snupg4.files.wordpress.com€¦ · web view2020. 12. 30. · , the distinguishing criterion would...

INTRODUCTION TO PUBLIC LAW

Public LawPart One

Chapter OneNorms, Subjects and Objects of Public Law1) -Society and law.2) -The legal system.3)-The Somali legal system4) Public-Law and Private Law.5) Public Order.6)-Plurality of legal system.7)-The constitution of legal system8)-The legal powers a)-legal power b)-subjective rights9) Subjective faded (weakened) rights10)-The interests of pubic law.11)-Duties and public burdens.12)-The subjects of the law.13)-Public legal persons14)-Public Legal persons without personality15)-Classification of public legal entities16)-Relationship between public legal entities and the state17)-Political capacity and autarchy18)-legal facts19)-Unlawful legal act and their consequencesChapter two Partition of Public Law1) - Internal Public Law and International Public Rights.2) - Constitutional and Administrative. 3) - Criminal Offense.5) – Procedural law6) - Labour law and Trade Unions7) – Financial lawChapter ThreeSources, Interpretation and Effectiveness of Public Law1) -law.2) -Regulation.3) -Regulatory power.4) -Autonomy.5) -The customary.6) –The rules of constitution8) -Interpretation of the Legal system9) -The hierarchy of sources.10)-The analogy11)-The general principles

1 | P a g e C o l l e c t e d b y : M M A


12)-The competence13)-Effectiveness of the law in time14-Effectiveness of Space Law15)-Referrals between legal systemsPart TwoChapter OneThe state, its elements, its organs1) Concept of State.2) -State and legal system3) -The elements of the state:A) –a)-The peopleB) –b)-The territoryC) -c)-Political organization4) - The sovereignty5) - Essential and Accidental Scopes/purposes of the State.6) - The organization of the state.8) - The public institutes.(gli istituti pubblici)9) - The competence.10)- Public officials.11) - Public employee.Chapter Two State forms and forms of government1) -The state forms.2) -The Feudal State.3) -The Absolute State.4) -The Modern State.5) -Participation of the people in the life of the state.6) -The Democratic State and its deviation7)- The Unitary State and Compound State7) -The Federal State.8) -The State and Forms of Government.9) –Republic and Monarchy.10) - Various types of Monarchy.11) - Various types of Republic.12) -The Dictatorship.Chapter Three The functions and fundamental acts of the state1) -The three basic functions of the state.2) -The separation between the functions of the state.3) -Acts of the State in general.4) - Legislative act in general.5) -Law only in the material sense and law only in the formal sense.6) -The executive act in general.7) -Executive act in substantive sense only and executive act in the formal sense only.8) - Political acts and administrative acts.



9)- Classification of administrative acts.10) -The judicial act in general.10) -The judgment.11) -Internal and external act of state.

Chapter Fourth1) - State unions 2) - The international protectorate and colonial.5) -The international mandate and the trustee.

Third Part The Modern State and its structure Chapter One The legislative function1) -The Parliament.2) -The electoral systems.3) -The organization of the parliament.4) -The functions of parliament.

Chapter Two 1)-The executive function 2)-The Government.Chapter ThreeJurisdiction (Somali judiciary system)Annex:Somali Citizenship



Public LawPart One

Chapter OneNorms, Subjects and Objects of Public Law

INTRODUCTION TO PUBLIC LAWSociety and LawIn the study of public law, we must start from the concept of law in general. The law is a social phenomenon. In every human consortium/grouping, alongside other phenomena, such as religion, customary, politics, achieve the legal phenomenon; so you can say that the terms society and law are interdependent. As the society develops and differs or varies also, the legal phenomenon assumes characteristics more and more precise and complex.Law is used to refer to a set of legal rules or norms (norme giuridiche) of which are for the members of a society, norms that differ by the norms of any other nature (of religion, customary, politics) in force at the same time in that same social grouping. Legal rules are also rules of human conduct, but unlike the rules of the religion and customary, have the character of mandatory in the sense that the recipients feel the imperative obligation of compliance. The prevailing doctrine believes that the peculiar character of the legal rules is the sanction, which may be direct (such as the penalty imposed on the offender for breach of the criminal norm) or indirect (such as the obligation to return or/and compensation or nullity of the act, in many cases of violation of the rules of private law and public).Often the sanction is identified only as a psychological pressure exerted by the society on the recipients of the norm or in fear of a reaction of the social group against any violator of the norm.The legal systemThe law consists of legal norms that contribute to the formation of a system; and also make it possible to achieve the different purposes for which was made up. Each social consortium/group once it has reached a stable organization, by the very fact of constituting a system, progresses of an institution, that is to say a body, and that per se, in its completeness, legal. Under this statement, we are able to establish an equation between law and institution. We can thus define legal system every legal entity which has gained its own organization more or less stable and thus its own internal order. Between the legal systems, the more the perfect and even the most complex is the state system.Starting from the notion of the law, we have come to the legal system and soon we will come to that of State.



Law, legal system and State are the three facts or evidences around which summarizes or sum up the concept of public law.To better identify the objective of our study, it is necessary to proceed to the establishment of the concept of public law. The sources of Somali legal system Every legal system has its own rules on legal production of sources of law: For the purposes of systematic classification it is necessary to bear in mind the provisions of article 1 of the provisions of the law in general premises to the Somali Civil Code in force. That article lists as sources of Somali legal system:

a. laws;b. regulations;c. customary

The law: it is among the main written sources which constitute the legislative measure enacted by State legislatures.The law comprises a general, abstract and command, applicable to all the partners (i consociati) or to a broad category of them. Generality, novelty and abstraction are its distinctive character. The law expresses what must be, given certain circumstances, the conduct of the State, its bodies, moral authorities (charities) and citizens.The expression "law" used in article 1 of the Somali Civil Code as the first source includes two distinct categories of laws, having different nature and effectiveness: the constitutional laws and ordinary laws.Primary source of the Somali legal system is the Constitution of the Republic, prepared by constituent Assembly, promulgated by the President of the Republic. It is the fundamental law of the Republic whose faithful observance is mandatory for all the persons subject to its sovereignty.Laws and provisions having the force of law shall conform to the Constitution of the Republic and to the general principles of Islam. (Article 98 of the principle of rigid Constitution, and Article 2/3 of the Federal Constitution)The same orders of effectiveness are the laws of revision or integration of the Constitution which are approved by the National Assembly (Article 104 of the Constitution). These laws can neither, however, change the shape of the republic or democratic state nor limit the rights and freedom of man and citizen, enshrined in the Constitution (Article 105 Const.)The expression of formal ordinary laws means all laws passed by the National Assembly on the proposal of the Government, a Member of Parliament or 10,000 voters, and promulgated by the President of the Republic (Article 60 and 61 of the Constitution).For the approval of the ordinary laws by the Assembly is sufficient by a vote of majority of those present (Art 55 Constitution).



After approval of the Assembly and the promulgation of the Head of State, the laws are published in the Official Bulletin of the Republic (Faafinta Rasmiga ah ee J.Federalka Soomaaliya) so that all are becoming aware of the laws Article 61 Constitution).Equivalent to the ordinary laws are, the acts having the force of law, the decree-laws and legislative decree (delegation of legislative power).

1. Decree Law (decreto-legge article 63): In case of urgent necessity the Government may issue temporary provisions having the force of law. Such provisions shall be issued by decree of the President of the Republic, on the proposal of the Council of Ministers, and shall, within five days, be presented to the Assembly for conversion into law.



2. Legislative Decrees/Delegation of Legislative Power (decreto-legislativo art 62): The Assembly may delegate to the Government the power to issue, on specific subjects or matters and for a limited period, provisions having the force of law. In delegating authority, the Assembly may establish the policy and issue directives. Provisions made under a delegated power shall be issued by degree of the President of the Republic on the proposal of the Council of Ministers. The decree-law or the legislative decrees that do not match the conditions of validity 'described above are desperately null; and its declaration of ineffectiveness is referred to the Supreme Court constituted in the Constitutional Court (Article 99 Cost.) The regulations of the state are of legal rules enacted by the Executive Branch for the execution of the laws or to the organization of the administrative offices are enacted by the decree of the head of State (Article 85 and 81/2 Const.) example: regulations of the organization of the Council of Ministers or regulations of the organizations of the Ministers etc. In both cases, the regulations have effectively subordinated to that of constitutional laws and ordinary laws.There are various types of regulations. The regulations can be divided into two categories. We have on one side, the actual regulations, which commonly called public regulations, and, on the other hand, the internal regulations, circulars, instructions etc. These acts (the internal regulations) do not have effect in respect of the legal system of the State, but are within the scope of a particular entity or body. In this respect we do refer to the example of the rules of procedure of the Assembly, the regulations that predispose the functioning of State public transportation or rail etc, while the public regulations must be published because, as a source of law, they are resulting rights and obligations for individuals, so it is necessary that these become aware. However who can demand the observance is only the institution for which they are issued, mostly the public administrationIn addition to the regulations of the State, there are also regulations for public entities other than the state, issued in the exercise of autonomy granted to them by law (Article 85 Constitution, Regulatory power or Power to Issue regulations).The disability or invalidity of the regulations contrary to the Constitution, to the ordinary laws or other regulations is declared by the Supreme Court (Article 94 Cost.) The third source of the legal system is formed by Customary Law: unwritten rules of law, which put in place directly by the people. According to the doctrine, there are two necessary conditions for the existence of customary rules:

a. General behavior, uniform and old, spontaneously followed by the communities (objective requirement);

b. The general presumption that accompanies such behavior of its obligatory or compulsory nature in legal terms (subjective requirement).



The legal effect of custom is subordinated to both the laws (ordinary and constitutional) and the regulations; so it is not permissible or eligible a custom contrary to law or regulationsPublic Law and Private Law The distinction between public law and private law is the greatest in the field of law. However, it should be noted that the law is a unitary phenomenon, which has the same fundamental characteristics: so, when the law distinguishes public from private law does not create any contrast between the one and the other branch of law, nor will determine two sealed compartments, among which there can be no communication. The fundamental elements of the law has indeed made by some scholars claim that the distinction of public law and private law is not admissible, and that the law can be divided only into various branches for teaching needs and division of labor among its interpreters (divisione di lavoro). Indeed, despite that, the law to be conceived as a unitary phenomenon, the two great spheres of public law and private law correspond to two different needs of social life (corrispondono a due diverse esigenze).But, if the need to distinguish the two spheres from each other is recognized by the vast majority of lawyers, there is no agreement on the criteria according to which the distinction must be made.Since any rule of law does not reveal to belong in public or private law, it was thought to use as criteria to make the distinction, the beneficiaries/ recipients of the norm or the relationships governed by the rule or the activity disciplined from the norm.Starting basis for the beneficiaries of the rule, it is concluded that public is the law referring to persons who have authority and supremacy, and private is the law referring to private individuals who do not have such authority ', or even possessing it, do not use. So, public is every law headed/governed to the State and the Municipality. These are establishments with imperium against private parties, while it would be a private is the law which refers to the private parties, which does not have supremacy over other parties.The same reliefs that we have brought to light, meets the criterion referring to relations governed by the rules: you cannot qualify as a public , and thus governed by public law, the relationships between subjects situated or placed in unequal conditions, of inferiority and, respectively, of superiority, and private, and, therefore, governed by private law, the relations between equal subjects. In the end, the method consists in tracing the nature of the activity 'governed by the norms; The nature of the norms postulates a sharp distinction between public activities and private activities. It would be based essentially on the characters of the interest pursuit by a particular activity. In other words, for there to be public activities should be that it was put in place to achieve a public interest, while, in order to concretize private activities, would be sufficient to create a private interest. The public interest is there or occurs whenever the state poses a particular collective interest among its purpose.



According to this theory, the distinguishing criterion would be given to the nature and importance of the interests protected by the social norm, so you would have: public law, when the norm takes into account the general interests of society, and private law when the norm reflects special interests of individuals. The distinction mentioned above is the most followed in doctrine. However, please also note that if the distinction between public law and private law gave rise to significant doctrinal disagreements in the field of state legal system, even more vivid are the contrasts within the other legal systems, such as church system and international system. Public order (Ordine Pubblico) This is an important idea, for example: the Somali legislator often recalls; For example: the provisions of the Somali Civil Code stipulate that "under no circumstances shall the laws and acts of a foreign country, the laws and acts of any institution or body, or the private dispositions or conventions, have effect in the territory of the State when they are contrary to public policy. So the provisions of the Code also stipulate that the cause of the contract is unlawful when it is contrary to public policy. Such claims are not limited to the civil code, but also and largely in the penal code, which dedicates the entire fifth title of Book II to the repression of crimes against public order. Yet, in the code of civil procedure, for example, the code provides that one of the conditions for a foreign judgment to be declared effective in Somalia is not to be against the Somali public order.

The notion of public order is subject to public order and international public order. Public order is broader because it embraces all norms that are inspired by a general interest, all imperfect laws. The concept of international public policy calls for a narrower scope in that it only encompasses those norms and legal principles that are so intimately connected with the ingrains of the state society, almost to be the basis of the state of affairs. These norms and principles cannot be offended either by foreign laws. Thus, for example, the provisions of the Italian/Somali Civil Code invoked to regulate family relations between foreigners their national law, foreign rules set up the divorce between the two spouses cannot be applied by the Italian judge, as contrary to the principle of ' Indissolubility of marriage, but the Somali judge can. This principle is considered by the Italian lawmaker of international public order.The plurality of legal systems (La pluralita’ dell’ordinamento giuridico)Once is clarified the concept of law, it results or resolves in the legal system, and any system corresponds an institution. We are to see that the institutions are manifold. When you think the legal system, it is done by referring, of course, for the state system; and so you trait to see the State the only possible legal system. An examination more depth shows that, alongside the state, live other social groups and each of which has elements that materialize an institution, and, therefore , also a legal system. Not all legal systems have the same structure, it all give rise to entities forming each a complete, closed, self-sufficient in terms



of social and legal; legal systems are many and different from each other as there are social bodies that materialize. The plurality of legal systems (La pluralita’ dell’ordinamento giuridico)Once is clarified the concept of law, it results or resolves in the legal system, and any system corresponds an institution. We are to see that the institutions are manifold. When you think the legal system, it is done by referring, of course, for the state system; and so State is the only possible legal system. An examination more depth of reality shows that, alongside the state, live other social groups and each of which has elements that materialize an institution, and, therefore , also a legal system. Not all legal systems have the same structure, it all give rise to entities forming each a complete, closed, self-sufficient in terms of social and legal; legal systems are many and different from each other as there are social bodies that materialize. The legal systems can be divided in original and derivative.

a. Legal systems are original: the international system, and State system and the system of the Cattolic Church; they have their own autonomy and not repeat the foundation of their social structure by any other system.

b. Legal systems are derivative, however: the system of a particular union of states, compared to the international system, the systems of the City, the Province or other public body similar compared to the State system, as such those systems do not have their own autonomy, but repeated the validity' of their legal structure by more 'inclusive legal system in which they are contained.

