Concept of Law: An Analysis of Rules, Power, and Values

Posted on Nov 18, 2024 in Law & Jurisprudence

Theme 1: The Problem of the Concept of Law

1. Difficulty in Establishing the Concept of Law

Right human relations are established as models of behavior specified in rules for organizing social life. The basic purpose of law is the sort of coexistence between men. Sociality and normativity are the first two intrinsic characteristics of law.

1.2 Reasons for the Difficulty of Defining Law

Difficulties in arriving at a single, uniform concept of law are numerous. Some stem from the law’s own historical and social changes, and from preconceived ideas or prejudices about the legal world.

2. Polysemy of the Word “Law”: Review

Plurality of meanings. Meanings can be reduced to four:

1. Right target: The word “law” is used as a standard, i.e., as law or a system of rules in force:
   1. In a given community or political-territorial space (e.g., Spanish, French, or Italian law).
   2. In place at a specific historical moment in the past.
   3. Referring to a plot, field, or actual content of legal relations (e.g., Civil, Mercantile, Administrative law).
2. Right subjective: This sense attributes specific powers or legal authority to subjects to do, not do, or require something. Legal authority to act must be conferred by the rules.
3. Right as value: Implies the ideal of justice. Is the absence of justice a social value precisely for the violation that occurs in the standards of law? Absence of justice value.
4. Law as science: Refers to human knowledge projected onto legal areas related to study or knowledge.

3. Basic Dimensions of Law: Rule, Social Fact, and Value

Law aims to order the life of coexistence among men.

3.1 The Historical or Factual Dimension

Law is a social fact, considered from the point of view of its production within an organized social group. Law aims to regulate relations within social life.

3.2 The Legislative Dimension

Law is characterized by acting on social life to regulate and guide social behaviors. Law is presented as a norm, a mandate, rules of conduct required. Normative social fact.

3.3 The Evaluative Dimension

All social and normative facts are valuable; law is presented as a value. It is a bearer of values, especially justice, which it tries to project onto legal reality. This dimension underpins and justifies all positive law.

3.4 Unity of All Dimensions of Law

The three dimensions have attracted various studies on law developed around three different perspectives causing legal knowledge. These elements cannot be separated but coexist in a particular drive, since all dimensions of the juridical act as elements of a process.

4. Validity, Effectiveness, and Fairness of Law

If a law is invalid, it is not real law. There are three different definitions of the validity of law.

1. According to normal legal theory: Validity depends on requirements imposed by other rules in the hierarchy.
2. According to sociological theory: Validity lies in real social effectiveness.
3. According to philosophical ethical theory: Validity matches material accordance with requirements arising from fundamental ethical values.

Validity is the quality predicated of the right to have the strength or value required for subsistence, applicability, and effectiveness of its provisions, namely to develop what is considered as its own charter and function: to determine or direct the conduct of legal subjects. Validity and effectiveness. They could only be described as those that valid legal norms that have attained a minimum level of social effectiveness as Kelsen.

5. Key Concepts of Law

5.1 State-Formal Design (Legal Positivism)

This comprises thinkers who defend the primacy of law as a source of law. A set of rules emanating from state power, directly or indirectly, is the Western world itself. The highest representative is Hans Kelsen. It aims to ensure legal certainty as the certainty of knowing in advance what is right. The preeminence of state law does not preclude other sources of law production. Judges must always be faithful interpreters of the law.

5.2 Sociological Realistic Conception (Legal Realism)

This connects legal normativism to society. For accommodation to society’s reality, needs, requirements, and aspirations, understanding that they must be taken into account by the law. The ultimate ideal is serving the aims and aspirations of society within which law operates. Legal certainty is not understood as certainty of law but as the satisfaction of social aspirations, achievable by this route more fully and humanely than the previous design. Appraisal and valuation of the case by the judge. Legal realism originates in the U.S. and Scandinavia.

5.3 Ontic-Value Conception (Natural Law)

The ideal of this concept is justice. Law cannot be identified with the rules of legal or social events simply; not only specific decisions of the judges, but also an ethical or valuation dimension. The rules and decisions of judges should be legal and fair. Justice required for each case.

Theme 2: Social Policy and Systems: The Importance of Law

1. The Social Dimension of Human Life

There is a strong correlation between being human and living in society. Society is the natural environment of human existence. It is natural and inevitable and, moreover, an artificial phenomenon, resulting from an explicit and planned decision of men. Every man is a synthesis of antagonistic demands or needs: sociability and individualistic tendencies. Human life is deeply linked to the mechanisms or attitudes that determine the structure and functioning of society itself: unity of action, cooperation, and integration. Each action or matching program between the majority of the members in the group, since the dispersion dynamite the foundations of the prevailing social system. Common participation in all elements of the platform that underpins the social life, requires close and continuous cooperation.

