadays this distinction
is not that important - aliens also posses certain rights and duties when in other country)
3
ff ff
, 1. ius sanguinis (i.e. right of the blood)
- citizenship transmitted through the blood (after parents)
- most common
2. ius soli (i.e. law of the soil / land)
- you acquire citizenship if you were born on the territory of this country
- e.g. USA, almost all countries in americas (because it was a land of immigration)
Citizenship can be acquired:
1. by birth
2. later in life
- ius connubii (by marriage)
- obtained by law (by completing the requirements; language test etc)
- naturalization by the President of the Republic
Citizenship can also be lost or revoked (lost)
- e.g. connections with country your country is in war
- there is a debate on the European level to allow revoking of citizenship for people involved in terrorist
attacks
- e.g. UK (Shamina Begum case), she went to Syria, UK revoked her citizenship, now she is
stateless and stays in the refugees camp)
13/09/2021
The State - historical evolution
1. Medieval Europe
- plurality of jurisdictions (and centers of political power)
- no clear hierarchies
2. Modern State System (born in 1648, Peace of Westphalia)
- state has continuity in time and space
- centralization of power
- sovereignty
Globalization made the sovereignty of the states questionable. Globalization created a world marketplace
with goods, services and people move freely across national boarders and this movement is controlled
via international regulations and laws i.e. supranational level (e.g. EU,UMF, WTO).
Multi level governance
- entitled to produce norms at the supranational level (not only domestic)
- exercise public power
Multi level constitutionalism
- check and balance respect of human rights
- system of controls (e.g. court of justice in EU)
Recently there is a sort of backlash against globalization.
- states and global economy
- economic nationalism (more states start to focus again mostly on national economies and businesses)
- Dani Rodrick ”Has Globalization Gone too Far?”, “The Globalization Paradox”. “we cannot
simultaneously pursue democracy, national determination, and economic globalization”
4
06.09.2021
Legal system Ubi Societas, Ibi Ius —> systems of rules emerging every time humans enter into forms of
cohabitation or coexistence (system of rules that emerge every time individuals interact)
elements of legal system:
- plurality of individuals coexisting
- shared criteria to evaluate behavior
- rules making some behaviors illicit and rewarding others (i.e.. sanctions)
- an authority within the group with some form of lawmaking power and the power to enforce rules
theories on legal systems:
1. Normativist Theory: emphasizing the formal and State element: Hans Kelsen (it is the norm that
distinguishes legal system)
- i.e. Constitution is the basic norm and other norms have to be in compliance with Constitution
2. Institutionalist Theory: emphasizing the sociological element: Plurality of Legal Systems by Santi
Romano (social element, law as the social phenomenon)
There is a plurality of legal system (the State is one of them).
classi cation of Legal Systems:
1. Fluid v. Concentrated
- Fluid
- no central authority
- e.g. International System (International Law regulated the relationships between di erent states)
- Concentrated
- strong central authority (last decider)
- e.g. The State
2. Voluntary v. Necessary (connection between individuals)
- Voluntary
- people come together out of common will, interest, need, or belief
- mostly non-territorial e.g. an association, a political party
- Necessary
- people cannot opt out of the system
- mostly territorial e.g. residents in town, citizens in a nation state
3. Specialist v. General (goals of grouping system)
- Specialist
- rules governing only speci c sets of relations (i.e. speci c goals)
- e.g. WTO (focused on trade), association that focuses on environment, The Church
- General
- aspiration to govern all spheres of life (i.e. wellbeing of all the people)
- e.g. The State of European Union? (initially the goal was to create economic integrity - speci c,
but now the scope is much broader)
4. Non-Sovereign v. Sovereign
- Non-Sovereign
1
fi fi fi ff fi
, - require authorization and legitimation by a sovereign to exercise power (it can exists only when
another legal system exist)
- e.g. Regions, local councils, government agencies, European Union (their power is not sovereign
because it is derived from the State, its existence relies on the existence of member states - they
can withdraw anytime (e.g. Brexit))
- Sovereign
- sovereign power is self-su cient – it does not need external legitimation
- e.g. The State (territory, people, authority)
The State (Peace of Westphalia 1648 - birth of the modern, sovereign state)
- legal system founded to actively pursue general goals or ends
- characteristics:
- general
- concentrated
- necessary
- sovereign (i.e. regional and self-su cient)
- external sovereignty —> The State as an original or non-derived entity can be distinguished from
derivative entities. It is independent. (i.e. independent from other legal systems)
- each state has its own territorial area of jurisdiction
- internal sovereignty —> 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.
Article 1 of 1933 Montevideo Convention on the Rights and Duties of States de nes the State as the
person (player) of international law.
quali cation:
- a permanent population
- a de ned territory
- government (i.e. internal sovereignty)
- capacity to enter into relations with the other states (i.e.external sovereignty)
What about states that are in war? What government shall be consider?