The legal original systems may not recognize each other: so, a State could consider its system legal, and just deny that character to other States or at least to some of them (for example, the systems of the newly formed States, since it has not yet recognized). Obviously , this judgment of illegitimacy of the other systems would have value only for the system or the State that puts it. Out of it would not have any relevance. So the legal system not recognized neither cease to be legal nor lose their effectiveness as part of the community organized. According to the principle of exclusivity, each system is free to recognize or deny the legal character of the other systems. It is an inherent sovereign power possesed, not an obligation. In reality original legal systems or States recognize each other. So, for example, each State does not consider, as a rule, their system as the only system existing, but admits the existence and recognizes the legality of the legal system of other states, like international system, and, often, even systems of the Catholic Church. So, among the various systems are formed relations. The constitution of the legal systemWhen it comes to constitution, it is common to refer to the constitutional charts that are now being found in almost all states; It is for more than one to think that there is only constitution where it has been elaborated a written constitution. Please note that the term constitution is assumed in two meanings: one formal and the other one material.



a. In the formal meaning, it also alludes to the document or to the law in which the constitution is expressed (for example the Somali Constitutional Charter of 1960);

b. In the material meaning, it indicates the structure, the actual organization assumed by the body. Constitution in the material sense and constitutional law are considered equivalent concepts of the doctrine prevalence.

Legal powers And Public powersLegal powers (Poteri giuridici)Remarkable difficulties' met the doctrine in the attempt to clearly differentiate the powers and legal powers from the subjective rights.Legal powers have thus been defined: the power of will attributed to a subject and generally addressed to all the objects/matters; As subjective rights: the power of will attributed to a subject and addressed to a certain object/matter. So, the common note between legal power and subjective rights is represented by the power of a person's will to carry out an act; the differential note is the content of that power. The subjective right always recommends a concrete legal rapport, and plans, an individual's claim to another individual;Power, on the other hand, does not present a specific object, and does not materialize in a certain claim, for example for example the state has legislative power, but this power does not resolve itself in single claims of the state to citizens to observe the laws; these claims will arise only when a certain law is enacted, forming the concrete legal relations between the State and the citizens, the basis on which the state will have the subjective right to demand compliance with the law and the citizens the duty to observe it. That’s how it's talked about in the field of public law: of legislative or administrative powers or powers of the State; of the punitive power and police of the state; of the regulatory power of the Municipalities, and, in general, of public bodies. On the other hand, also in the field of private law this concept is accepted: eg: we speak of parental authority, of marital power, of power of the employer on service providers, etc Public powersthe powers can be public and private. Public are all powers that relate to public-law relations. In this category, the power of government of the state, which is the highest power in the state, can be considered in the various aspects in which it is manifested: it can be legislative, administrative, judicial, etc. It is also possible for the public to have the auxiliary members of the state, that is to say, all those public and private entities that carry out activities that are complementary or similar to those of the state (such as Regulatory power of the municipalities; the administrative power of a private dealer of a public service).The power of the state government (la potesta’ di governo dello Stato) and the public authorities of state auxiliary bodies (le potesta’ pubbliche degli enti ausigliari dello Stato) are



often called powers of supremacy, in order to indicate the position of subordination in which citizens find themselves in relation to their exercise.The public powers define certain common features. They are:

1. Inalienable and un-transferable from one subject to another, for example: the state may delegate to a body or private the management of a public service, while remaining the holder of the relevant power.

2. Irremissibly (irrinunciabile), in the sense that their holder cannot be able to determine, will not be able to determine, by act of his own volition, the loss. Thus, for example: the Municipality, to which the law recognizes a regulatory power for certain subjects, may refrain from issuing that particular regulation but may not refuse its relative power.

3. Imprescriptibly is that unlike the subjective rights, whose lack of long-term exercise in the time, to place, for rule, loss of the right. For example, the power of the citizen to engage the tribunals or the power of the citizen to participate the elections does not fall for his lack of exercise for a long time.

The doctrine has proposed various classifica-tions of public powers. The most important group of public powers includes the so-called public functions, which is, the public powers that the holder does not for an exclusive interest but for a third party’s interest, usually for usually for the undifferen-tiated interest of the community.This can be assessed in the various aspects in which it manifests itself: legislative, administrative, judicial, fiscal, military, etc.The powers of the state's auxiliary bodies are also public: that is, of all those public bodies and individuals who carry out activities complementary or similar to that of the state, for example, the regulatory power of the municipalities, the power of the a private dealer of a public service. Thus the public power of the State is reconnected, the regulatory and administrative power of the Municipalities, the electoral power of the citizens, etc., the public powers pertaining to the State and its auxiliary bodies are, for the most part, functions (legistative function, executive and judbbbicial).Public subjective rights: The most exact definition of public subjective rights seemed to be this: a potential for a concrete legal relationship connected to a public function. On the basis of this definition, it would appear at first sight that holders of obvious public rights cannot be the State and public bodies in general, since whenever they act they would not otherwise exercise their general power and would not give life to individual rights.On the basis of this definition and bearing in mind the classification of the Italian author (S. Romano), we can identify numerous categories of subjective public rights:

1. The rights of personality, also called individual, include the following sub-sections:a. State rights, that is, rights to the quality of a citizen, a person governed by

public law, and so on.



b. The rights to distinctive signs of personality (such as rights to name, flag, city title etc.

c. The rights of one's own person, such as the right of local authorities in their territory, etc.

d. "Freedom of Rights", for example belong to this category of rights, the rights of self-employed, religious, press, meeting, association, etc.

2. The functional rights which belong to the people covered by the public functions, as they have the right to be invested in such functions. It is, for example, a functional right, the right of the one who was elected President of the Republic to be entrusted with the exercise of his duties; as well as the functional right of the same person to retain the office of the Head of State throughout the term of office. A very important category of functional rights is constituted by the political rights of which are citizens. They confer on their holders the right to participate in the life of the statutory legal system ( dell’ordina-mento giuridico statuale), often becoming organs; thus, the active and passive electoral right, the right of petition; and so on.

3. Public service entitlements: which imply the rights of the public service holder to a particular benefit to that inherent (example the right of the State to taxes, military service, etc?

4. Real public rights, for example: state or public property rights; State rights on others' things and so on.

5. Public monopoly rights: among others, for Somali legal system, tobacco monopoly and so on

Subjective weakened (faded) RightsNext to perfect subjective rights, arise other rights whose existence and protection are not guaranteed by the legal system, by meeting certain limitations, for this reason are classified as subjective weakened rights. It is believed that these rights take on two different qualifications.The typical example that can be inferred on the subject is the administrative concessions that are conditional on the discretionary decision of the public administration to revoke it for reasons of public interest. And you can also take the example of the right of the individual to move to any part of the territory of the State: this right could be limited for reasons of health, public safety or other general interest.The cases described so far explains the category of rights which arise weakened: they would not be very different from cases in which the conditioning is not implicit in the nature of the relationship itself regulated, but occurs at a later time, for reasons supervening of general interest, not provided for by the legal norm regulating the same relationship. On this latter type of rights, the most important example you would in the subjective right of private property was rise perfect, but at the expense of which the State or other public bodies may



in the course of time, proceed to expropriation for public utility '. In this and similar cases, it would be in the presence of rights which may subsequently faded or weakened.The interests of public law (Gli interessi di diritto pubblico)The legal norm is put in place in the direct protection of the public interest, without the individual interest is taken into particular consideration. It is possible that the individual has a particular interest in this legal norm to be observed; and this is constituted of two elements: the existence of a norm and the existence of a specific interest. However you can affirm that in the presence of a legitimate interest (interesse legittimo): the legitimacy to seek compliance with a norm was made for the protection of the general interest only; The private interest would be guaranteed only as coinciding with the general interest protected by the norm. So you will have the interest protected occasionally. In this regard, we can think the rules that establish the norms related to the admissibility and the procedure in competitions for civil service jobs. Among the legitimate interests may also be included in the rights of weakened: their owners after having been deprived may have a specific interest in that to be established whether the rules on termination of those rights have been observed by the administrative authority. The duties and public burdens (I doveri ed oneri pubblici)As opposed to individual rights are the duties; as there are public rights so there are also public duties. This name is attributed to the duties attached to a public function, for example, the duty of the public employee to exercise with capacity and zeal in his functions; the duty of the citizen to go to vote; so on. Distinct from the duties are the burdens. You have a burden when the legal rule does not require a person to take a specific action, but states that the non-fulfillment of it will generate 'the consequence of losing the subject inactive a utility’ or advantage. For example: if you have the burden to produce a certificate to obtain a public performance, the lack of the certificate does not constitute breach of duty, but results in damage to the person.The public duties may be classified in the same reason of the public rights. So we have liked this:

a. duties of personality, such as the duties directly related to the quality 'of the citizen'b. Duties of function for example, the political duties, such as the citizen's duty to

exercise the function of elections.c. Performance of duties such as the duty of the state to provide public education, and

the duty of the owner to deliver the item legally required.d. Duties of monopoly such as the duty of citizens to refrain from any action

inconsistent with the monopolies exercised by the State. Even public duties, such as the rights, are not transferable, and must be complied with in personal and not in the middle of represented.

The subjects of the law (I soggetti del diritto)The legal system is animated by his subjects, which are essential elements of the legal system. Each system has its subjects, for which the assessment of the concept of subject



would require an analysis of the content of the various legal systems relevant/related to the public law (international law, legal system of the Church).Contact Our purpose is to illustrate, particularly, the domestic or internal public law, which is State law. Then we will examine what characteristics have the subjects of the state. In that order, it is usual to compare the concept of subject to that of person. According to the law, what does it mean to be a person? Being a person means having rights and powers, correspondingly, of duties and burdens/charges. The subject, as a result of the sphere of activity around it create norms bearer of the powers, rights, obligations, or charges, will possess its own legal sphere into the state system. For the legal system of the State, people are first of all individuals (persone fisiche).In fact, a fundamental principle of any modern state according to which the personality is attributed not only to the individuals who make up the people (citizens), but also the foreign, the subjects and citizens of other states, as well as' stateless persons. Many institutions are also subjects, whether they are belonging both to the State and foreign. In the field of public law individuals do not have a particular importance: in fact when they take a legal form (for example by acting as citizens, as officials) they do not become public persons.Public Legal Persons (Le Persone Giuridiche Pubbliche)Public legal persons, being legal artificial creations, are in the mode' themselves of their birth and their target on the grounds that the law ascribes to public law or private law. The doctrine is labored much to determine the criterion for distinguishing between public legal person and private legal person/entity. Contact Without enumerating the specific solutions proposed in this regard, we recall that one of the current most followed is the criteria of the purpose (criterio dello scopo). The legal person finds its basis, its units and then its own organization, the element of the end to be achieved. As in the case of this criterion, public entities are to be defined: Firstly by the State, which represents the legal system in its units, and it has the fundamental purpose to treat the interests more general;Secondly legal persons are planned to operate as auxiliary bodies of the State. The auxiliary bodies fall (rientrano) within the State, which communicates them the public character. Private legal persons are established for the purpose that, before the State, is merely lawful. As a result, even legal persons that declare or state public utility purposes, remain private, if their activities is not' considered by the state as integrative function of its. In conclusion: under the legal system of the state, you can 'say that a person has legal public nature, when there are two requirements:

1. the activities' explicated by the body is considered by the state as integrating of its activities;



2. This function is particular or specific for the entity, and thus justifies or explains the existence of the legal person.

Public institutions without personalityLegal entities represent a types of a group more broad denominated doctrine: public institutions. This name classifies any social institution, regardless of its organization and creation, which has the essential and specific purpose to perform an activity useful to the state. If the institution has received from the state attribute of the subject of law, we will have a public legal person: legal persons are the Regions, Districts, Local Governments, the University, the Foundations of Public Charities, and Public Banks etc; If however, this attribute or quality does not appear, we will have the public institutions without personality '(such as: the Electoral Body, Schools etc)Public institutions without personality are numerous in the modern State legal system; since 'the creation, organization and activities' can 'be varied, so it constitute one of the most' controversial in doctrine, their classifications and differentiation. We shall only mention the two most 'important subspecies: the organs and institutions. The organs constitute as an integral part of the structure of the state and are an auxiliary bodies and do not hold their own powers, rights and duties: the organ identifies (si immedesima) itself in the physical person of the official who charges his activity to the institution where the organ belongs. Organs are: The Ministers, the Police, education authorities, the Presidency of the Republic, etc. Institutions are however, many state schools, museums, libraries, and so on. In some institutions, individuals in charge, even if mainly perform technical activity, perform also to a lesser extent public functions, so this public function will be attributed to the State: for example, the teachers of a State schools while attributed to them only the same teaching which they provide, but it is referred to the State as public function (administrative function), the disciplinary measures imposed and degrees conferred degrees to students. Conversely, in certain organs, individuals responsible for a public function, perform however alongside their function technical activities, they will exclusively be charged; for example: the Legal State (le avvocature di Stato), and the offices of the Civil Engineering Department, as part of which, legal opinions or technical projects , formulated by these employees, their activities constitute 'personal but not public functions.Public institutions are still divided in: State (if they are part and parcel of the structure of the State) and auxiliary of the State (if somehow appear distinct from the State and supported by his organization, such as, for example, the organs and institutions of Communes (Local Government) Classifications of Public Legal EntitiesThe public legal entities/person may be divided in two basic types: Corporations and Foundations

1. Corporations are public legal persons that have among their elements of individuals.



2. Foundations are public entities that consist of assets (assets, grants perpetually assigned)

The first (corporations) called also associations, have for its object to satisfy or fulfill the peculiar interests of their members; the second (foundations) also called institutions, directing their assets to satisfy or fulfill their interests of individuals outside the institution; Public Corporations are: the State, the Regions, the districts, the municipalities; Public foundations are: public institutions of charity.Corporations can be in:

1. necessary, if membership is forced to it (State, local authorities); 2. voluntary basis if such membership is not forced (unions)You can finally distinguish entities that the State has the obligation to establish (example: the districts) from those whose institution is optional status (for example: a charitable institution).To conclude this quick review of public legal entities, we should finally mention a category of institutions recently coming in to light; semi-public bodies. Government controlled bodies are nothing more than public entities; It is to explain that most semi-public bodies are created in State structures and for general purposes.