2. Organization and Rules of Social Conduct

For operating conditions are unity, cooperation, and integrity, it seems inevitable that collective life has certain regularized channels of action, objective management, and regularization of cohabitation. This order is sustained and supported by a kind of pressure or compulsion that the group exerts on each of its members to respect and comply with the. But he needs the backing of institutionalized action gives the bodies have a specific remit to ensure q develop social relations within the established order.

3. The Main Regulatory Systems of Modern Societies

Among the various codes of conduct rules that the increasing complexity of social life has been causing, stand out as important 3: the moral code, the legal or regulatory code, and the code of social practices. They are the sets of rules that in a more constant and more intense, have always acted within all social groups to achieve the accommodation of the behaviors of individuals to model social and behavior. They have therefore been the main agents of control and organization of social life. We created a relationship of complementarity.

4. Law’s Organizing Role

The existence of societies and the proper functioning of social life seem impossible without the constant intervention of proper organization. They emphasize normative codes and especially legal rules. Amazing: unity of action, cooperation, and coordination in social life. The rules of behavior must be recognized as a vital element for radically proper organization and proper functioning of social life. ³ ta can not exist without the concurrent action of the various codes of conduct rules. His association with such rules, has been appointed as the law is so strong and deep that no society could exist without the law, nor shall be understood outside the context of social life.

Theme 3: Right, Power, and State

1. The Debate Over Power’s Role in Creation and Enforcement

Although the close link between law and power is generally admitted, there is disagreement about the meaning and scope of this link.

1.1 Law’s Attempt to Identify With Power

The thesis explaining law as a mere expression or manifestation of power has been championed since antiquity by various “philosophies of force,” from the Greek Sophists to the present. Many thinkers have linked law and power, reducing the first to the second. An approach of those authors (e.g., Marx): existence of exercising effective control on the Law of social subjects who monopolized the levers of power (reducing the right to power). Even Plato said “the stronger dominating the weaker”. In parallel, more recently, Nietzsche proclaimed that the law is always the result of conquest; there is no law without power, and the moment of force is congenital and essential to all law and justice. Other more recent authors have characterized the law as a set of rules defined to be incorporated in organization and regulation of the use of coercion, i.e., the implementation of physical force.

1.2 The Contrast Between Law and Power

Two positions: one affirming radical opposition and another supporting some form of convergence. The first holds that law and power represent essentially different and mutually exclusive phenomena, becoming radically opposed alternatives for action. Law represents ethically good social order; power and strength can only generate violent and repressive social order. Therefore, law has always been assigned the task of controlling the exercise of power within social relationships. The second view argues that law and power, despite being two different principles of action, are not incompatible but complement each other in ordering social relations. Dialectical relationship: dynamic and unstable compromise.

2. The Complementarity of Law and Political Power

As required by the very function that corresponds to each process within the organization of social life, relations between them have always been particularly close. The political power claiming the existence of the law since it is the instrument of rationalization of mandates from power. And, in turn, the law, from its own functional structure, demands the presence and support of a political power able to guarantee effectiveness.

3. Relations Between Law and the State

There is a mutual indivisible bonding whose scope and depth should be clarified.

3.1 The Conceptual Question of Primacy

Is the state the foundation and root of law, or is law the configurator agent of the state? There are three approaches:

1. Those asserting the primacy of the State: All positive legal order ultimately extends to the will of the state that sustains it. The State decides the existence and content of the legal rules; since legal rules seek to ensure that citizens perform certain behaviors, such rules must have the possibility to impose such behavior on all, including rebels.
2. Those advocating the rule of law against the State: While law may be thought and discussed whether the notion of state, it is only unthinkable in a vertebrate political organization by the law. ? nde there man, there is society, where society is RH, then where is man, there RH: The state has a birth much later than the RHS and is conceptually subject to this
3. Those defending the equalization and even identity of law and the State: Both are manifestations of a single reality. The state is no more than personification of the totality of positive law, and the law is the State as a normed situation. It is, therefore, two different words for designating the same scientific object.

Read p. 106 (abstract)

3.2 The Problem of Creating Law

A particular question: Is positive law an exclusive creation of the State, or is it produced (along with or without the state) by other bodies or institutions of social power? The first option is legal monism; the second is legal pluralism.

