PUBLIC LAW
Forms of State
Its main features:
o
o
o
o
Independence
Preeminence
Based on a territory
General aims  every citizen is addressed, at the same time
Centralised State (they transfer the power to other institutions)  Decentralised State – “regional State (s)”
(territorial forces, s.a. municipalities)
1) Institutional decentralization: a certain power/function/authority is transferred by the government to/in
favour of, for example, the regions.
2) Bureaucratic decentralization: the government remains competent but the division is different  the scheme
in which the power is delivered is different but the authority is the same.
3) Self-government: ex. Catalogna
Decentralisation in the Italian Constitution:
 Article 5: “The Republic is a single and indivisible entity”
 Article 117: State’s powers, common powers, Region’s powers
 Article 119: Financial powers and duties of the Regions
The Union of States and Confederations (ex. The European Union):
Independent States and organization may decide to group together and name an “entity” which has the its control, in
order to be “above” others.
 ex. The UNO Charter: how it interacts with its members and the domestic legal system (and legal orders of each
single member State). Even military actions may be decided without necessarily noticing the members or obtain their
consent.
These kinds of unions are defined as Unions of State.
Elements:
Territory:
o
Natural and artificial borders.
o
Article 241 of the Italian Criminal Code: crimes against “the State territorial integrity”.
o
Does a State legally “survive” an invasion? => the culture may survive but the State legally does not exist
anymore. It depends if the invasion is recognized internationally. The centralization of the power changes.
Once the invasion is rejected or pushed back there is a possibility for the State to restore its integrity.
o
“extra-territoriality” = something which is exceptional to the general ruling and the principle of territoriality
and happens outside of the borders (e.g., international sanctions against Iran).
o
Territorial immunities
o
Colonies
o
Is the State’s rights over its territory “ad rem” rights, similar to those regulated by the Italian Civil Code?
Ad rem rights assume that the object of the right is something legally separate from the holder.
As far as the State territory is concerned, the territory is one of the fundamental elements of State, therefore
no distinction may be drawn between the “holder” of the right and its “object”.
When it comes to the Public Law System, there is no difference between the territory and the State, since the
territory is part of it.
People:
o
The status of citizen: people who have at the same time rights and duties (<> residence; domicile)  laws
addressed to them (only from a legal point of view, not cultural).
o
It is possible to change our identification as citizens of a determined country  Art.11 and 22 of the Italian.
Constitution: gain and loss of citizenship; waiver.
o
Non-citizens and stateless people = apolidi.
Sovereignty:
o
Art.7: the State and the Holy See  there is no crystal definition in the Italian Constitution; but Italy is defined
as “sovern” (the power may be exercised without relying on anyone else).
o
Power to issue laws, administrative decisions; theories about sovereignty.
o
Art.1: people as the “holder” of sovereignty  it is referred to the State.
o
Limitations: Art.11 (limitations for Italy to exercise its full power  it affects the extent of the central power),
Regulations (or Directives) issued by the EU, Articles 41 and 42 of the UNO Charter.
There are limitations that are automatically applied or some voluntarily applied.
Public Finance




Establish duties and taxes
Manage assets owned by the State and other public bodies  manage money and check that every member
can access to them.
Make available resources (through public services, investments and work).
Main principles: political aims and general purposes, control by the parliamentary assembly.
Role of the Parliament


Approval of the State financial statements: political priorities are established.
Approval of “rendiconto”: subsequent control over the Government’s actions, which should be in compliance
with the approved financial statements.
 double check
Missing approval => resignation of the Government members? (art. 94, para 4)
The draft-financial statement is rejected and the fair consequence should be the resignation of the
Government.
 Government crisis
 “No taxation without the presentation” = the quandary of a populace that is required by law to
pay taxes but has no say in the matter.
 art.23 and 53 (Provisions of the Italian Constitution on public finance).