Relationships between public legal entities and the stateWe have made it clear that most public legal entities move in the orbit of the state and are linked to it in various ways. Indeed, it can be said that all legal persons excluding the state and foreign persons are responsible to the state: now what is the relationship that intercedes between it and the people themselves?Public juridical persons cannot be considered as state organs. In fact, the organs of the state do not have their own juridical existence, not their own powers, not their own purposes. Instead, public juridical persons have their own personality, as they acquire it through the act of the state (recognition) which qualifies them as lawful subjects; they have their own purposes, they have their own powers, but derived from the recognition of the state. It is a relationship different from what intercedes between the state and the organs of his administration, which are connected with each other and respect the state from a hierarchy constraint. This relationship arises from the act of recognition (conferring legal personality).Political capacity and Autarchy Public legal entities are subject to law and the powers, rights and duties that they refer to and they assume their capacity. The capacity of public legal bodies can be manifested in two different axes, depending on whether it interests with the sphere of powers, rights and duties of a public or private nature: it differs, thus, a capacity of public law (also called political) from a private (also civil) capacity. Thus, for example, the municipality that purchases a building from a private shows only, its civil capacity; while when it grants to a private the use of a public area, it expresses its political capacity. A specific form of capacity of public law is autarchy, a legal condition that invests the auxiliary legal persons of the state, and



which can be defined as: the ability of a subject to govern his own interests even if they concern a person who is superior to him (primarily the state). Thus, it is considered self-governing entities (enti autarchich), in the Somali legal system, the Regions, Districts, Municipalities (corporations), Universities, Public Benefit Institutions (Institutions): these entities have the capacity they are conferred by the ' State legal system, to govern, autonomously, by their own interest, even though these entities are closely connected to the state.Autarchy presupposes a hierarchy, subordination of a subject for the implementation of interests that are proper to the inferior agent, but also pertinent to the superior subject and essential to it.The concepts of political capacity and autarchy are not peculiar to legal persons; they may also be in the natural person. This dual condition is found in all cases where individuals manage their own interests in their public sphere (in una loro veste pubblica- ex citizens, public officials) and at the same time exercise a public function; for example: it is stated that the citizen manifests his political capacity and his autarchy in the exercise of popular action or in the exercise of the right of petition; likewise, we speak about autarchy of parliamentary chambers, government, etc. From these examples it comes out that the concept of autarchy is not exclusive to public legal persons but it also applies to natural persons, even though public legal persons individually or grouped together constitute organs and institutions of the state. We will study more than a concept very similar to that of autarky, the concept of autonomy, defined: the capacity to issue legal norms distinguished from those of the State and having the purpose of providing for the organization and functioning of the emanating subject. Public legal persons, especially those that appear to be auxiliaries of the State, possess at the same time the two characteristics of autarchy and autonomy; Independent from the fact that their internal structure is corporate or institution.Objective facts in general: A complete view of the legal system does not only include legal norms, subjects and objects of law, but must also take into account other elements that make the legal productivity of the norm effective. The law also takes into consideration the events and facts that are continuously produced in real life, both as a natural phenomenon and as effects of human activity. The legal fact is: any event to which the law connects a legal effect. The legal facts can be distinguished in Objective Legal Facts and Subjective Legal Facts. Objective legal facts are natural facts, also called legal facts in the strict sense;Subjective legal facts are facts that depend on human activity. Among the objective facts, we limit ourselves to mention the TIME, but no less general application in the juridical world have the space and the measure of things (extension, volume, weight); As for time, it is known how the measure of it is determined by the Gregorian calendar The Gregorian calendar is today's internationally accepted civil calendar and is also known as the Western



or Christian calendar. The Gregorian calendar is the most widely used calendar in the world today. It is the calendar used in the international standard for Representation of dates and times. It is a solar calendar based on a 365-day common year divided into 12 months of irregular lengths. 11 of the months have either 30 or 31 days, while the second month, February, has only 28 days during the common year. However, nearly every four years is a leap year, when one extra – or intercalary – day, is added on 29 February, making the leap year in the Gregorian calendar 366 days long. The days of the year in the Gregorian calendar are divided into 7-day weeks. The international standard is to start the week on Monday. However, several countries, including the US and Canada, count Sunday as the first day of the week. However, the first day of the week in Islam is Saturday as the Friday is the day of rest (after six working days) or Holiday which also means the holy day and also most important and sacred day as per Muslim faith, because it is the day of assembly or congregation (Friday prayers). The adoption of this in the law does not result from any explicit provision, but is in charge of all the legal provisions, which contain any reference to the civil calendar (eg: those on the financial year, on the judicial calendar and on the academic one). As for space, each point of the Somali territory is identified by the name of the Region, of the Province, of the Municipality, and of the street in which it is located. The denominations of the region, of the Province, of the Municipalities are determined with normative act (constitutional law for the regions, ordinary law or legislative decree for the provinces and for the municipalities). The circumscriptions that determine the competence of single authorities is established by the laws relating to the various branches of administration. The circumscriptions of the Regions, the communes, and the provinces are established with constitutional laws (regions) or ordinary laws (provinces and municipalities).As regards to the measure of the extent and weight of the bodies, a complex legislation has intervened, which finds its source in some international conventions. By means of these, almost all the States have committed themselves to adopting a common unit of measurement and weight, based on the metric decimal system; the importance of legal measurement systems is ensured with a special administrative service of supervision and control. Equally, the monetary unit of measurement, the external composition of coins, is determined in legislative terms. Special administrative services provide for the coinage of coins and the issuance of the paper-money, as well as for the supervision of the monetary police.Chapter twoPartition of public law The public law is a very broad field, which includes objects of investigation very complex and diverse. A first large partition covers the whole public law and is direct to distinguish the internal public law from the international law. We have seen that, usually, when it refers to public law, it is meant the law of the State, the law concerning the internal system of the State. But in the real world and also legal, States are several; and for the usual fact of their joint existence under certain similar conditions of social life and legal, they establish



between their legal relations. Therefore, any State as a member of the international community directs (indirizza) part of its legal activity relations with other States.This branch of law (international) includes rules that are put in place not only by the will of a State, but by the will of more States, manifested by international agreements. Beside the international agreements aimed at producing norms (standards), there is the phenomenon of international legal customary from which springs out also of legal norms. International laws encompass or cover a legal system in its own law, completely autonomous with respect to the State legal system, and like this one of original character, the international law, can be defined: The law of the international community or the law which regulates the relationship between the States and other sovereign bodies assimilated to them.

In order to understand well what is the position of the State law (diritto statuale) and international law, we need to see the data that prove the distinction between these two branches of law, essentially in individuals, in the rules and relationships. The rules of international law does not oblige citizens of the States that is addressed, but only states and similar institutions as legal inter-national persons. Subjects of the internal law are the natural persons (persone fisiche) and legal persons (persone giuridiche) operating in the State orbit; while subject of international law are the States and other entities similar to, like for example the Holy Venue Vatican. Finally, relationships falling into either of these normative areas are different. The internal law regulates the relationship between the individuals (individuals and legal persons) and between legal entities and the State. For the object of international law concerns only the relations between the states and entities assimilated to States. Next to the international public law exists international private law which, despite its name, is part of the internal public law of each State?Constitutional and Administrative LawThe constitutional law is part of the law of the State in general which represent the fundamental structure: in other words, is identified with the supreme legal system or law of the State. The constitutional law make public or reveal the existence of the State, which begins to have a life when it has Constitution. This law shape (da’ forma determinata) the state; establish (create) and connects its elements that contribute to its structure; circumscribes or limits its sphere of effectiveness (success); state the purposes (indica i fini) or the fundamental interests, as well as the powers, the rights, and obligations attributed to different subjects; organizes its government system .The constitutional law is turned to regulate:

a. The formation, organization and action of the constitutional bodies;b. The legal status (condizione giuridica) of the Head of State;c. the appointment of the Prime Minister or the Ministers and their activities as organs

of the government in their relation with the Head of the State and with the Legislative Assemblies;

d. the constitution and the guarantees of the judiciary organs;e. the contributions of the various functions and the various constitutional organs of the

State;f. The relationship between the State and citizens.

The administrative law can be defined as part of the legal system which has the object, the organization, the means and forms of the activity of the public administration and the



resulting legal relationships between the public administration and the other parties. Underlying the concept of administrative law (alla base del concetto amministrativo) is, then, the concept of the public administration. And public administration can be defined as: the concrete activities with which the State pursues their own interests, in implementation of the law within the limits established by the law. We must note, however, that the administrative law does not include on (comprende) all the law related to the administrative function of any organ. The activities, although administration, exercised by state organs other than administrative, are not covered by the administrative law. For example, it is included in the constitutional law administrative activities performed by legislative not only when are exercised in the form of law, but also when it is expressed with acts of the single rooms. Likewise belongs to the judiciary system (ordinamento giudiziario) and to the procedural law, administrative activities performed by judicial organs. Fall within the administrative law regulatory and judicial activities performed by executive bodies The action of the public administration is so vast and complex that stretches also in private law relationships; relationships that should be strangers to the field of public law in which it usually operates; for example, the government can take rent a building, purchase of goods or sell the products of its assets. In these and similar cases, is not the case that the rules of private law, which consider the relationship set up by the government, become part of the administrative law. On the contrary it happens that the government will submit to the rules of private law (civil, commercial, industrial), which do not change, however, their peculiar characters.

Waxbaa ka dhiman Jabtarkaan Criminal Offense.5) – Procedural law6) - Labour law and Trade Unions7) – Financial law

Chapter Three Sources, Interpretation and Effectiveness of the Public Law The Sources of Law (Le Fonti del Diritto) The problem of sources does not assume a particular aspect: it is a basic argument/dispute which is behind the study/revision of law, and therefore, does not belong to a specific sphere of law. As there are legal norms, there are also sources. Each legal system has its own rules on legal production, because without them, and, without their practical application, the legal system would not take place, would not be completed. The rules on legal production can obviously change over time, corresponding to the mutations of the establishment of the entity, which is inherent or inbuilt in the system. The sources remain (stanno) the origins of the legal system. Speaking of the sources of law is the same as referring to the establishment of the legal system.The sources of legal norms are those facts (fatti) to which the legal system is linking, through appropriate norms, the effect to create, modify or extinguish legal norms.



From this definition we can assume that the sources are simple facts. Each legal system has its own rules on legal production, because without them, and, without their practical application, the legal system would not arise or take place, would not be completed. The rules on legal production can obviously change over time, corresponding to the mutations of the establishment of the entity, which is inherent or inbuilt in the systemThe law The law is the principal among the main written sources and constitutes the normative act emanated by the legislative bodies of the State. As such, it has various forms of requirements that are established by the rules (norma).The law contains a general and abstract command, a common rule of life applicable to all citizens or to a broad category of them and an undetermined number of similar cases and indefinite. The law expresses what should be the conduct of the state, its legal entities and citizens; it must be recognized that the criteria of generality and the abstractness constitute the foundation of any definition of the law.Generality and abstractness are precisely its distinctive characteristics.It is general not because it is intended to determine the behavior of all, many or few, but intended to determine a category abstractly determined, in all similar cases that will occur in the future. Newness (la novita’) is another requirement of the laws; in the case that the law places norms that did not exist before , or when repeated materially a provision already in force , it changes the source and , therefore , renews. It is worth recalling some basic distinctions. A first distinction is the one which arises between: constitutional laws and ordinary laws.The sources of law can be immediate or direct and mediated or indirect.

1. Immediate sources are: A. Formal laws: the formal laws are adopted by the typical organs of the State that,

according to the Constitution, exercise the legislative function. Formal laws capable of being sources of law are distinguished in, according to the process of formation, the following way:

Constitution; Constitutional Law enacted by the Assembly; Ordinary Laws approved by the Chambers;

B. Material laws: the material laws are the measure contains legal rules and are issued, for delegation of legislative power by organs of State other than those before mentioned, in particular:

Decrees of the Head of State of the parliamentary delegation to the Government or of responsibility of the Government in extra-ordinary cases of necessity and urgency;

2. Mediated or indirect sources are: a. The administrative acts: between administrative acts that constitutes an

assumption of fact for the application of the penal provision should be included, the regulations and measures of urgency of the governors (prefects), mayors etc.



b. The international conventions: the international law cannot be a direct source of criminal law, because it rules exclusively States in the relations between them and it does not bind the organs of the state, and its citizens. So that, in order to assume the force of law, the rule of international law must be enforced by law or decree. However, international conventions must be considered indirect sources when criminal law refers to them for the notion of some assumption or condition of applicability of its rules.