Legal Pluralism: This doctrine, focused on the real sources of law creation going beyond the strict limits of the state, seems to reflect a correct interpretation of the real genesis of the rule of law. Legal monism: It responds to an oversimplified vision that overestimates the importance of one creative agent (the state), ignoring the involvement of others. According to a more comprehensive view, although the State does not create all law from a material point of view (since it is not what gives rise directly to the norms of behavior rules), it is one that creates and enforces all law from a formal point of view because it is who is ultimately in legal norms and technically own and who makes it effective through the action of bodies of the state structure itself. Currently, the law, to enforce and impose itself as such, must be recognized, accepted, and supported in some way by the supreme will of the state.

4. The Legal Connection of Government: The Rule of Law

Throughout the nineteenth century, a broad doctrinal movement consolidated to define law in terms of the state and vice versa. This served to establish the rule of law: the State submits all its proceedings to the supreme direction of the values, principles, and rules contained in the respective legal system. Characterized by:

1. Primacy of law (which, as the expression of the sovereign people’s will, regulates all activity through a hierarchically structured system of rules).
2. Separation of legislative, executive, and judicial powers (as security for citizens’ freedom and a curb on possible state abuses).
3. Affirmation of the State’s legal personality.
4. Recognition and guarantee of individual rights and freedoms.
5. Legality of administrative actions and judicial control of the same.

Today, it is postulated that, for a state to be recognized as a true rule of law, it must be linked and subjected to a legal order built around the recognition of the dignity of individuals and focused on fulfilling the requirements that flow from that dignity.

Theme 4: Law, Social Morality, and Customs

1. Historical Evolution of Relations Between Law, Morality, and Social Customs

Overview: In principle, all social relations could be subject to legal regulation if they are valuable in terms of justice, but this has never been the case for more than a very small proportion. What has been the selection criterion? Indeed, the importance that each relationship has had to maintain group life.

1.2 Relation Between Morality and Law

It is affirmed that there was a long initial stage of near total indistinguishability between morality and law, with glimpses of distinction fostered by secularizing advance awareness and criticism. Later, during the Middle Ages and the modern period, the germ of distinction was systematically developed. Moral and law were closely linked as part of a greater reality: ethics, but understood as different realities. In the advanced modern age, the theoretical distinction between law and morals not only consolidated but was explicitly formalized in the seventeenth and eighteenth centuries through the efforts of Tomasi and Kant. According to Tomasi, the human search for happiness is supported by three types of rules: those of propriety (= rules of good manners), honesty, and justice. Honesty (= moral) tends to seek inner peace through conscience and is not coercive (hence, one must say that imperfect duties are imposed). In contrast, those of justice (= law) seek external peace, concern only the exterior of actions, govern relationships with others, and are coercive (hence, they impose perfect duties). This approach was taken by Kant and developed by him into a higher rationalization: moral laws refer to inner freedom, require compliance because of the law itself, are autonomous (in that man submits to fulfill his own rational legislation), and are not and cannot be coercive. On the contrary, law seeks to protect freedom in its external manifestation, requires external duties, is satisfied with outward conduct to the rule set, is essentially heteronomous, and is also coercive, since otherwise it could not meet its purpose. Fichte thought that this distinction may go to extremes of contradiction, because legal rules can be considered legitimate and even obligatory behaviors that are clearly prohibited by the moral law. Other thinkers advocated the integration of morality and law as two parts or elements of ethics and claimed the social dimension of this, as the traditional scholastic doctrine and the new trend initiated by Hegel. Today, not only has religious unity almost completely disappeared within societies, but also ethical unity: after religious pluralism and probably as a consequence, moral pluralism has become widespread.

2. Systemic Functions of Law, Morality, and Customs in Social Organization

Social behavior of members of human groups is regulated simultaneously by the three basic codes of regulations (Legal, Moral, and Customs), although the role of each code varies according to the nature of each behavior.

2.1 Complementarity Between Morality and Law

To decide on the type of systematic relationships that can (or should) exist between law and morality within a given social organization, one must consider two different factual assumptions: the existence of a single moral system and/or the presence of various systems of morality. In the first case, strict contradictions between morality and law do not seem acceptable; in the case that there is full agreement between them, in the sense that the law allows many social behaviors prohibited by morality. In the second case, it is inevitable that there are contradictions between certain moral norms and law, and there are undoubtedly a group of basic moral values commonly accepted by the vast majority of the members of society, while the existence of other values mismatched, leading, in this case, the discrepancies in real contradictions, pose a decision problem or choice, both for individuals and the community. Today it is thought that among those values, should show respect for inexcusably physical and moral integrity of persons, ideological pluralism, welfare and public health and legal and political security.

