Chapter III Interpretation of the legal system

1. Chapter III Interpretation of the legal system

2. Chapter III Interpretation of the legal system • 1. To exert/apply the legal norms to the concrete case, it is necessary to consider the exact scope, example "interpret". • The interpretation of the rule, supposed as a substitution of the will 'of the legislature from the abstract to the concrete, from the general to the particular, is always necessary; only, it can 'be in practice more' or less difficult. • Sometimes, it is sufficient just the simple reading of the provision, because the lexical meaning of the words used by the legislature, leaves no doubt and excludes any different solution (letteral interpretation);

3. Some other times because 'the expression is not' clear, or because 'other evidence suggest that the intention of the legislator is different from that appears at first glance, so it makes necessary to trace the purposes in connection with the reason which the norm was enacted, and coordinate in a systematic way to the norm consistent with the other norms that consider the entire material in question (logical interpretation).

4. 2.A conclusion of the interpretative process, it can result that: • a) -the will 'legislation coincides with the literal or letteral (declarative interpretation); • b) –or, the will is less extensive than the apparent meaning (strict interpretation); • c) –or, the will is more' wide of the words used (extensive interpretation). • In all the three cases, what should apply is always the real will of the legislature. • However, it must be warned that ,with this expression, does not mean the necessary intention or rather, the intentions of those who participated in the formation of the norm, but the end goal of the law, which consolidates the intentions and opinions of the proponent is received into the same rule (the so-called menslegis).

5. 3. Out of the cases previously examined, there is the so-called analogical interpretation: which is considered as a form of legal research of the norms to be applied to a case not expressly provided by law. • Through analogy, the interpreter does not create a new rule; but applies to the present case the legal norm governing a similar case, assuming that the legislature could also have governed the present one if he had contemplated/planned: in good substance, then, the interpreter finds out and applies a rule already 'exists, even though they are' not expressly declared • It goes without saying that, it must be a case similar in all aspects affecting; otherwise, you cannot 'presume an equal solution. • Finally, not being able to admit that the legal system has voids or gaps, the interpreter must resort to general principals of the system; these principles must be respected even in those cases that do not have a discipline .

6. 4.It has been addressed up to now a purely theoretical interpretation (or doctrine) of the rule of law: that interpretation is made by the scholars ( of the norms) in the scientific sphere, and not in the exercise of a public function. • Different is the case of the interpretation made by an organ of the Judiciary, which has by law that power or authority': in this case the interpretation (called also judicial interpretation) have binding force on the parties concerned, once the interpretative judgment has become final. • It is also possible that the interpretation of a rule is carried out by the same legislative body that has put in place, through the enactment of a new norm of equal efficiency. • This form of interpretation (called also legislative) is binding on all the persons addressed to the norm; and applying to a previous norm/rule, it operates retroactively

7. Chapter III The Legal System • III. Systematic of the Legal System •  The complex of norms of the Legal System is divided into two large groups: •  (A) -norms dictated to govern the organization of the State and other public bodies, as well as to control the attribution of public bodies and the activities they pursue for the pursuit of ends of general interest with particular reference to the relations between such bodies and other subjects;

8. B) -norms dictated to govern the relationship between the parties other than the State and other public bodies, as well as the relationships in which the State and the Public Authorities act outside their own power (potere di imperio), is to determine the respective rights and duties. • The first set of rules is called public law, the second private law. What distinguishes the two sets of rules is the different assessment of the interests protected by the law;

9. while in public law the general interest is considered to be prevailing over the individual one, and in private law the various interests are placed on a substantial parity basis. • Public law, in short, governs a hierarchy of different interests; Private law equates to equivalent interests. • 2. Each of the two sets of rules has further subdivisions. Thus, under public law, there is constitutional law, administrative law, judicial law, and criminal law; In the sphere of private law there is civil law and commercial law etc.

10. There are further distinctions within each subject (so, for example, judicial law is subdivided into civil procedural law, criminal procedural law and judicial system; • commercial law is sub-divided into company law, bankruptcy law (dirittofallimentare), exchange law (leggecambiario), etc. • The full knowledge of every branch of law is acquired only with the in-depth study of the various disciplines. We will limit ourselves to those important once that interested in our study.

11. However, it should be clarified that the legal system remains unique, since the groups of norms are not isolated norms but are part of a single system, harmoniously formed and coordinated. • It is for this reason that the rules of public law sometimes interfere with the scope of certain rules of private law for the sake of the general interest. • The possibility of limiting and sacrificing private rights for reasons of public interest is indeed one of the dominant motives of modern civil law.

12. 2. By limiting this present analysis to the essential parts of public law, it should be noted that the hinges/fulcra of the legal system are constitutional law. • It conducts the broad lines of the organization of the state; disciplines the formation and operation of its core organs; and further establishes, within such limits, public policywhich may lead to the sacrifice of private rights.

13. The matter concerning the Head of State and the Legislative Power is entirely disciplined in this branch of law • As far as executive power and judicial power are concerned, only the basic principles of the law are accepted in constitutional law, while the concrete discipline of the matter is implemented in the administrative documents and judicial documents respectively.

14. Administrative law includes not only the rules governing the organization of public administration offices (formal administrative law), but also the rules that the executive power bodies must apply for the purpose of public interest (substantive administrative law). • Judicial law, however, is always and purely formal, as it relates to the organization and functioning of the organs of justice. • The law that the court must apply in the exercise of jurisdiction may be part of both public law (criminal law, administrative law) and private law (civil law, commercial law). • It 'should also be noted that the administrative rules can be applied both by the Executive Power and the Judiciary power: the first, as they mark the content, limits and purpose' of executive powers; • From the second, since it is the duty of justice to control in the ways provided by law if the work of the constitutive power is legitimate that is, conforming to the legal system.