Regulations (Il Regolamento)A regulation consists of a legislative measure, which, instead of originating from legislative bodies, it is formulated by the executive authorities and issued, as a rule, by the Head of State. The rules established by regulations have no specific effectiveness of the law, but are real legal norms: for this, they contribute to make up the legal system of the entity for which they issued. The regulations are of great importance in the field of public law; mostly norms or rules arising are directed to discipline the legal public relations. Since the types of regulations are various, therefore, in correspondence to the various species, one must take into account the fundamental distinction of all the regulations in two categories. We have, on the one hand: - Regulations themselves, which are commonly called public regulations, and from the other side: internal regulations, circulars, instructions etc.These acts, unlike the public regulations (al contrario dei regolamenti pubblici) , are not source of State legal system and have no usefulness against the legal system of the State ; but are source and applied only in the context of a particular legal system of an institution to organize themselves. Consequently, these regulations are not sources of objective law of the State, because do not contain state legal provisions; in this regard we can take the example of the internal regulations of the Chambers (regolamanti interni delle Camere), the regulations that predispose the operation of railways, government and military bodies, and so on.The rules do not constitute legal claims (pretese giuridiche) in favor of the individual subjects; and therefore, they are not entitled to sue in the courts to achieve compliance with the orders contained in these regulations. The sign extrinsic from which you recognize the internal regulations, circulars, instructions from public regulations, is that of publicity. The public regulations must be published, because if they are sources of objective law, conferring rights and obligations for individuals, it is necessary that they are aware of these. Conversely , since the internal regulations , the circulars , instructions spring out rights and obligations for the persons belonging in a given institution or office , the acts themselves are directed only to such persons , and , therefore , it is necessary that the acts are brought to the knowledge of them.Sources, Interpretation and Effectiveness of the Public LawRegulatory Power (Il Potere Regolamentare) Starting from the principle that the activities of the institutions and bodies of the public administration department are not all regulated by the law, but leaves to these organs



and institutions a sphere in which they can independently determine their activities, depending on the circumstances and opportunities distinguished in their action; This concrete and particular right (faccolta’) to make rules for their own activities, is called ‘discretion power’. Whenever the law leaves to the administration a certain sphere of freedom, the same administration can always limit its own freedom and that of the citizens by means of a regulation.AutonomyEven the autonomy is a source of law in the proper sense, since the term autonomy authorizes a certain attitude of normative power. While the legislative power and regulation power are exercised and take place in the sphere of the organization of the State, the autonomy instead, is the power of legislation attributed to institutions, distinguished not only from the legislature power, but also from all the organization of the state, as many constituents as legal persons. In the State system does not operate only by entities and institutions that have structure of the state, but also organizations which perform auxiliary tasks or complementary to those of the State, and for that very reason, are public.Autonomy is not up (non spetta) to all legal public persons , but only some of them , which, precisely because of this autonomy , have the ability to issue its own rules of law , having the same effectiveness of the laws enacted by the State and intended to be part of its legal system. The subjects who have autonomy of legislation, are mainly local governments , national and local ( such as: Regions , : the Province , The Municipalities ; the same power can also be up (spetta) to private entities , individuals or legal , if they are placed (immessi) in the exercise of an administrative function (eg. concessionaires of public services ) Autonomy is not a presumed power of the entity considered and it is not even something originating with the entity. The autonomy in question is that of the bodies included in the system of the state, therefore it is necessary to admit that it is legally relevant only, in so far, as the state recognizes it to the body that uses it. The granting of autonomy by the State to a given entity can take place in various ways: sometimes the law can be limited to obliging the entity to issue the rules relating to a part of its order we must now remember the acts, which comprise the norms of the entities with autonomy. A very important category is constituted by the statutes: acts by which emanated by entities on their organization, their purpose, the means to achieve them, the rights and obligations of their components. Another manifestation of the autonomy are the regulations of public persons (regolamenti degli enti pubblici): they can be directed to implement parts of the Statute or to add special local regulations to those contained in the laws relating to the matters covered in the administrative entity. Belong to the latter type: Regulations of Municipal Police and hygiene, and regulations of the municipal and provincial on the use of their respective state property and assets etc. Autonomy can finally turn out (rivelarsi) rather than through unilateral acts, by means of bilateral and multilateral acts. This' occurs in all cases in which two or more 'institutions agree to adjust common interests, to manage a service of common utility to



discipline for the use of common properties. The category most 'important of these acts consists of the collective labor agreements.The CustomaryCustomary law is the most' important of the unwritten sources. The custom resulting from uniform, general and consistent behavior of legal entities, practiced with the belief that it corresponds to a legal obligation. The essential requirements of custom are therefore two:

1. Material, consisting of the constant repetition of the same acts or omissions of the same;

2. Psychological, concerning the cause for which is held that given behavior (la causa per la quale viene tenuto).In the State regulations, the customary law (norms formed spontaneously) is opposed to the law (norms generally imposed by the legislature).

The practice can be: secundum legem (where complete or interpret legislation); praeter legem (where discipline matters not yet settled by the legislature); contra legem (where put rules contrary to those enacted by the legislature);The practice should not be confused with the uses of business (gli usi di affari), which are legal elements that the parts fit (inseriscono) in some contracts or look in certain relationships, without considering that they are obliged to repeat the insertion of the use in the contract.This practice, although not establish legal rules, serves as a means of interpretation, in the silence around the items covered by it; it must be assumed that the parties have tacitly referring to them.So, for example, in the field of administrative law, where acts are prevalently unilateral, should be regarded expressed in them clauses of use even in the silence of the public administration; For example, the concessions and authorizations are always intended made without prejudice to the rights of third parties, even if this is not mentioned expressly. In the modern state, the State legal system is different from the customary law. The customary law is not for the function of primary source, but as a subsidiary source, meaning that the rule laid down generally by the legal system, customary law take effect only when the law will refers, for this, it imparts or gives those Mandatory' and Obligation attributes which are proper for state legal norms.

The rules of constitutional correctness (Le regole di correttezza costituzionale)They have to do with the political conduct (costume politica) and apply to the relationships between those who assume the exercise of public power, determining the behavior regarding the wisdom, diligence to be followed by average type of politician. In regards of the State and its institutions, the rules of constitutional correctness constitute a kind of good manners, which tends to impose loyalty, courtesy to be observed as a commitment of honor, especially in the case of contrasts and conflicts by the supreme institutions. Such constitutional norms of conduct must keep the Ministers and MPs during a crisis of government ministers and the head of state in certain circumstances.



The Interpretation of law in generalThe interpretation is a logical operation, which tends to reconstruct the legislative will, as is manifested in a norm or in a set of rules. The problem of the interpretation arises from any field of law, private or public for which it cannot be assigned to one or another branch. Interpreter of the law can be any person who is the addressee or receiver (il desitinatario) of a particular legal rule (doctrinal interpretation or private)From the technical point of view, typical interpreter of law is only the body or office established and regulated by the legal system for this particular task (legal interpretation). The interpreter uses the true and usual methods of interpretation: grammatical, logical, systematic or organized, directed to ascertain the legislative will. It is well known that the interpretation is the mental operation with which is researching and explaining the meaning of the law. Without this clarification process, would not be possible to apply the rule to the case. To apply the rule of law to the case, it is necessary to ascertain the exact scope and interpret the interpretation of the rule, understood as a substitution of the will of the legislature from abstract to concrete, from the general to the particular, is always necessary. The interpretation of the law does not exceed the usual pattern of application (schema di applicazione) of the rule of law, as the interpretation of the legal moves within the limits of the literal or lateral, logical, and systematic of the expressions used by the legislature. But the activity 'does not stop there: sometimes' the same legislator who feels to advise the need of a specific norm intended to clarify of dubious norm; then we are in front of the phenomenon of the authentic interpretation, Moreover the legislature can predetermine the interpretation criteria, by establishing the means of which the interpreter can further use when it is in vain, exhausted the normal criteria, grammatical, logical, and systematic; or can scale all possible canon or rules of interpretation. The interpretation of a rule of law can 'be made by the same legislative body that has put in place into being, through the enactment of a new law of equal effectiveness. The latter form of interpretation that the has made by the legislative is binding on all recipients of the standard; The process in question is meant for all the laws, because what it is clear to a person, can do not be so for another; the interpreter must not stop at the apparent meaning but must seek the most deep and intimate sense of the provision and the actual scope of it; sometimes it is enough to simply read the norm, because the lexical meaning of the word used by the legislature does not leave any doubt, and excludes any different solution (literal interpretation or word for word) In all three cases, what should apply is always the true and effective will of the legislator. It must, however, warn/advise that this expression does not necessarily mean the intention of those who participated in the formation of the rule, but the end goal of the law, which consolidates/combines what was in the intentions and opinions of the proponents or supporters and is welcomed in the norm itself Beside the cases just examined, there is the so-called analogical interpretation: and it should be regarded as a form of research of the rule of law to be applied to a case not provided expressly by law.



By analogy, the interpreter does not create a new rule, but applies to this case the legal norm governing a similar case, assuming that the legislature would have normally regulated the one in question if he had contemplated. Different is the case of the interpretation made by an organ of the judiciary, which has by law this power: in which case the interpretation called judicial is binding upon the parties once the interpreting judgment is passed final. In the end, even if the analogical interpretation cannot help, besides legal systems have voids or gaps, the interpreter must resort to the general principles, that' the principles that inspired individual rulings of written rules, and that must be respected and applied even in cases that do not have an express .Has 'hitherto spoken of a purely theoretical or doctrinal interpretation of the rule of law: that interpretation is made by the scholar of the norm in the scientific, and not in the exercise of public function. Different is the case of the interpretation made by an organ of the judiciary, which has by law this power: in which case the interpretation called judicial is binding upon the parties once the interpreting judgment is passed final. There are some problems in the field of interpretation that attract the attention of the scholar of public law, let's start with that on the hierarchy of sources.The Hierarchy of sourcesThe various sources of legal norms should not be evaluated separately from one and the other, but should be studied in view of certain relations of coordination existing between them. The set of the sources represent a system that presupposes a hierarchical order. Through this hierarchy, sources come one after the other, combine in ways more different, so you will have only one legal imperative regulating an institution or a relationship the existence of a hierarchy among the sources provides or furnishes general criteria for the interpretation of the law. If it results that the formal law is in the first place, it is necessary to ascertain whether that particular matter, the law has provided a regulation, which must, first of all, be applied. We must take this into account: the hierarchy of sources does not always mean hierarchy of legal norms In this regard, it was told that while the hierarchy of sources has static character, in the sense that no source can prevail over the other one which is on a higher place. The hierarchy between the norms has dynamic character, in the sense that a provision contained in an inferior source can prevail on a norm contained in higher source only if the higher source allows to its derogation. Thus, for example, a provision of a contract of employment, as it is more favorable to the employee, can' take precedence over norms that contained in a collective agreement and norms contained in a collective agreement can take precedence on the norms contained in a law; what ' does not exclude that the law remains as a source, always higher than the collective agreement and this prevails over the individual.General Princile ayaa ka maqan

CompetenceImportant element of any State organ is its competence.



With this term we mean the sphere of activity for each arm or division of the State, and differentiate it from the others; so we can have: material competence or control (competenzaper materia), degrees competence (competenzaper gradi) and territory (compe-tenzaper territorio).We have material competence when each office performs a particular activity ,identified by the nature of the business transacted; for example: the ministry of Education is recognized a sphere of competence in matters concerning the education; while the Minister of Foreign Affairs is competent in matters relating to international relations.We can talk competence for degrees when competence is concerned about powers given to some offices to examine specific business only when these are already' been defined by lower organs; such as: The court has competence or jurisdiction of second degree compared to the causes of which, at first instance, the Magistrate is competent; the Ministry has competence in the last instance than the judgment on the administrative appeals already defined, in opposition, to subordinate bodies (for example by the Region The territorial competence reflects, instead, the territorial area in which the organ carries out its functions; for example a minister has territorial jurisdiction extended to the whole territory of the State, while the President of the region has a jurisdiction limited to the territory of the region, example Minister of Interior has jurisdiction throughout the territory of the country.

Waxaan halkaan ka maqaan Ciwaanadaas Effectiveness of the law in time14-Effectiveness of Space Law15)-Referrals between legal systems

Part TwoChapter One The State, Its Elements, Its Organs Concept of the StateThe State is a historic phenomenon or event that characterizes the modern era. The current international community presents a plurality of society organized, independent of one another and coordinated for mutual relations, which are called States.From the legal point of view, the State can be defined: the political organization adopted by a people allocated on a given territory. With this, the three elements that constitute of the State are: the people, the land, the political organization (or government).The personality of the State is characterized, the attribution to it of the status of legal person; this happens for example in the Somali system, in which not only the Somali State has this qualification, but also foreign States including Italian have also this qualification. In most legal systems, explicitly or implicitly recognize to the State the status of legal person, which is the entity



having rights and duties, both in relation to other States, both in respect of individuals or other entities.



The legal personality of the State assumes various aspects: A. There is international legal personality according to which the State is having

rights and duties into the international legal system example, State A has the right to claim compensation to State B; State C has the duty to give favorable tariff treatment of goods to State D; and

B. There is internal legal personality, for which the State is having rights and duties in the internal. This last personality can take in turn, (puo’ assumere) two aspects: public legal personality and private legal personality, depending on the rights and duties that the State belongs are governed by rules of a public or private. Thus, when the State requires its citizens to pay taxes or to fulfill military service, or must provide or pay the salary to its employees will have legal relationships in which the State is manifested as public legal person; The legal personality resulting attributed to the State, it follows that all the acts done by the officials in the name and on behalf of the State are attributed to the State, so we say that the State legislates, judges, administering, collecting taxes, requires its own loans, pay off debt, etc; it is also said that the State is 'responsible for the acts done by its officials and is' liable to compensate the damages suffered by third parties. As a public legal person the State is a corporation, as it has a constitutive element of plurality of individuals and the corporation is formed for the fulfillment of their interests; it is also a territorial corporation, for the part of the earth's surface that forms the base. Compared to other public entities (regions, provinces, municipalities, public institutions or charitable assistance, etc.), the State is differentiated by its sovereignty ':while those are holders of public powers conferred by the State and enjoy it only to the extent that it is allowed, the State has the sum of all the powers, any other entity will depend on. Therefore, State is defined as a territorial legal person (persona giuridica territoriale) and sovereign ( e sovrana). The State, considered as a legal person, is given by the name of which each State is distinguished from other similar bodies: so, the names of Italy, Germany, France, UK, Somalia etc., are used to designate certain States in their individuality when they operate in the field of international relations.

State and Legal System and the Elements of the StateState and legal system Each State creates a legal system. The State in its quality of corporate, organized society, manifests as a legal system. This legal system is made from the first constitution of the State, and through this, it determines, also, the process for the production of legal norms, and therefore, it is the rule base to achieve any other norm that the State emanates to adjust the social relations. So, we talk the Somali legal system, Italian legal system, German legal system, French legal system and English legal system etc.Each of these systems is to be considered original,



because' it is not deduced its legitimacy from other legal systems (countries or international legal systems). Each legal system includes two large groups of norms:

1. The norms of public law governing the constitution and the activities of the State or the relations between the State and citizens; and

2. The norms of private law governing the various reports of social life between individuals. The State legal system does not consist only of rules (guidelines, instructions, directions and procedures), but rather also a complex of institutions, bodies, offices that characterize the structure of each State. The systems of the States, while being independent of one another, are in relation to each other; there may be references from the rules of a legal system to the norms of other systems, references called (formal referral)).