2.2 Complementarity Between Law and Social Mores

There is an important initial coincidence between law and social mores, not only in the type of conduct they govern but also in the basic orientation of regulation, as the behaviors that affect the orderly and peaceful social organization and serve, on the other hand, especially at the point of view of meeting outside the ordinary rules of conduct prescribed. The law has regulated those social relations which compromised the preservation of peaceful coexistence and orderly manner in compliance with the requirements of justice value. The Manners, however, have covered some or other social relations so long as such relationships are maintained within the scope of the timeliness and propriety, i.e., when the respective conduct affected only the harmony and elegance or “tone” and those relationships. The law and social mores have data, first a partial regulatory overlap and also abundant and referral relationships complementarity.

Theme 5: The Effectiveness of Law

1. Introduction

A complete characterization of law as a system of social organization cannot stay only in the analysis of differences between law and morality, or law and social mores or their relations with the political, economic, or religious; one must also consider the effectiveness of that system, which presents different meanings.

2. Different Meanings of Legal Effectiveness

Some authors recognize up to five different concepts of legal effectiveness, considering that legal standards meet their roles, though the goals assigned to them within the legal system. I. Ara holds that efficiency is the obedience of citizens to these rules or, in cases of failure, the operation of the penalty. This meaning has had more resonance among theorists of law. Effectiveness can be understood as the correspondence between the mandate of the standard and the aims pursued by it (or sociological notion of effectiveness); a rule is not effective when it serves to achieve the proposed objectives.

3. Legal Efficiency as the Adequacy of Recipients’ Behavior

The problem of efficiency, says N. Bobbio, is whether the rule is fulfilled by the people it targets (known recipients of legal rules), and in the case of rape, which is coercive means to assert the authority that has imposed. To link the behavior of recipients of legal rules should achieve an adaptation to social needs, adapting to social changes as they occur within society. The attitude to social change can be twofold: firstly, to create new legislation and, secondly, adapting to new circumstances without changing its structure or form, through the interpretation and enforcement of its rules.

4. Legal Efficiency as Achieving the Functions of Law

This definition of efficiency corresponds to the sociological notion, speaking FERRARI, although other authors call it social efficiency or effectiveness; it indicates the effects or consequences that legal provisions produce in relation to the purposes assigned to it. To check whether a legal system is effective, we have to preview what the functions of that system are. As RECASENS says, is trying to find out what are the general types of social human needs that every law is trying to meet, simply because of their actual existence.

4.1 The Functions of Law

Norberto Bobbio considers absolutely necessary the study of law from two perspectives of analysis: its structure and function. According to most writers, the functions of law are: social orientation, social control, conflict treatment and resolution, and legitimation of power. Other authors, as I. O, regards these as indirect functions, since they would direct themselves develop the existence and operation of the law, regardless of the type and level of subjective internalization of the rules by recipients.

4.1.1 The Role of Social Orientation

It is not trivial what law commands or forbids, because the effects of these mandates are not cyclical, but are guidelines that will educate society in a certain way of acting and thinking. The law is not merely a rule but overall guidance of behavior through the influence exercised by the members of each group.

4.1.2 The Role of Social Integration or Social Control

This function is the logical consequence of the above; through the orientation of individuals’ behavior, social control is achieved: any regulatory system that seeks to guide the conduct of individuals has a social control function. If these rules also have a coercive character, and legal, that role is growing. The means through which they exercised the function of law are varied, FARIS including teacher notes the following techniques:

• Protective and repressive techniques tend to impose positive (obligations) or negative (prohibitions) duties on individuals under the threat of a penalty or punishment. Technique of the classical liberal state.
• Organizational, managerial, regulatory, and public scrutiny techniques are those under which the law organizes the social and economic structure, defines and distributes social roles, empowers, regulates political intervention in social and economic programs by designing public policy interventions, and redistributes resources. Model used to model the transition from the social liberal and interventionist state.
• Promotional or encouraging techniques seek to persuade individuals to perform socially necessary behaviors. It uses law-incentive to those connecting a positive type of sanction, which may include issuing a reward or compensation for a particular action. Technique with deployment of the welfare state.

