INTRODUCTION TO PUBLIC LAW

1. INTRODUCTION TO PUBLIC LAW The State and the Forms of Government:

2. Various types of Republics: • We have already ' said the Republic qualifies as government of community. The Republic can take place in two forms: • a) -Aristocratic Republic: where the power' of the government rests with belonging to a social class defined as: the nobility ' and not all the people ; these were : the Roman Republic , and the Republics of Venice and Genoa until the eighteenth century ; • b )-Democratic Republic , where the supreme power of the State belongs to the community of the people or at least almost totality of it. 

3. The Democratic Republic can be divided in: Republic with Direct Democracy and Republic with Democratic Representative. • -In the Republic with direct Democracy, the community of the people exercises State power directly, dealing in meeting State affairs and appointing officials; • -the Republic with Democratic Representative is established where the people cannot participate directly in the government of the State, but elects organs designated to it; these organs are said to be representatives, 'because they exercise State power on behalf of the people. • This form of government is 'accepted in all the great modern Republics.

4. The Republic with Democratic Representative assumes, in turn, various forms:  • a) – Directorial Democratic Republic (or government of Assembly) in which the State power is centralized in an Assembly elected by the people: the Assembly, for its part, delegates executive power to a committee submitted to it and from it controlled. • This form of republic took place in France in the revolutionary period: 1792-1795; and present in Switzerland; the Republics of people's democracy behind the Iron Curtain: the USSR, Poland, Czechoslovakia, Rumania have a government of Assembly. 

5. b)- Presidential Democratic Republic, in which the State power is divided between the President of the Republic (the holder of executive power) and Chambers (holders of the legislative power), both are representative organs of the people and elected by the people: President is the Head of State and Head of Government; he exercises executive power without having to follow the signs or indications of the rooms, he will have to respond, just in front of the country, because he is appointed of his office by the electorate (universal suffrage); appoints and dismisses ministers, who are politically responsible for their acts to the President .; this form of Republic is typically like USA; in Europe this form of Republic is found in Poland and in Yugoslavia,

6. c)- Parliamentary Democratic Republic in which both the President of the Republic (executive power) and Chambers (legislative power) are representative organs of the people; but unlike what happens in the presidential Republic, the Head of State is distinguished by the Head of government, since 'the executive power is not' exercised by the President of the Republic, but rather by its government (the Council of Ministers or Cabinet); the Ministries are appointed and revoked by the Head of the State, but they shall answer their acts : in some cases to him and in other cases to the Chambers.

7. Dictatorship: • By some authors consider as a particular form of government dictatorship, if this is not accompanied by a monarchy or a republic, for which it assumes the 'outward appearance. • The dictatorship centralizes/unifies itself 'whole government of the State. The figure of the dictator can take place either in a single individual, who put in his hands the essential powers of the state, or in a limited group of people, or a whole social class or economic, (for example the proletarian dictatorship of the Communist type).  • 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 soles 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.  

8. 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: legislative function (or power), the executive and the judicial functions. • These three functions (or power) are distinguished by their content: • -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; • -the executive function is manifested in the performance by the State of a concrete activity for the satisfaction of its immediate ends or purpose; • -the judicial function is to do justice; applying the rules of law aim to controversial cases.

9. 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/exclussiveof 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. 

10. 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.

11. 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 a dictatorship. •  If the legislative power- wrote Montesquieu- be reunited with the executive , there would be no freedom ' , as the monarch could make tyrannical laws (amarkutaagleynsh)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.

12. 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).

13. We think that, it could not be recognized that there is an 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 . 

14. However, they (the lawyers) said we doubt that this function can aspire to its own autonomy; in our view, it can be defined 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 . 

15. 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/complete. • 1)-First, from a historical point, it is always existed the tendency of one power to prevail over the others: 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). 

16. 2)-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,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.  

17. So, in all the State legal systems , the legislative bodies (Parliament) while coordinating the legislative power, exert (perform) even some administrative skills (example, approve the State budget, appoint employees workings in 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.

18. 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.