The elements of the State1. The People: The constituent parts of the State are three: the people, the land and the

political organization. It is defined as the people of the State, the set of individuals that belong to the State, that are linked to the State by the bond of citizenship. The bond of nationality has a different content in the various States, as each State stipulates or specifies, in its sole discretion, what are the rights and obligations that exist between the State and the citizen. You can assert or affirm, in general, that the citizen has an obligation of obedience (un obbligo di ubbidienza) and loyalty (fedelta’) to the State and this has an obligation of protection (un obbligo di protezione) toward the citizen. Citizenship is legally a STATUS, which is an individual condition from which they derive in chief to subjects certain powers, individual rights, duties and responsibilities/burden. The status of citizens is opposed the status of foreign and status of stateless persons; the concept of people is linked to the concept of population, which from the first has to differentiate. While people are all citizens, the population is the whole of the persons that, at any given time, are established in the State territory. It follows that it is included in the people the citizens who live abroad, while these are not part of the population; foreign residents in the State should be included in the population of this, although not part of the people; and so stateless persons. A distinction should also be made for the concept of nation. The nation comprises all individuals that have the same ethnic origin, and they have commonality of race, language, and, mostly, of religion, history; so there are:a. National States when the people of these State is formed for the greater part of

individuals having a united ethnic (example, Somalia, Italy, Spain, Germany, France, etc.);

b. non-national States when the people of these State include individuals of different nationality (example, Yugoslavia, Switzerland) each State determines its own rules of the acquisition and the loss of citizenship; Since States do not have



uniform systems, so, often happens that the same person has actually a duplicate or multiple citizenship or even no citizenship (stateless). Example, the individual from Somali parents born in Italy is Somali citizen for the Somali legal system and Italian for the Italian system. These are cases of dual citizenship. The acquisition of citizenship/nationality can be original or derivative. It is original when the citizenship is attributed to the individual at the time of the birth; and Derivative when a new nationality replaces that previously owned.

The criteria followed by the attribution of citizenship are: birth, marriage, residence, taking a job etc.

About at birth, in some States give preference to the citizenship of the father, in other States, the prevalence will be given to the place of birth, so the baby takes the nationality of the State in whose territory is born.

In matters of marriage, the existing/current regulation in many laws establishes that: the woman married, acquire the citizenship of the husband. There are, however, other States that decline or reject such principle; to a married woman retains the original nationality, giving rise to the phenomenon of double citizenship.

With regard to the residence, in many State legal systems recognizes the right to an alien, that established by a time more or less long in the State, to acquire citizenship; in some cases, indeed, the communication of this citizenship comes automatically (example independently of a request of the person); in others, only, after its application and in accordance with a discretionary grant of authority.

With regard to the employment, this criterion compete with that of the residence as mode 'to acquire citizenship, when, for example, the stranger gave the State considerable services; or assume independent significance, when the alien has served the State for a long period of time. Other criteria for the acquisition of citizenship may be: having served civil or military to the State whose nationality is or aspires to have married a woman belonging to it. Even the loss of the citizenship does not have uniform criteria between the States: the States are interested in preventing the loss of citizenship to their citizens; so do not always acquiring a foreign citizenship is accompanied by the loss of the original; for which we have new cases of dual citizenship.

The criteria adopted by States to recognize the loss of citizenships are: The prolonged residence of citizens abroad, accompanied by a statement of intent to

abandon the original citizenship; The acquirer of the father of a foreign citizenship which does lose the original

nationality to the minor children living with him;



The marriage with a foreigner which does lose the original nationality to the woman; the granting of citizenship is not limited to individuals: the States confer this legal qualification to legal persons, both public and private, to commercial companies. In this case we speak of nationality instead of citizenship, although' the two cases are the same. Public bodies have the nationality of the State which constitutes them or recognize them with these: the regions, districts, municipalities and State institutions constituted by the State have the citizenship of that State.

When it comes to private legal persons, in particular commercial companies, the criteria for the award of citizenship vary from one legal system to another legal system with the result of dual or multiple citizenship. Some States give the prevalence to the criterion to the place (al criterio del luogo) where is perfected the act, the other to the criteria of the base of the central management of the institution; others, again, that the territory in which the institution carries out its main activities'; others finally, take into account the prevailing citizenship of shareholders or executives (o dei dirigenti), etc.The TerritoryIt is defined as part of the Earth's surface over which the State exercises its sovereignty. The territory includes: the mainland, including the waters that flow (lakes, rivers, canals, inland seas), the atmosphere, the subsoil and territorial sea. The land belongs to the State is jump up or bound by borders, which are either natural or conventional. The conventional boundaries are established by international treaties, concluded with neighboring States: those boundaries are represented on the ground in various ways (boundary stones, poles, fences etc. ;The natural boundaries are characterized by geographic boundaries (mountains, rivers), so for example: where the border is marked by a navigable river, it is assumed that the line to pass through the line of more 'high current, and if, the river is not' navigable it is assumed that the boundary line steps for its midline. Sovereignty 'of the State is not confined only to the surface of the territory: it extends to the subsoil and the airspace above the upstanding land (sopra la terra ferma) , within the limits marked by territorial boundaries; Underground, and in particular, in the airspace, sovereignty 'of the State can be extended where can' be found some usefulness 'of these areas, but the use of traditional means of air navigation; while the so called artificial satellites, from a technical aspect, geographically seem to be out of incoercible control. The territorial sea is a strip of sea that washes the shores of the State for a variable wideness or amplitude, according to calculations that States make it; for some States, this amplitude is limited to three nautical miles calculated from the low-water line. Not at any point the extension of the territorial sea is calculated from the low-water line following the indented coast. In the presence of narrow, gulfs, bays, etc., whose opening is not extended; the line from which the territorial sea starts is represented by an imaginary line joining the outermost points of the' opening of the bay or strait. The territorial sea is considered, at all of the effects, of the territory of the coastal



State, and then, subjected to full sovereignty of the State, unless the right of harmless passage to foreign vessels. Sovereignty of the State since also is expressed on the atmosphere over the territorial sea as well as on the ground and underground sea within the limits of territorial waters. Moreover, and 'come to admit an exclusive right of the State to the exploitation of undersea resources be found in the so called continental shelf, where it extends to the first of its coasts beyond the limits of territorial waters, without prejudice, however, the rights of free navigation and fishing of third States. Even warships and merchant sailors on the high seas, and warships passing in the territorial sea of third States, are considered as the territory of the State; an equal opportunity occurs for airships. It was discussed in doctrine the character of the relationship between the State and its territory. From the most, they believe that the law of the State in its territory is a real right of a public nature comparable in content, the right of private-property '; others consider the territory only as the limit of the power of the State over individuals. We think that the first conception is the correct one: the State exercises rights over the territory and not only on individuals. For example, when the State buys, sells or uses a territory, maybe desert inhabitants, it must be admitted that these powers of the State have as their object the territory as such, and are not, in reflection of the power that the State exerts on people who are in the territory.On the other hand, the content of the law of the State in the territory (il contenuto del diritto dello Stato sul territorio) appears ( si manifesta) as a real right : the State, which the territory belongs, precludes any other State the availability (disponibilita’) and enjoyment; only the State to which belongs it can sell in whole or in part, can' exploit example mines or waterways etc) or allow other States to use a greater or lesser extent by awarding one neighboring State permanent use of a port, a channel, or the transit of troops etc.). The complex of the powers which the State exercises its territory sovereignty is called territorial sovereignty in contrast to those in which the State exercises over its own citizens, and on foreigners, qualified as personal sovereignty.



The political organizationThird constitutive element of the State is the political organization: this element is the most 'important, because without political organization, able to know his commands would not raise a State. The political organization unifies the two elements: people and territory, making it look and operate the State as an entity in itself, suitable for pursuing the ends that are proper to it Making it look and operate the State as a body, suitable to pursue its own; It constitutes the necessary substrate for attributing to the State the quality of person (of domestic law and international law) and legal system (ordinamento giuridico).SovereigntyThe organization of the State politics force the State is considered as a person of supreme power of the government (empire or authoritative power) which is currently designated by the term sovereignty. Concept of sovereignty is started from the seventeenth century to the present; it is one of the most discussed in the doctrine. It would be possible to illustrate the conflicting opinions on the subject; Sovereignty means supreme power of the government, referring to an entity or even to an individual, in the sense that this power is part of the legal system in which it come about. Sovereignty referring to the State means that the power of control of the State no other power superior to it and expresses the independence of the State in the relations with other States or other entities equally sovereign.The term sovereignty indicates the supreme power of the State under its domestic law against people who are subordinate; while the term independence indicates the position of parity of each State, as part of the international law, in relation to other states. The internal and external appearance of sovereignty of the State are so closely related. Sovereignty has some typical features:First of all, an original power of the State. It rises with the rise of the State; an exclusive power for the State alone and it is not for other agencies;

An unconditional power of control of the State. It is not subject to those limits that the State puts the power of control of public bodies created by it;

A coercive power of the State, because the State has the means to implement its commands in the form of coercive. Since State is legal system, it can be affirmed that the State legal system, as the original, is also sovereign.

Sovereignty of the State legal system involves (comporta) that;a. The limits on State powers derive from the exclusive will of sovereign system;b. The system retains power to multiply or repeal the limits mentioned above;c. These limits, since are numerous, leave always to remain a large manifestation of the

State sovereign activities. Compared to the territory, under this is usually distinguished by the name of territorial sovereignty: as we have already' mentioned, the State has the accessibility of its exclusive territory and an exclusive right of exploitation of its resources.



So the State territory is considered, with respect to the sovereignty, in two respects: -like object per se of territorial sovereignty of the State; -and like normal limit to the power of coercion that the State can exercise with respect to persons (citizens, foreigners and stateless); The foundation of sovereignty of the State are the people and the territory; Compared to the people, we talk personal sovereignty; and we have already illustrated the obligations that the citizen has to the State that he belongs; Under the bond of nationality; these obligations remain even if the citizen lives or resides abroad. The personal sovereignty is exercised on foreigners as well, but in limits far more ‘tight. Finally sovereignty 'of the State manifests itself in the form of the three functions: legislative, judicial and executive). Another point on which publicists (pubblicisti) have much discussed is the identification of the person who has sovereignty. In the Middle Ages, being still unknown the concept of the State as legal entity, sovereignty was attributed to God who gave exercise to individual territorial principles through the papal investiture (theocratic theory).In this view was opposed another conception according to which sovereignty, while proceeding from God, was considered directly and definitively attributed to individual principles: sovereignty thus become attribute not dismissible to a certain dynasty, ruling out any papal intervention in regard (legitimist theory).After the French revolution took the body and spread during sixteenth century, a third concept, according to which, sovereignty was exclusively owned by the people:This would delegate the exercise of its representatives elected by him (democratic theory or representative theory). This concept is now prevalent

Essential and accidental purposes of the StateThe State aims of purposes whose pursuit is necessary to the preservation, welfare and progress of society’. The purpose is distinguished essential from accidental:The former are established with the very existence of the State and necessarily pursued each State; the latter does not appear indispensable to society organized in the State and, for this may be ignored by some State, without affecting the existence of the State.



Among the essential purposes of the State, ranks in the first place:1. The defense from the outside. Do not conceive or imagine a State which does not

afford to establish the armed forces, ensure its safety, the territorial integrity, the independence, the honor and property of citizens. For this purpose, each State shall not only establish the institution and training of an army, a navy and aviation, but also through political-diplomatic activity: conducting such political-diplomatic activities, the State ensures support of other states, in case of aggression, or affirms/states, in its relations with other states, its power and its strength expansion.

2. The second essential purpose or goal of the State is the protection of internal order. We have already 'said that every State is proprietor or owner of its legal system through the rules of its legal system, it regulates the relationship between its subordinates and apply these same rules, even forcibly; it gets or obtain the peace and order of the society included in its scope (nel suo ambito);

3. A third essential purposes of the State, is identified in the strengthening of the social and economic welfare of the people. For this purpose, the modern State establish orphanages, hospitals, institutions of various kinds, prepares the most 'various social security’s, in order to improve the hygienic conditions, protects old age, prevents the spread of epidemics etc. In the cultural field it organizes schools , cultural institutes , academies , museums and forces citizens to get a minimum of education (compulsory basic education , the fight against illiteracy ) ; the creation of roads , railways , telegraph and telephone lines , taking the postal service , the discipline of water , etc. In the field more strictly economic , modern States seek to elevate the material conditions of workers putting in place legislation to protect them; so slating or putting down laws restricting the hours of work, which require insurance against disability , old age and unemployment; institutions that provide free of disease care; employment offices of the workforce; trade unions that operate in the interests of employers and workers of different categories and regulating equitably labor relations. In many modern States, the public authorities of the State intervene extensively in the production and distribution of wealth with the laws and institutions of various kinds; for example, institutions that aim at strengthening of the industrial of the State (potenziamente industrial dello Stato) , the reclamation (civilizzazione), reforestation, improved agriculture, etc.This complex activity 'of the State, in contrast to the legal activity' we said above, it is customary to call social and economic activity. The accidental purposes that a State can pursue are different: thus, some absolute State members of the seventeenth and eighteenth centuries tended to achieve the importance of the ruling dynasty; the State of the Vatican City tends to guarantee the freedom 'of the Holy Seat in relations to international issues; the Soviet State tend to spread the communist doctrine in the political and economic; and so on.



The organization of the StateAs any abstract entity, does not have its own will, and has no genuine action: for it must will and act of individuals, whose volition and action is imputed to the State This imputation is implemented by specific legal provisions that each State shall issue to adjust its operation. Natural persons acting on behalf of the State shall be deemed responsible for organs. Given the complex structure of the State and its multiple purposes, there are many people who act for the State, and well-differentiated their respective task, so numerous are the organs of the State by talking the public institutions, they are meant for those social institutions which are intended to perform an activity useful for the State; We have already noted that , alongside public institutions equipped (munite) with its own legal personality (the so-called public legal persons), there are others without that requirement (the so-called public institutions without personality).Among the latter, emerge the organs , that are the devices (I congegni) through which the State wants and acts directly, by using the will' and the action of individuals in charge of will and act for it.The organ has these characteristics:

the organ should not compete with to the State, as the owner of its own power, rights and duties, but it is the State itself in one aspect, in one part;

As a result, the organ is conceived built-in State (incorporatonelloStato), and the human action of the individual responsible for the organ (body) is legally considered as direct action of the State.