4.1.3 Role of Treatment or Conflict Resolution

This function observes that social relations are conflicting. Law addresses conflict not only from the courts, resolving, but their treatment starts when it is juristify in the legislative stage in the quota setting and management. The law also creates conflicts, what is called disruptive capacity of law, since the same social and economic transformations of the same law can lead to conflicts and even the court itself can be seen as producing the same, not only because it can be appealed to other courts, but because situation it has created is nothing but a change of status, likely to create new conflicts.

4.1.4 Legitimization of Power Function

Legitimacy refers to the acceptance or rejection of a proposed social legitimacy, and hence legitimacy is an issue intimately related to mechanisms for maintaining power. It is consensus among citizens, ensuring their adherence to the organizational model that is part of the law. FERRARI includes other functions such as the distributive function, the organizational integrity, repressive.

Theme 6: The Birth of Legal Standards

1. Approach

The larger question traditionally studied under the topic “sources of law” involves two separate issues: one for the identification and valuation of the agents of standard production and one for the determination of the forms or normative models used by the different creative agents.

2. The Social Subjects Empowered to Create Law

This identifies the agents in social organization with the ability to create new legal rules. There are few studies for the simple identification of these individuals and others to determine the hierarchy or order of importance for each one of them.

2.1 Identification of Subjects With Creativity

The attempt to identify individuals or agents of social organization that have the capacity to create legal norms faces several methodological choices: the first concerns the choice of social realities that can be considered agents, since there is no general consensus; the second option refers to the area where the search must be conducted.

The question of which social agents are empowered to create law can only be answered properly if put in reference to the subjects of social life actively involved in the process of creating the different sectors or bodies of law that is a Legal order.

2.2 Determination of the Role That Corresponds to Each Subject

It will hold that one subject who achieved prominence imposed in each case to all others. Referring to the legal state, now generally thought that the social subject known to possess full control of the creative activity of law is the rule, but also thought that, even if the rule does not necessarily have exclusivity. No wonder, therefore, that with him (and to some extent within it), other various social subjects who develop a constant creative activity of legal norms. This conclusion is supported by the finding that from the perspective of current models of political organization, the State subject appears as the only social organization that has a sufficiently capable of ensuring the overall effectiveness of its law.

2.3 Dimensions of the Question of Policy Subjects Creators of RHS

Doctrinal approaches related to these problems are often contaminated by political interests and preferences. It happens, especially when the speech is focused on discussing the agents must have that capability, but also when dealing with another task that seemingly neutral to explain or describe what those who have it today. This is because the problem affects the very heart of political struggle for control of the control mechanisms of social organization. It can be assumed, therefore, the conclusion of the practical impossibility of finding a permanent general validity response to the usual questions for the enumeration and the hierarchy of social subjects that have the ability to create law.

3. The Forms of Manifestation of Law

3.1 Identification of the Forms

The term “formal sources” designates the different regulatory models and types expressed in the rules that form the legal system. They are not actual sources but simple forms of expression or realization of legal norms. It is perfectly possible that any social agent creates law by any form or formal sources. The dynamic characteristic of social organization has always been accompanied by a high mobility of the forms used by different human groups to express the different legal forms that would govern the conduct of its members. In the Civil Code provides: “legal sources Spanish is the law, custom and general principles of RHS”; it should be noted that that list, traditionally regarded as exhaustive, it sets out in complete the various sources that make up really formal Spanish law. Should be noted international treaties ratified by Spain, the case law, the legal doctrine, fairness, and contracts and legal transactions.

3.2 Defining the Hierarchy

The great importance that has traditionally been attributed to the setting of priorities or hierarchy of the different “formal entities” was not in the true meaning of these sources, but that masked the real controversy: the fight for dominance of the subjects whose legal force or power, manifested through different forms whose primacy was struggling. We can analyze the problem of the hierarchy of forms of manifestation of the law without having in mind the crucial fact of political mediation. Today and supported by the vast predominance of the state, still occupies the top of the hierarchy in the vast majority of jurisdictions, particularly clearly in the inland. But despite the great strength they have at this moment can not be predicted how long it will extend the domain of legal and political concepts that underpin this vision, because this strength is constantly threatened by the onslaught of opposing views.

Theme 7: Characterization of the Legal Standard

1. The Nature of Legal Rules

To know what a legal standard is, we must ask about its nature. There are two main answers: a) the doctrine that the core element of any rule of law is an imperative or mandate it imposes on a specific target for proper conduct, and b) the opposite current, which characterizes standards as regulatory judgments or opinions about what should be done (imperativism and anti-imperativism).