(e.g. German invasion on Poland, polish government in England)
Theoretically no, but it may happen that States that do not ful ll all of Article 1 are still recognized as
states (due to political reasons)
Article 2 The federal state (composed of more than one 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 do 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. (i.e. all states are equal in the international
arena (according to international law) regardless of their size, power etc)
Key elements of the State:
1. Territory
- exercised over geographically de ned state borders – a distinct territory, normally contiguous
- but sometimes a territory may be enclaved in another state (e.g. the Vatican City)
- N.B. di erence with Medieval organization – fuzzy borders, frequently changing (acquired
through marriage or inheritance), overlapping authorities
- International law and international conventions determine state borders (e.g. African boarders
were determined during Berlin Conference)
2
fifi ff ffi fiffi fi fi
, - elements that constitute territory itself:
- dry land
- continental shelf - outside of territorial seas (Geneva Convention 1958, a depth of 200
meters)
- territorial seas (maritime waters) (Montego Bay Convention 1982 -12 sea miles, beyond–
open sea)
- aerial space
- subsoil (material possibilities of exploitation)
2. Sovereignty
- external dimension
- state do not recognize superior authority (Westphalian System)
- but it was limited in the past decade to allow states to be a part of international
organizations (e.g. EU)
- internal dimension
- state has supreme authority over subjects/citizens/other entities or legal systems within it
- sovereignty is exercised through Law (law-making power)
- legitimate sovereignty (what is sovereign power based on?), theories:
1. theocratic theories: divine nature of authority i.e. religion/God is the base for law
(e.g. Afghanistan)
2. legitimization theories: historical roots of royal institutions i.e. power is passed over
generation (e.g. monarchies; Japan (now it is opened only to male, discussion))
3. contractual theories: authority of the state is funded upon social contract
4. theories basing sovereignty upon the idea of the Nation (i.e. homogenous group;
people speaking the same language, having the same culture/religion)
5. sovereignty is attributed to the public legal personage of the State (drafted by
German scholars) - aim is to build the most powerful state with very strong
government and military
6. democratic constitutionalist theories: will of the people grants power to the State
07/09/2021
3. People
- theories on the nature and content of the "people"
1. people as a constitutive element of the state
2. people as the object of State sovereignty (i.e. passive role of the people)
3. people as subject of rights and freedom toward the State (i.e. people may be an
active player towards or against the state, states duty is to protect the people)
4. people as creator of the State’s will
Citizenship
- connection between the State and people
- citizenship is a concept identifying the condition of being bound to a given State, from which the
individual:
- receives certain rights to which he or she owes certain obligations
- is forced to respect certain duties
For EU citizens there is also the European citizenship (e.g. all EU citizens can use embassies in di erent
countries).
Two criteria are used as distinctive elements to di erentiate citizens from aliens (nowadays this distinction
is not that important - aliens also posses certain rights and duties when in other country)
3
ff ff
, 1. ius sanguinis (i.e. right of the blood)
- citizenship transmitted through the blood (after parents)
- most common
2. ius soli (i.e. law of the soil / land)
- you acquire citizenship if you were born on the territory of this country
- e.g. USA, almost all countries in americas (because it was a land of immigration)
Citizenship can be acquired:
1. by birth
2. later in life
- ius connubii (by marriage)
- obtained by law (by completing the requirements; language test etc)
- naturalization by the President of the Republic
Citizenship can also be lost or revoked (lost)
- e.g. connections with country your country is in war
- there is a debate on the European level to allow revoking of citizenship for people involved in terrorist
attacks
- e.g. UK (Shamina Begum case), she went to Syria, UK revoked her citizenship, now she is
stateless and stays in the refugees camp)
13/09/2021
The State - historical evolution
1. Medieval Europe
- plurality of jurisdictions (and centers of political power)
- no clear hierarchies
2. Modern State System (born in 1648, Peace of Westphalia)
- state has continuity in time and space
- centralization of power
- sovereignty
Globalization made the sovereignty of the states questionable. Globalization created a world marketplace
with goods, services and people move freely across national boarders and this movement is controlled
via international regulations and laws i.e. supranational level (e.g. EU,UMF, WTO).
Multi level governance
- entitled to produce norms at the supranational level (not only domestic)
- exercise public power
Multi level constitutionalism
- check and balance respect of human rights
- system of controls (e.g. court of justice in EU)
Recently there is a sort of backlash against globalization.
- states and global economy
- economic nationalism (more states start to focus again mostly on national economies and businesses)
- Dani Rodrick ”Has Globalization Gone too Far?”, “The Globalization Paradox”. “we cannot
simultaneously pursue democracy, national determination, and economic globalization”
4