Each State organ is divided into two entities: the public office and the public official.1. Public office is meant to allude to the complex of activities', tasks and means that

characterizes every organ of the State;2. Public official is defined as the person in charge of the office. The office, abstractly

considered within its responsibilities and in its means, is independent from the official (a person) in charge: the individual official can mutate and also sometimes miss (c.d. office vacant). Accordingly, when speaking of the Minister (Mninistro), as an organ of the State, we can differentiate: the office of the minister, as a complex of powers and means that pertain or relate to this office (for example the assignment to carry out a particular administrative activity);and the person of the minister, who, in a given period of time, carries out these functions and makes use of those means.While for some legal systems, (like English law (Common Law, and the legal systems of the Churches ) the organs are attributed legal persons, and therefore, is conceived the organ as holder of its powers, duties;•in other State legal systems (among others, Somali and Italian system) this conception is repudiated. For these systems the organ is not but a sphere of competence, of means, of purposes always referred to the State. Each organ is the State in its manifestation; the powers,



rights and duties that relate to each of the organs belong to the State, which remains the sole owner. It follows from this view, that, the relationship between the organ and the State cannot be brought back to the relationships of represent-ation(rapportodi rappresentanza), if it were accepted, the organ should be given its own legal personality. We consider, instead, the abovesaidrelationship as an organic relationship (rapportodi organicita’).The legal requirements (ilrequisitogiuridico) of the organic relationship are as follows: the powers devolved or transferred to the organs are headed to the State; in other words, the public official, wanting (volendo) and acting (od agendo) in the name and on behalf of the State, its action relates to the State: the State is obligated to third parties for the acts of its officials. This imputation of the action of the individual to the State could be captured from the difference between the organic relationship and the relationship of representation. In the organic relationship it is applied the principles of direct responsibility, in the relationship of representation of those of indirect responsibilities Public Institutions (Gli Istituti Pubblici) According to a current doctrinal, it should be differentiated State organs from institutions or public establishments (stabilimentipubblici) of the State, such as schools, colleges, libraries, museums, and so on.The difference would be in this ': while individuals proposed bodies (organs) would attribute their expressions of will' and their action directly to the state, individuals incardinated in public institutions, while acting in the interest of the State, rather charge their statements and their actions to themselves, not to the State. Thus, for example, the teaching done by teachers of a public school would remain in activities of the individual, not becoming activity of the State, even if it explicated on behalf of the State.

Public institutionsAccording to current doctrine represented by Santé Romano, the public institutions (or establishments) of the State such as schools, academies, libraries, museums, and so on,Should be differentiated from the State organs, such as schools, academies, libraries, museums, and so on.The difference would be that, while the individuals assigned to the organs would attribute their manifestations of will and their action directly to the state, the individual’s incardinated in institutions, while acting in the interests of the state, would impute their declarations The difference between organs and institutions would be given by the content of the activity performed, because while the individuals in charge the organ would make acts falling within one of the function of the state (for example, in the executive function); individuals responsible or in charge for public institution would explain or give detail (spiegherebbero) a simple technical activity, such as a teaching, a legal advice, a medical service and so on. Not everyone agrees on this differentiation. Firstly, it was observed that there are organs of the State in which the individuals responsible an activity essentially



technical and do not perform legal acts outside. Thus, under Somali/Italian laws, nobody doubted to consider State organs the Civil Engineering (GenioCivile) and State Advocacy (L’Avvocaturadi Stato), whose officials are largely engineers and lawyers, carrying-out on behalf of the State a technical activity.In conclusion, while remaining permissible for the distinction between legal activities and activities purely technical and among public bodies or organs and institutions (or stabili-mentipubblici), we think that the latter can be classified among State organs, where it gives the body(organ) a term meaning more wide up to encompass any person (persona fisica) who performs a few activities on behalf of the State ,without this actsivitycan be traced back to (fattarisalire) an institution with its own legal personality, distinct from that of the State.Government OfficialsThe individual intended or proposed for an organ of the State is usually called publicOfficial, because he exercises the functions within the competence of the organ.In doctrine it will be further distinguished:

a. The authorities,b. The public official andc. The public employee.

1. Authority is said of person who forms or manifests the will of the State in the exercise of supreme powers that are recognized to the State (King, President of the Republic, Ministers, MPs, prefects etc.

2. Public officials are persons who perform minor State functions.3. Public Employee is one who exercises, for habitual profession, some

activities in the' interest of the State.The public employee enjoys an ongoing remuneration and stability of the office. Alongside the public officials who are public employees ( eg prefects) we have officials who are not employees (example, Ministries, the deputies), and civil servants who are not officers (these are all those who are in charge of activities of interest to the State, but not charged to it, remaining personal activity of the individual: example: professors, engineers at a technical office of the State, and so on). The preposition of the individual to State organ can be done on the basis of legal title orNegotiation The title is legal when there is a rule of law that gives certain individuals, the quality of public officials (for example, in the States of Monarchs, there is a law of succession which determines who ought to be King. The title is negotiating when there must be an act of the preposition to the office. This act is called appointment when emanates from a single body; the act is called election when emanates from either a college or a community'



of people (So we will have the appointment in the preposition of a minister or a Prefect; & we will have election in the preposition of a deputy, appointed by the constituencies. In certain cases, the individual can be obligated to cover a State function (for example the Function of the jury, soldier and so on'): so the act of the preposition of the office does not oppose the act of acceptance of the official. For that the act of the preposition is followed the act of acceptance of the cases in which the assumption of a function of State is optional, it is necessary f the official (example for all civil servants).According to a doctrine, the act of preposition and the act of acceptance remain two unilateral acts, and would not give rise to a bilateral contract ( negozio ).According to an opposite doctrine, these two acts would create a real contract and it would Be between the State and the official a contract of a public nature very similar to the employment contract of private law. While among the organ and the State does not conceive or imagine of a legal relationship Because, as we said, the organ is the State; the doctrine is highly debated the exact Definition of such a relationship: but, in any case, it is admitted that there is relationship Between the State and the public official pubblico funzionario ), from this relationship Will raise the same rights and obligations in the two subjects that the relationship exists. The officer is obliged to perform the activities inherent in his office with diligence and has the right to maintain the office and receive patrimonial compensation (Salary, pension,Allowances, checks, and so on); often the public official has also to the State some interests protected legally , interest which is not to be dismissed out of certain cases, to enjoy certain prerogatives, etc. The duties of officials in the event of their breach or violate, determine sanctions of various kinds: political, disciplinary, criminal and civil. The doctrine and practice still distinguishes three different categories of officials: the professional officials, honorary officials and de facto officials. Professional officials are the ones who are not only legitimately appointed to their functions, but compete through a certain careers and receive a regular salary for the work explicated or made clear; most of the State officials are in this situation: they mate the double qualification public employees and public officials.Honorary officers, however, despite being legally responsible for their offices, exercising Functions for pure civic or community interest receiving no salary for their performance; such, for example, the Deputies, Ministers, Mayors, etc. Honorary officials, on the other hand, despite being legitimately in charge of their office, perform their functions for pure civic interest, not receiving salary for their service; For example, in Italy and also in Somalia, the Deputies, Ministers, honorary judges, mayors, Presidents of provincial councils, etc Honorary officers, they can also get from the State economic rights such as the right of allowances to parliamentary deputies and the Right to allowances of Ministers.Finally, de facto officials are those persons who exercise a public function without being in Charge. There is a de facto official when: there was act of preposition but was invalid; or is



valid but not yet effectively both later became ineffective, for example: disqualification or interdiction from the office; or even an act has never intervened to preposition and the individual is arrogated to his initiative the qualification of the public official. In all these cases , the question arises whether the activities ' of the individual officer may or may not in fact attributable to the State , and commit it to third parties in good faith . While the doctrine and the jurisprudence is generally in favor of admitting responsibility of The State when the preposition of the official was there (whether it was invalid or ineffective), but they exclude, however, when the act of preposition face error or defect, unless circumstances does not justify such an exceptional assumption of power.Chapter TwoThe forms of state and forms of government Forms of State: States, much of antiquity as the modern era, have always the same elements, and that is: the people, territory and political organization; But besides these very general elements, ancient and modern States differ from each other in such a way so deep that a classification of the same, and a list of their differences would take us too far.The classifications that we can bring forward or quote will be limited to the modern State. Since the modern State is not formed suddenly, but it is the product of a slow historical evolution, we believe useful to dwell briefly, to illustrate the two types of State that preceded it: the Feudal State and Absolute State. This historical illustration is much more justified, because through it, we will be given to observe the different limits that the power of Empire State has met with against the people

The Feudal StateThe Feudal State is also called medieval; it is a kind of State that prevailed in Europe from the ninth century to the fifteenth century: it is the foundation of the Holy Roman Empire in 800 AD, and is dissolved with the disintegration of the Empire at the end of the Thirty Years of War (1648). This type of State is characterized by feud .The feudal bond that links the subjects to the Monarch consists of three elements: the commendation, benefit and protection; Through the commendation, the vassal agrees to be loyal to the King, and these in turn, agrees to protect him; Through the benefit, the vassal become loyal to the King, and shall commit to lend certain services to him, particularly some military services, and receive benefit as compensation, usually, in the form of income of public lands . When the commendation and the benefit ensure the holder thereof an effective immunity respect to authority of the sovereign, and make it possible to vassal subsequent exercise of public authority , within the confines of its lands; the feudal institution is perfect (istituto feudale e’ perfetto).

The feudal system is not limited to large estates (grandi feudi): each landowner (feudatario), direct vassal (slave) of the King , grants or gives, in turn , benefits of land and leaves the lower exercise the minor public functions of his loyal : thus forms the feudal hierarchy that comes from the king to the small vassals (vassallini ). The great feuds become hereditary,



and according the feudal law of the emperor, even minor feudal fief are also recognized the heritage. Even municipalities, which are the autonomous governments of the cities, are part of the feudal system: the supreme authority of the municipality obtained from Monarch the investiture of their offices as if they were grant (concessionari) of feudal benefits. The Feudal State is Monarchical but the crown is elective, and therefore not consolidated in a particular dynasty. Another feature of the medieval State is the mix of public and private law: the concept of the asset of the state to which the territory and the people were conceived as private proper-ties of the King. The feudal state is decentralized and disorganized: the countless forces break up and weaken it, giving the society those characters of disorder and instability 'that are typical of the medieval era.

The Absolute State:The Absolute State is also called Autocratic because 'the power of government is focused totally in the Monarch. This kind of State develops gradually, with the decline of the feudal system, and was affirmed in Europe, in the age of the Renaissance, and it was from the beginning of the fifteenth century: so arise the powerful national monarchies of France, Spain, and England, while large ancient imperial feuds fiefs (such as Ducati of Savoy of Bavaria, Prussia, Saxony, etc.); and some Italian Lordships (such as Tuscany and the veronica) transformed or became autocratic rulers. 1)- the revival of art and literature under the influence of classical models in the 14th–16th centuries. The State in absolute type reached its full structure in the seventeenth and eighteenth centuries, and dissolves after the French Revolution; Still lingers or remains in the nineteenth century some States such as the Russian Empire and Asian Monarchies; it still has an example in the State of the Vatican City. The Absolute State is characterized by the omnipotence of the Prince: the crown becomes stable in a particular dynasty, and thus creating a dynastic tradition. The public functions, already in hereditary feudal classes, are removed to the monarch, who returns to the legislative, judicial, and the financial management and military powers. Prince again becomes so, the center of the state and extends his direct authority 'throughout the Kingdom. Around the Monarch it constitutes a central and local system of government or bureaucracy level that depends only from the King and from which 'solely responsible. The subjects-officials (I sudditi-funzionari) are stripped (spogliate) of the feudal benefits and 'excluded the inheritance of them. The subjects appointed by the King of a public function, it can be removed; for their function, they receive salaries or receive gratification when the service ends. In absolute State also spreads the practice of buying with money public office: these (public offices) are sold by the Crown to the highest bidder (maggior offerente) who has held the office, will rival the money shelled out making money incomes of the benefits associated to the office or a large share collecting taxes, (gabelle) duties, etc. deducting from the taxes imposed on the administered The drawbacks (inconveniences) and corruption generated by this hateful system favored the popular reaction to the same and prepared its replacement with the process of recruitment of civil servants (public officials) for the competition and a fixed salary. The absolute monarchy understands the unity 'of the state and, wearing away the powers of the feudal lords (feudatari) and municipalities, begins the process of leveling, that will end with transforming society, already grouped into classes, into a single category of citizens, with equal rights and duties to the State; concentrating the authority of the State in the Monarch; also assemblies of



the States lose their importance. Failing the feudal ties and those other relationships that bond or opposed Prince and the people, and it makes its way to the modern concept of subjection or powerlessness: Everyone living in the territory of the State are subjects of the King, have equal duty of loyalty, and estates equal duties of tributes and equal rights for the positions and state functions. The Absolute State as Feudal State is a State of asset (partrimoniale): Land and people is considered the property 'of the Monarch, of which he can use at his will; the State is not a person, but rather the Prince, and he could be identified with State; holder of sovereignty is not the State but the monarch; t is attributed to the King not to the state subjectivity of the international law. A Progress is manifested in the condition of his subjects in front of absolutism of the monarch: among other things, they obtain recognition of their private rights and the guarantee of their protection under the rules in force, but have not yet, to the State, subjective public rights (diritti pubblici subbiettivi), particularly freedom of rights;

The Modern State The modern State is originated in the American Revolution in 1775 and the French Revolution in 1789; spreads in the nineteenth century and it is still prevalent in America and in Europe; the structure of this type of State derives from both the principles of the American Revolution and French Revolution and the British parliamentary system of government. In England, the assembly of the three states (nobility, clergy and bourgeoisie) succeeded to take into absolutism royal and the House of Commons; in the XVIII century in England there was a limited Monarchy. The modern State has acquired from the English system of government different political views:

1. The beginning of constitutional Monarchy, that mean, the substantive equality of the supreme government (Crown and Parliament );

2. The principle of bi-cameral of Parliament;3. The representative character of one of the Chambers;4. The principle of irresponsibility of the royal integrated to the responsibility of

Ministers to the Parliament; 5. The proclamation of civil and political freedom of the citizens and their constitutional

guarantees.The principles proclaimed by the American and French revolutions, the modern State must:

1. The concept of equal rights of citizens;2. The doctrine of fundamental human rights, conceived as inherent rights

(diritti innati) that the state cannot 'disown. The French Revolution and the American as well as' the evolutionary movement of British parliamentarism influenced the formation of the modern State not only based on their example but also through the works of some famous writers who spread in Europe the public legal conceptions that would prevail in those States: we remember about the works of Montesquieu and others to describe and advocate British constitutional system and the works of Rousseau absorbed those rationalistic principles that the French and American revolutions have advocated. The formation of modern State was considerably influenced as well by German lawyers: to their credit, it was developed the science of constitutional law and the



State was conceived as a legal person and as a legal system. We can now illustrate the character of the Modern State in contraposition to the ones examined in the types of previous states. The modern State is conceived as a legal entity per se: so it rejects the notion of patrimonial State. Holder of sovereignty 'over the people and the country is the State as a person, not the Monarch. The latter is a State organ; The exercise of sovereignty is divided among various organs (Monarch, Parliament, Judiciary) : In accordance with the principle of separation of powers , these organs are placed in a position of equality , and their fields of competence is' regulated by precise constitutional rules in order to ensure the legitimacy to the action of the State and a real protection of private individuals in their relations with the other organs of state actors (organi statuali). The State bureaucracy is regulated by preconceived law, and public officials are no longer trusted persons of the Monarch (fiduciari del Monarca), but are placed at the service of the nation: they are hired through a competitive and paid fixed salary A modern State is also State of Law : either organization of state powers , or relations between citizens and the State find their consecration in law that are often issued with special solemnity (constitutional paper); for this character, and it is also said the constitutional State .Since 'citizens enjoy public subjective rights and are involved or participate in the functioning of the State through the election of a representative body which has the legislative function and control (the Parliament), so usually modern State is referred to as representative State. In conclusion: the modern or constitutional State presents these fundamental characteristics:

1. There is a constitution that regulates the organization of the State and recognizes the public subjective rights to citizens.