1.1 The Imperativist Thesis

This has its roots in the old traditional voluntarism current, based on the assumption that the goodness (or badness) of a share depends crucially on whether such actions are commanded or forbidden by the supreme legislature of the whole universe, human behavior not having good or bad in itself, making the proactive authors concluded that the essence of law is in the mandate of the will of upper set which behaviors are good and bad behaviors. The laws are acts of the will, not reason. By mid-century XIX parliamentary activity itself contributed to legislative activity began to be seen merely as the result of compromises between different political parties. Consequently, the new imperativist definitively confirmed the thesis that law is a set of simple, bare mandates or acts of will of a sovereign power, which are directed to the will of the subjects. The legal rules are orders or orders from the ruling and were the direct expression of power control in a given society.

1.2 The Anti-Imperativist Thesis

The first anti-imperativist conception of law was maintained by classical intellectualism (also focused as voluntarism, in the laws established by God). This doctrine was based on the conviction that human behaviors are good or bad for their own content and in themselves, whether they are prohibited or mandadas.Y, precisely, are commanded or forbidden by the legislature for the goodness or badness that naturally have, the will of the legislature being bound by the trial of his reason, so that you can only send to prohibit behaviors that are themselves same good or bad. These doctrines have not had a full development until the end of s. XIX, being E. Zitelmann who first opposed to his doctrine imperativist trial hypothetical. H. Kelsen argued that legal rules can not be defined as an imperative or command because this, in order of a will is a psychological fact that belongs to the world of being, while legal rules pertaining to the world of duty-being. The rule is rather, according to him, a hypothetical trial in which states that a particular legal consequence (= punishment) should be implemented under the condition that a certain requirement or assumption (= the tort). (The formula representative of any legal rule was: “Is A, then it must be B”. For example, if someone commits homicide (= on the hypothesis that someone committed murder) is (= should be) punished as a murderer, a term of imprisonment less. Antiimperativista Another manifestation is the doctrine that defines the legal as value judgments about the behavior of subjects with certain performances or social events and, consequently, the law as a set of legal value judgments. According to this doctrine is the trial value in the rule that makes certain behaviors that without the rule, would be perfectly legal prohibited certain conduct and other, neutral in themselves, are imposed as mandatory. A third manifestation of the standard designs as an alternative proposal that recipients indicates possible policy options available to him. Are represented by the formula how? do X (= desired behavior) or you happen S (= penalty). These doctrines are forgotten, to some extent, the most important dimension and property law: being a rule of conduct that determines behaviors the subject must do or avoid. This is depriving the right of its most characteristic: regulating social visa by imposing a certain behaviors (positive prescription) and the prohibition of other (negative prescription).

1.3 The Affirmation of the Mandatory Nature of Rules

The legal rule is eminently imperative and always contains a mandate from a superior who seeks to bind the will of subordinates so that they act in a certain way. The rules are commands that have peculiar characteristics that distinguish them from any other type of imperative.

1. The mandates must be issued by a legitimate desire to set the standard, but this does not mean that everything that is sent is always the best and most convenient or most just.
2. The legal rule is characterized by becoming a stable rule of conduct for those who are subject to him.

The legal norm, in conclusion, while it is imperative, is a command emanating from the representative of the community will, which presupposes an evaluative trial and is aimed at rules of conduct in general and stable.

2. The Content of the Legal Standard

The content of legal norms is polarized around two central nuclei: a duty to perform certain behavior and a condition or situation to which the birth of that duty is attached. The first is identified as a legal consequence; the latter is generally designated as a factual assumption.

2.1 The Legal Consequence

The imposition of duties is the characteristic consequence or effect of the legal rule, accompanied by a recognition or award of correlative rights; advocates of this doctrine admit that rights are also part of that consequence. Other authors argue that the distinctive and constitutive feature of law is the imposition of duties, but the way these duties are imposed (i.e., the procedure used by the law to ensure that recipients of legal rules act as they indicate), consisting of this legal result in the sanction. Another thesis insists that there are other rules which grant powers or grant powers; these powers or skills are the legal consequence of such rules. It was also alleged that the legal consequence or effect of legal rules is itself at birth, modification, or termination of legal relations. It seems reasonable to conclude that the duty is always the nuclear content of all, or at least most, legal rules, regardless of whether the content of that duty is to conduct a penalty or proceeding.