2. The sovereignty of the State is distributed between three groups of organs (legislative, executive and judicial), which implement the principle of separation of powers;

3. Recognized for the citizens particular guarantees, such as: legal equality before the law and the rights of freedom '(freedom' to exercise professional, of opinion, of the press, of association, of worship; inviolability of domicile, prohibition on arrest or detention etc.

4. The rights of freedom 'and other subjective public rights are insured to the citizens from judicial guarantees. These guarantees of these citizens are called constitutional freedom;

the citizens participate in the functioning of the State through the election of one representative body, the Parliament, having a legislative function and a function of political and financial control, Besides these basic features, there are others that concern the structures and mutual relations of the constitutional organs of the State; and that means: the legislative organ is complex and representative body of the people; when the process of formation of law participates the Head of State (Monarch or President of the Republic) , this is in a position of minor importance with respect to the Parliament which is representative organ of the people; the executive organ is headed by the President and he acts through his Ministers: every act of the Head of State is not 'perfect if it is not countersigned by a minister who assumes responsibility'; The courts depend on the Chief of State: in practice they are independent, and are given grantees to judges to remedy any eventual coercion; it disappears entirely the ancient power of Monarch to take upon judgments or to



dispense subjects from compliance of judges of civil and penal. The public administration (government) uses the work of a large crowd of citizens assigned based on serious guarantees of suitability and honesty: the competence of the officials as well as their rights and duties to the State, are regulated by law. As we said, modern State prevailed in this current time: from XIX century, this type of State was adopted by almost all Europe, America and Asian States. In the first half of the XX century, its structure has undergone various deviations and differentiations; we will deal this in particular in the coming chapters. The authoritarian State has some notable features worth to be identified: 1) -you will note a centralization of State powers in a single individual, in a Head, surrounding a small circle of its trustees, chosen by himself; 2) -the constitutional bodies (legislatures, Council of Ministers), they are void (svuotati) of any independent power and opposed to the Head of State;3) -is abolished plurality of political parties, perseveres a single party, the victorious, from which are exclusively chosen the men of the government and the senior officials; 4) -you will find a remarkable limitation of constitutional freedom, and, in general, of subjective public rights of the citizens.The authoritarian State takes the form of the dictatorship. This kind of State found its full implementation and its most strong ideology in Hitler's Germany, in Italy’s Fascism. It is said that, still there are totalitarian regimes in Spain of General Franco, Salazar's Portugal and Yugoslavia of Marshal Tito. There is contrast in doctrine to a point that : if in the authoritarian State can still assert or affirm existing the participation of the people to the political life of the State .

The participation of the people to the life of the State:Another classification of modern State can be made by taking into consideration: the people's participation in the formation of the will' of the State .The people's participation in the political life of the State appears only in modern times, with the kind of constitutional State, so this classification has always basis for this type of State. The above classification can be made assuming the greater or lesser influence of the complex of citizens in the life of State. In our presentation we will consider two decisive factors:

3. Relatively to the degree of participation of the people to the formation of the will of the State, we can differentiate between: States to limited democracy (restricted suffrage) to those to full democracy (to universal suffrage).

A. Among States to limited democracy, it comes into consideration the Pure Constitutional State (Stato Costituzionale Puro) in the form of Monarchic in which the participation of the people appears to be limited, the will of the people have influence in the formation of one of the legislative bodies (Chamber of Deputies). The pure constitutional State was adopted in France from the re-establishment (restaurazione) of the monarchy of 1814 and diffused in much of the States in Europe in XIX century.The other constitutional bodies ( the Head of State , Government and second Chambar) voters have not direct influence .

B. In the category of nations with full democracy, it comes into consideration modern States in the parliamentary, presidential or directorial system (the first is a



monarchical form; the second and third only to republican form). These types of state have the following common requirement: the people's participation in the life of State was made wide and important, for the enlargement of the electorate (which tends to coincide with all the people, universal suffrage), and legislative body, made through popular election, takes on a role of primary importance in State system, even forcing the executive to comply with its directives. These three forms of State differ basically then for the different relationship between the organs of the legislative power and the executive power; But in the presidential regime, where there is not a relationship of subordination or trust between the chambers and the government, so the 'prevailing will of the electorate is able to influence the government's action and general policy of the country, through the election of the Head of State.The democratic State (a classical democracy) appears, in the modern era, in one of the three forms mentioned above.

The States above mentioned present in the nature of character being indirect democracy, because citizens do not participate directly in-state functions, but elect their representatives (deputies, Head of State, etc.). In contrast to these States, we have States to direct democracy, where the people gathered in the electorate, exercises the legislative function and delegates the other function (executive and judicial) to members chosen among its members; Direct democracy is feasible in small States to the territory and population (so, there is still some Swiss cantons of the mountain, which, for example, the Canton of Uri);

In the largest States, democracy can be implemented only indirectly in the forms of the State parliamentary, presidential or directorial and, at more, they allow the electorate some functions-state direct, by institutes the referendum, and so on. These methods of direct democracy prevail in several countries: eg., in Italy, Switzerland, Austria etc. c) -The participation of the people to the formation of the will of state is realized, with the transfer of the right to vote to every citizen, regardless of his belonging to particular associations or business groups. There are however, some states such corporations, in which the formation of the legislative body is not 'effected by individual voters, but by them as members of production categories. The legislative bodies are, and then composed of people drawn from corporations, ie 'from associations representing different categories of extended citizens, mostly employers and workers. State corporate people participate in the shaping of the will of the State not through individuals that make it up, but rather through social nucleation recognized by the state. The corporate state has never had full implementation: it was made in Italy during the fascist era; also it had a limited application in Hitler's Germany. Still can be found the Corporate States in: Spain, Portugal and Austria. d) -An additional type of state and 'the authoritarian state also called totalitarian. Even in this kind of state is not less, formally, the participation of the people to the formation of the will 'state, but this participation is authoritatively interpreted by an individual, which combines himself most of the state powers and calls himself the leader of his people in the field of internal and international (leader, Fuhrer conducator, and so on,).The coincidence between the will 'of the Head and that



of the mass of the people is permitted with a single list elections, or meeting of the square, through which process the people expressed, collectively clearly, his/her trust in the Head. The principal character of the totalitarian state is in sharp contrast between rulers and ruled: the first considered belonging to elite qualified to command, in contrast to a shapeless mass and incapable.

The Democratic State and its deviationsThe term democratic state is usually referred to a type of state which has the characteristic of involving largely the people to the government of the state. This happens both through universal suffrage, (the electoral body is made up of all citizens of legal age and incensed under criminal law), and through the popular election of the most important state authorities (Head of State, members of parliament and Government). All-State organs conform their action, legislative, administrative and government directive policies prevailing in Parliament. The democratic State must have the following characteristics:

1. plurality 'of constitutional bodies;2. division of powers and their coordination;3. electivity of Parliament and the most important organs of public bodies;4. effective judicial protection (tutela giurisdizio-nale ) of fundamental

human rights;5. Wide autarchic decentralization.

The democratic state presupposes a plurality 'of political parties, respectively in contention and alternating in power, in relation to the results of recurrent or periodic elections: In this sense, it is clear that the democratic State is a State of parties. The importance of political parties is remarkable:

they designate person or the candidates nominated for the public office; they contribute to organize elections; they even control the political activities of their members; they appoint deputies to the legislative chambers (camera legislative); Policy decisions made in the party leaderships decisively influence the

internal and external public activities of the officials of the state and its auxiliary bodies.

This kind of State is still found in Italy, in France, in England, in Germany, in the United States of America and so on.The democratic State contrasts with another type of State, named State of progressive democracy (or popular democracy or communist type). Even this State is democratic in the sense that the people, through the right to vote and universal suffrage, participate in the creation of the State organs, central and local:

the presence of a single party, the nomination of candidates for public office devolved or delegated exclusively to it,

the omnipotence assumed by a small circle of official members of the supreme odies, Persecutions against any opposition to the regime, and so on, make the democratic

nature 'of that State purely formal. The most important or salient features of this type of State are:

1. the identification of voters with the workers;



2. uniqueness of the party: the Communist Party;3. Marxism-Leninism doctrine taken as a guiding principle of the State;4. the connection of the political activities with those of the party and trade unions;5. the poor implementation of the separation of powers;6. the prevalence given to the action of the law in order to suppress deviationism and

oppositions;7. The lack of judicial protection of individual freedoms and subjective political rights;,

since 'the latter receives protection from judicial organs only and in accordance' with the interests of workers and in order to strengthen the socialist system.

The State of People's Democracy (Lo Stato a Democrazia Popolare) can be' equate authoritarian states. It is also a dictatorial State. It is affirmed that its dictatorship of the proletariat. The new communist State structure informs social, economic and political equality of all citizens. Among these forms of States are: the USSR , China , Poland ; Romania ; Hungary ; Albania ; all so-called Popular Republics of behind the Iron Curtain. The Unitary State and Compound State (Stato Unitario e Stato compost): These forms of States differ between them in relation to the legal organization of the territory. We have the Unitary State when the State has the same legal organization in all its extension: the land and the people therein are allocated immediate objects of State sovereignty; We have instead Compound State when the State territory differs in its extension, in that the locality in which is divided the State territory have the status of States: are formed by political organizations, mostly original, having its constituent element of a people and a territory. The State is composed a State of States: the member States, with their respective territories and their respective people, are considered constitutive elements of the State compound. Are Unitary States: Italy, France, Spain, Belgium, the Netherlands, the Scandinavian states, and so on; Are, Compound States: Germany, Austria, Switzerland, ugoslavia, the United States of America, Canada, Mexico, India, the USSR, etc.

The Federal State:The Federal State constitute of more States. Member States have mutual equality; the states have limited sovereignty. So it is true that foreign relations are headed exclusively to the Federal Government.

The Federal State differs from the Confederation of States for these two characters: a. The legal system that regulates the Federal State is original legal system not derived

from the Member States;b. The Federal State has a territory and a people (composed by all the peoples of the

individual member States).The Federal State differs also from Unitary decentralized StateThe first (federal) consists of United States, which have their own territory, its citizens and independent Federal State legal system. The second (unitary) instead is organized on the basis of territorial constituencies, even when they are called United; it follows that these territorial districts do not have their own territory, their own people and legal system. The central organs of the Federal State emanate acts (legislative, administrative and judicial) that address, directly, to the officials and



citizens of the Federal State (without the intervention of the Governments of the Member States); on the other hand, the residual competence ( legislation, administrative and judicial) left to individual Member States, can be at a later time, limited and even suppressed by the federal constitution, and then by the central bodies that are given the executive power. This characteristic structure of the federal State is opposed to the confederation of States. Usually, Federal States is derived from a confederation of States, which represent the evolution towards a more 'intimate fusion of the Member States: thus, the Swiss Confederation of States until 1848, became, later, the Federal State; the United States of America, a confederation in the early days of their independence, then were transformed in the federal State in 1787.

Federalism, as the structure of the State, appears widespread in the modern era, and enables different peoples to live together under one central government.The federation allows the formation of political - territorial bodies, very powerful militarily and economically, for example, the United States and the USSR.

In Europe are Federal States: Switzerland, Austria, Germany, and the USSR etc. Asia: India, Pakistan, Indonesia etc.

In Africa: The Ethiopian Federation, Nigeria, the Union of South Africa and so on. Oceania: The Australia. In America: Canada, the United States of America, Mexico, the Brazil and Argentina.

The dictatorship has extraordinary characters: it aims generally, to establish a new permanent government to reform the whole structure of the State; the dictatorship will maintain, the constituent power, and suppress or greatly limit the electoral rights and constitutional freedom of the citizens in order to implement the planned reforms. Totalitarian State and Popular Democratic State are types of dictatorship.

Chapter Three The functions and the fundamental acts of the State:The three fundamental functions of the State: The supreme power of command called sovereignty, that inherent or innate in every State is expressed three typical manifestations, nominated as State functions:

a. Legislative function (or power), b. the executive and c. The judicial functions.

These three functions (or power) are distingui-shed by their content:



a. The legislative function is direct to create the bulk of the legal norms component State law, whether they should evaluate public relations or relations of a private nature;

b. The executive function is manifested in the performance by the State of a concrete activity for the satisfaction of its immediate ends or purpose;

c. The judicial function is to do justice; applying the rules of law aim to controversial cases.

The above functions can also be distinguished by the form that the acts relating to their respective contents are to be covered. So, while the legislative function assumes the typical form of the law, the executive functions find its typical act in the decree; where the judicial function takes the form of the judgment. And we must also emphasize that these acts are unique of each function. It must be perfected through a certain process which takes on the character of typicality. It should be finally noted that each of these State functions is given in ownership to a group of organs, identifiable by their particular certain institutional characteristics; and this group of organs performs the function assigned to it based on the organic relationship that links it to the state. Therefore, organs involved in the legislative function are more like capable of performing this function; and the same applies to the organs vested with the executive function and for those in charge of the judicial function. The tripartite mentioned-above must not be understood in an absolute sense: in fact, there are acts of a mixed character; one function participates in the other function; There are acts of the State which do not fall within any of the three functions, but serving to aid the exercise of any of them; are qualified to this such as: the election of a deputy is ascribed the legislative function, not for its extrinsic nature, but because 'it is an act of preparatory by which the State organize legislative power. In the absolute State these three functions were jointly attributed to the monarch, who controlled it directly or it delegated the exercise to subordinate bodies; in absolute regimes you can see a body competent to carry out activities' in the legislative, executive and judiciary. Rebelled against this situation Montesquieu the second half ' of the eighteenth century : this writer argued that , in a well-regulated State system , its three core functions must head separate bodies in order to ensure that the State government does not sink into tyranny. If the legislative power- wrote Montesquieu- be reunited with the executive, there would be no freedom ‘, as the monarch could make tyrannical laws and execute them tyrannically; nor will be freedom, if the judicial power was reunited with the legislative power and executive, because' the judge would be the legislator and oppressor together; and the same should be said of the legislative power.The concept of separation of powers triumphed in all States in the nineteenth century, and go up to a fundamental element of the type of constitutional State. This tripartite regards the legal nature of acts in which concrete the activities of the whole State; while the legislative function has creative character, as expressed by formulating the law by means of which will



be valued human behavior; the other two functions have enforceable character, as exert applying the rule of law (norma di legge), in itself 'abstract, in individual reports of real life. Some jurists have wanted to split from the abovementioned functions, in two additional functions: the advisory function and the control function.They argue that the legislative, executive and judicial can be classified in one function, called, active; while should receive independent treatment the function direct to express required opinions to the organ acting (advisory function) and the direct function to check or monitor the work-its function-(control function).We think that, it could not be recognized that there is an integral autonomy of the two functions mentioned above , but, they will comprise in the basic three fundamental functions : in fact , both the advisory activity and the control activity are implemented in the legislative , executive and judicial indifferently, (consider, for example, the financial and political control activities of the Parliament with respect to the government etc. consider also for ex. the advisory activities of certain organs with respect to the legislative function etc. ) It is also established the opportunity' to single out from the three functions mentioned above , a so called political function , which would have content and own final purpose that you cannot bring back to the legislative, executive and judicial . However, they (the lawyers) said we doubt that this function can wish to its own autonomy; in our view, it can be traced back: Sometimes in the legislative function, because the political program translates into laws implementing it. Sometimes in the executive function and also judicial, because ' through concrete acts of government, administration and jurisdiction, the programmatic principles and laws that specify them are applied to individual cases. The separation of State powers The separation between the functions of the State: The separation of State powers and the equality between the organs that exercise them have never been absolute.