2.2 The Factual Assumption

The birth of duties, which are the consequence of a rule of law, is conditional on certain circumstances or specific factual assumptions of legal rules. In other words, they are subordinate to the presence of the presumed fact. The assumption made is any reality that goes into the foreseeableion of legal rules as a condition for there to be the consequence. Kelsen argues that the assumption made is always a performance or wrongful conduct, i.e., conduct that the law seeks to prevent and, therefore, established as a condition to bring up the task of implementing a particular sanction, but this conception of the course in fact be unacceptable for an extreme reduction.

3. Logical Structure of the Legal Standard

It is possible to formulate a uniform logical framework to represent the internal structure of all possible legal rules; this scheme would be represented by a conditional statement (or hypothetical) which makes the appearance of an effect or consequence to the performance of certain acts: “is S (= assumption in fact) should be C (= legal consequences)” But what is the juridical reality understood to be included in each of the two items of the scheme? This is where the difficulty and where discrepancies arise. According to Kelsen, the pattern or model that reflects the logical structure of all legal norms is that of a hypothetical trial abstractly about the state will impose certain sanctions when certain unlawful conduct. Specifically, this structure is adequately represented in the formula “is A, must be B”, understanding that B is always an imposition of penalty and that A is (also provided) to conduct the implementation of which is linked (by decision of the standard) the imposition of sanctions as a must-be legal. This theory is unsatisfactory because of its extreme bias; we must recognize that legal sanctions are a very small sector of the total legal order, and concluded that the abstract formula of the logical structure of legal rules should be sufficiently open and flexible to it are represented all the many different standards that are integrated in a given legal system. Therefore, we proposed the formula “is S (= course) should be C (= consequence)”, representing fairly the conditional structure of any legal rule.

4. Characteristics of the Legal Standard

Under the doctrine of the rule of law, some authors discuss the problems with its characters or attributes, including a combination of justice, validity, binding effect, coercibility, validity, and effectiveness, but this view is controversial because some of these traits are not attributes of the rules, but differential character of law.

Theme 8: Classification and Systemic Integration of Legal Rules

1. Plurality and Diversity of Legal Rules

If we look at any existing legal system, we perceive a heterogeneous multiplicity of legal rules of the most varied types and different characteristics. Moreover, legal rules are not only multiple but also very varied. They differ sometimes by their origin, for the temporal and spatial scope of application, depending on the subjects that affect or other reasons. There is a need and usefulness of the classification of legal rules. In any classification, and besides all of the parties, there must be a reason or rationale (viewpoint) from which the classification is done. They have been given very different classifications (Von Wright, H. Kelsen, ALA Hart and L. Lacambra Legaz), although all of them complementary.

2. Classes of Legal Rules

2.1 In its origin
According to its source or sources from which:
1) legal rules (or written) are written rules have been passed by legislative bodies of the State (including public entities
subordinate and autonomous regions and municipalities). Ex law passed in Parliament,
ministerial order, a provision enacted by the autonomous communities. Usually
need a solemn act of adoption proving the existence of the same (eg
in BOE)
2) customary standards: The repetition repetitive det? Behaviors generated
calls legal customs that were important in ancient times.
Our Civil Code includes as part of the RHS in Article 1.1. For your
authentic existence as legal rules require that such behavior
carried out with the customary belief q are legally conduct
obligatory (opinio iuris).
In modern legal systems, often stated, there can be an unwritten law that you disagree with the law, not being admissible in the habit? Ntra legem?
3) The jurisprudential rules: These rules are derived from judicial activity
conducted by some courts. They have 2 forms: the doctrine of
repeated so set the Supreme Court and the sentence of a court (being
ruling that mandated by the governing relations between the parties affected by
sentencing).
4) The bargaining rules: These are the clauses contained in contracts or
legal transactions, as provided herein by the parties, forces
legally since the agreements are legal.
2.2 In view of the formal hierarchy or the rules of the place occupied in the legal
1) Primary: Those that occupy the highest range or important in the
legal system. The primary rule is the Constitution of each State.
2) Secondary: q Are occupy a lower level in the hierarchy of norms. His
inferior status is due to the fact of not being valid in themselves but
derive their validity condition of another rule higher (laws, decrees, orders
ministerial regulations, admitted actions ,…)
This has nothing to do with the classifications made by Hart and Kelsen.
Following a widespread doctrinal tradition for the classification of rules from the hierarchical standpoint, the approach could be combined material and forms the concept of sources of law. The result would be:
a) On the cusp of all state law would be the Constitution,
as supreme law that occupies the highest rank. It contains the principles and core values, protecting the rights and freedoms, it determines how the state and regulating the functions of different organs of the same.
b) In the case of Spanish law, then would the law. They can be
orgniques and ordinary. Organic: on the development of fundamental rights and public freedoms, those approving the Statutes of Autonomy and the general electoral system or any other under the Constitution. Are approved by the courts and require a quorum. The ordinary, approved by the Legislature to develop other constitutional requirements of normal life management.
c) decrees, regulations, ministerial orders and general provisions of the Admin., which usually develop laws, determine and define their content to be applied to social sectors and on different individuals. Are promulgated by bodies of executive power in any area of the Admin.
d) Administrative acts and court decisions. These rules are specific, individualized resulting from implementation of other standards. They are issued by organs of state administration bodies and judiciary (judges and magistrates).