1. First, from a historical point, it is always existed the tendency of one power to prevail over the others: sometimes, this supremacy was taken by the executive power, as the Head of State and his government (executive bodies) were managed to State their hegemony; Sometimes, however, in respect to the principle of popular sovereignty, elective houses (legislative organs) had been able to establish itself to the organs of executive power: especially in the so-called government cabinets, typical of monarchies and republics to parliamentary form.It is also noted that, in some legal systems, a supremacy of the judiciary (eg. In the United States of America, is spoken a government of judges, to signify this predominant position).

• In second place it is found that the State-functions cannot be completely separated, but it is necessary that these functions are coordinated and interpenetrated. In principle, the three functions were assigned to separate bodies, however, 'permitted in all States, numerous interference between different State organs; the same autonomy



given to each organ has meant for that this organ, for its organization and activities, should also have powers put beyond the reach of the power to which it belongs. So, the legislative bodies (Parliament) while coordinating the legislative power, exert (perform) even some administrative skills (example, approve the State budget, appoint employees workings in the rooms) and some other times they perform some judiciary skills (ex. in Italy, during Monarchical legal system, the Senate appeared or constituted in the High Court of Justice); the judiciary system (courts, magistrates, etc.) play also administrative function (internal rules of discipline hearings); or the executive bodies (head of state, ministers, prefects, etc.) beside executive functions, they issue decree-laws, regulations etc.In addition to its normal function administrative (enactment of by-laws, regulations, by-laws) or judicial (ie. the activity 'courts of the State Council and the Court of Auditors)..In conclusion: you can 'say that, in the modern constitutional, rather than' separation of power, there is a distinction of functions: the three functions legislative, executive and judicial, that differ basically for their content and their form, in other terms, for legal nature and for different purposes' of acts, coordinate among themselves; and so true that the organs vested with one of these functions, perform also activities' within the scope of other functions.

The Acts of the State in GeneralThe most important acts of the State are legislative, executive and judiciary. The legislative act in general: the doctrine is called a legislative act or law, in the material/substantial and formal sense , the act of the will ' of the State in which set rules of conduct , new , general and abstract and is enacted by the bodies responsible for the legislative function. Since in the legal system of the modern constitutional States, legislative body is the Parliament (either alone or jointly with the Head of State); So it will be formally and materially or substantially legislative act, act containing legal norms approved by the parliaments and promulgated only by the Head of State; for example, in the Italian and Somali legal systems, legislative act in formal and material sense is , the Law on Citizenship..This act contains general, abstract rules of law concerning the acquisition and loss of citizenship and was voted by one or two chambers and promulgated by the King or by the Head of State.(see annex of the Somali Citizenship Law) In many legal systems, the ordinary laws differ from constitutional laws:

a. Constitutional laws contain norms of changes to the constitution of the State; and then as sources of law, they have superior efficacy to that of ordinary laws.

b. In certain legal systems, the constitutional law is approved by bodies other than the normal parliamentary legislative bodies;



Law only in the material sense and the law only in the formal sense:We have legislative act or law in the material sense only when the act of will of the State always contains rules of conduct, general and abstract, but the act itself is not' enacted by the legislative bodies, but rather from the bodies involved in the executive function or judicial. In all states this phenomenon occurs with a certain frequency, because for insistent practical needs of functioning of the State, organs of executive power, in particular, must possess certain range of power of legislation; fall within this power ':

a. legislative decrees, also called the law delegate: which means normative acts issued by the organs of executive power, according to a law delegating legislative bodies;

b. -decree-laws, that 'the regulatory acts issued by the Head of State, after consideration by the Council of Ministers (Cabinet), in cases of urgent and absolute necessity', and conditioned to their conversion into formal law, after a certain period of time ;

The regulations can be:1. of performance (when they contain the provisions needed to enable the

application of formal laws;2. independent or autonomous (when they contain norms in the context of

matters traditionally left to the competence of the executive;3. The organization (where 'have regarded the creation, modification and

operation of offices of state. All these acts are laws in a substantive way and not formal, because contain rules of law, but are part of the executive authorities (Head of State and Council of Ministers, and are issued in the form and typical processes for the acts of the executive function (decrees);Even the lower organs of executive power and the auxiliary bodies of the State shall have a normative power: referring, for example, to the Italian and Somali legal systems, remember the rules or regulations of the individual ministers, regulations of the region, provinces, municipalities, etc. all these pieces of legislation are issued by bodies which have normal executive function, and therefore, constitute laws in a substantive way and not formal. In principle, the substantive law, emanating from an organ that is not ' legislative body, cannot ' change or repeal the law formally in force, so for example, a government regulation cannot waive an act of Parliament. But there are exceptions: thus, for example, in the Italian and Somali legislative decrees and decree-laws, have the effectiveness of formal law, and are therefore equivalent to this within the hierarchy of sources of law. The power of legislation may ' also compete at the organs of the judiciary power. They exercise it through the regulation on the discipline hearings emanated by the tribunals and the courts of appeal. Let us now examine the legislative or law in the formal sense only: In these cases, the act does not have to state the content to establish legal norms, despite coming from the legislative bodies of the State; the act contains an administrative measure, and is enacted by a legislative body, with the



same shape and the same process through which this organ looks to enact formal laws. A few examples: in almost all constitutional states, the state budget is approved by the formal law, that an act passed by the parliament; also, in many States, it is customary to grant by means of a formal law citizenship to foreigners especially meritorious; In these cases we have law in the formal sense, because, although the State act takes the form of the law and is issued by the legislative bodies, its content consists of a measure of administration.

The legislative act has a particular formal legal effect that differentiates it from other acts of State: a. it is an act of superior effectiveness than any other act adopted by the State or other

public bodies, and takes values in earlier laws, regulations and administrative measures, judgments incompatible with it;

b. The obligation (l’obbligatorieta’) of formal law does not come to cease than for the enactment of another formal law which explicitly or implicitly repeals the first.

c. The formal law binds the judge to its observance. The executive act in General: Second type of state act is: the executive act:The executive act in formal and material sense is the act by which the State uses an activity' concrete for the fulfillment of its purpose and is issued by bodies which are attributed it, institutionally , the executive function . The executive act differs from the legislative act for this element:

While the legislation is directed to a generality ' of people and regulates abstract relations.

The executive act affects a small circle of people and to exhaust (e si esaurisce) in a concrete activity useful to the State.This difference is evident when one compares a regulation to an administrative concession:

in the regulation, we will have rules of conduct general and abstract; In concession, the attribution of a right to a given individual, so that 'he exercises in

the interest of the State. Executive act in a substantive sense only and executive act in the formal sense only:

The executive act in a substantive sense only.This act has for content a provision for executive (un provvedimento esecutivo) despite coming from organs not vested with the executive functions: legislative or judicial. For example: executive act in a substantive sense or way and not formal, the law approving the budget.And for example : executive act (administrative) in a substantive sense or way and not a formal, decree issued by the court in the matter of voluntary jurisdiction, since' no content for a judgment, but rather an administrative measure. In contrast we have the executive act in formal sense only when the act of State has the content of a law or a judgment despite coming from an organ responsible of the executive



function. For example, the regulations issued by the executive authorities (decrees, regulations, etc.) or decision of the Council of Ministers.

Political acts and administrative acts:The executive acts can be distinguished political acts (also called acts of government) and administrative acts. The first are acts issued by the organs of government (Head of State, the Council of Ministers, individual ministers, prefects, etc.) reflecting the supreme direction of the State concerned in his unit '; The second act concerns the administration of the State, and that 'the maintenance of law and treatment of physical, economic, moral and intellectual of the people. Political acts would be those concerning the relations of the state with other states (ratifications, accessions to treaties, declarations of war and blockade, and so on) and those that reflect the relationship between the constitutional bodies of the State (decree of the head of state which opens and closes a legislature dissolves a room, they resign and appoint ministers, declaring a state of war and emergency, etc.); Most of the executive acts of the state are administrative: by means of these acts the State plays a concrete activity for the pursuit of its ends, as a rule they assume a typical form called Decree. The difference between political and administrative acts is not 'always easy to operate, case by case, it is devoid/lacking of dispute ( ne’ e’ scevra di contestazioni) on the ground of case law.There are cases in which the act has political content of certain administrative measure, but it differs only to be issued by the Government or by officers subordinate to it in the exercise of political power, so, for example, acts of appointment and removal of a minister or a prefect are considered political acts, even though they well achieve administrative purposes.

Classifications of Administrative Acts: Administrative acts can be divided into:

a. bound administrative acts (atti vincolati) and discretionary acts (atti discrezionali)The first are those that State organs must issue after verifying several conditions, because their issuance is planned by the law;The second are those that the administration can ' issue or not to issue based on its free and discretion, or, they may ' issue according to the procedures ' that feels more ' appropriate ‘Thus, for example: it can be considered bound act, the registration of a student at the university; and while can be considered discretionary the authorization to open an outlet (public exercise);A second classification of administrative acts can be definitive (final) administrative acts and not definitive administrative acts. First acts against which are not subject to administrative appeal, but only with proceedings before administrative judicial bodies; example: it is final the decision of the Minister, because there is no authority superior hierarchically to appeal;second acts are those



subject to administrative appeal; such as, measures from local administrative bodies (prefects etc.), are subject to administrative appeal, because they are not final. A third and most important classification of administrative acts takes to base the legal effect that the act is direct to achieve; so we have: the registration, certifications, proposals, opinions, decisions, approvals etc. 1. The registrations or records: are 'the act by which the public administration

department take note acts and facts legally relevant, such as: registration of a marriage celebrated before the judge.

2. The certification is 'the act by which the p.a. finds, at the request of the interested, the existence of a fact, such as certificates of birth, marriage certificate, death certificate etc.

3. The proposals are acts of an organ of p.a. turned to another administrative body, with which it invites this last to examine a project to ensure or reject. For ex: the proposals of legislative measures to be issued (bills, decree laws, regulations etc), presented by a Minister to the council of Ministers

4. The opinions are a technical advice issued by an organ of the p.a. at the request of another body of the same. Opinions are those issued by the special committees and advice at the request of the ministries to the ministries concerned.

5. Even the judgments (giudizi) are, like opinions, evaluations issued by the p.a. , but they reflect capacity , the activity , performance , etc. of a person ; Usually judgments presuppose examinations, tests, assessments of the public authorities; are judgments, example, characteristic signs or notes for civil servants.

6. The decisions are counted among the judgments, taking into account that: the characteristic of these acts is responding to non-judicial remedies submitted by the parties affected by an administrative order; such decisions are the final measures of Ministers at the end of hierarchical recourses.

7. The approvals including registrations and approvals, are administrative acts by which a State organ give effectiveness or enforceability 'acts from other State offices and already' perfect in their constituent elements these are: the approval and registrations of the Prefect of the acts emanated by the authorities of the municipality and provincial; registration of Magistrate of accounts to the Ministerial decrees.

8. Orders are acts with which the p.a. addresses a command to give, do or not to do something; they are considered acts of this kind, example. the order of call to arms, the expropriation order, the ban on driving in a road or the prohibition to stay in a specific location ', etc.

9. The admissions are acts by which the p.a. recognize a person the right to receive a public service or to use a public property; for ex. : the acts of admission to a school, a hospital, a poorhouse ', etc. usually these acts are bound.



10. The authorizations are acts with which the p.a. removes an obstacle to the exercise of a right or power to the existing authorization, for ex. The authorization of the local municipality permits to open a shop etc

11. The concessions are acts by which the State grants the exercise of its own power or right to a private. Concessions are, for example: that generate the exploitation of mines etc.

12. The agreements or contracts are public law legal transactions existing between two or more 'public bodies (eg. between State and City or between two municipalities), or between a public body and a private.

In this category we also include the tenders and contracts for public use. The administrative act in a formal sense (l’atto amministrativo in senso formale) has some general characteristics that must be recognized:

a. administrative act should not be in conflict with a legal act;b. administrative act has the attribute of enforceability ';c. a third character of the administrative act is revocability';d. An additional character attributed by some lawyers at the administrative act is

its discretion.



The judicial act in generalThe third type of a state act is a juridical act. Even this type of act can be considered as a juridical act in a substantial and formal sense, only in a substantial sense, and only in the formal sense. The characteristics act with which the judicial function is manifested is the sentence, which expresses a logical judgment aimed at implementing the objective right in concrete relationshipsThe judicial act differs from the executive act by this element:

a. through the first act, the State expresses an impartial or fair judgment for the implementation of the objective law;

b. Through the second, the State itself carries out a concrete activity for the satisfaction of a particular interest.

The legislative act can be changed by the legislative bodies that created it; thus the administrative act can also be revoked as a rule; the sentence, once it is judged, is irrevocable. The irrevocable sentence has a legal presumption of truth.

Jurisdictional activity is differentiated into:a. criminal jurisdiction;b. civil jurisdiction;c. administrative jurisdiction

END


snupg4.files.wordpress.com€¦ · web view2020. 12. 30. · , the distinguishing criterion would...

Documents