2.3 For the degree of Imperata or relationships with the willingness of subjects
1) limited to: those are always rules requiring recipients,
regardless of their will and therefore have the obligation to act
necessarily in accordance with the requirements of rule, unable to decide the
implement a different behavior differently. Example: ra that the mortgage be validly
formed is essential that the document of the establishment is registered in the
Property Registry? If the demands are not met, we will not get the
desired effects.
2) Devices: Are those that may not be applicable to a legal situation
concrete by the express will of the parties. When individuals do not manifest
freely the will to establish rules for regulating their
own acts, the legal system, for reasons of security and certainty,
establishing a subsidiary regulation by rules of a supplementary nature.
2.4 From the standpoint of the violation and the sanctions of the rules
1) plus quam perfectae Leges: Are those whose sanction is the revocation of
the infringing acts, falling another kind of penalty on the violator,
especially to compensate for the damages that could have caused. Eg is zero
the marriage of those already linked before marriage.
2) Leges perfectae: Are those in which the violation occurs only
effect of invalidity of the act without yearling penalty for violators of the


standard. Marriage is void ie without intervention of a judge or official to whom should be held or without the presence of witnesses.
3) Minus quam Leges perfectae: Are those that do not establish the invalidity of
acts contrary to them, but set det. sanctions, penalties or effects
unfavorably on the offender. Q Ex employer not paying VAT.
4) Leges imperfectae: Are those rules whose breach does not cause the nullity of
action, or sanctions on the offender. Eg it is not easy or impossible to verify the
responsibility required to some officials. Some authors even when not
accept them as legal norms, prefer to refer to them as standards of character
moral.
2.5 With the scope of its validity
According to Kelsen, the formal validity of legal norms must be considered from 4
different perspectives: spatial (geographic area or territory in which a rule is
applicable), temporal (time period during which a rule is in effect),
material (material or regulated content) and personnel (subject to affecting the standard).
12.5.1 For the valid field of space
1) International standards: Are those who have their area of effect (formal validity) in several states. International Covenants on Human Dchos
2) National Standards: Are those whose validity is limited to State lasha enacted. In the Spanish legal system are distinguished:
-State or general: its validity extends to the whole state
-Autonomic: those emanating from the Autonomous Communities and apply
only within the territorial area of competence of each autonomy.
-Local: its scope of validity or effect is confined to its space
province or municipality within the State.
In the Federated States like Mexico or the U.S. would be classified:
– Federal: Applied to the whole Republic or Territory.
“Premises: Applicable to the component parts of the Federation or the
Homeland (country, region or district).
– Municipal: Valid in the territorial district of the free municipality.
2.5.2 In the field of temporary validity
Arguably rules are born, develop and die (disappear). They have a period of temporary existence.
1) Rules of limited shelf life: From the time of publication,
incorporated into the standard itself the length of their binding, setting the
period of time during which remain in force.
2) Standards for an indefinite period: Do not set a duration. The lost
when they are expressly or impliedly repealed by other legislation, or cd not being
applied rules become obsolete. The repeal is the deprivation of
validity of a law by a subsequent (derogatory).
2.5.3 For the substantial scope of validity
2 types are distinguished: public law and private law:
1) By virtue of their nature: rules are rules of public law
organization, whereas private law are standards of behavior.
This approach is unfortunate, since q can detect in public RHS RHS
private organization and behavior standards.
2) By reason of the subject-public legal rules are those in which the
parties in the relationship are at different level. The state, in
under its authority, maintains a position of precedence over the individual.
The rules of private law because the parties characterized the relationship are

in situations of equality. Nor does this argument seems valid, since there are many legal relationships in which state organs, which are public entities entering into contracts with private individuals, from a level of strict equality.

3) Criterion of Utility: Public law rules are those
predominantly inspired by criteria of public interest and pursue interests
community. Private law rules seek to profit from the
particular, protecting private interests. Although this argument is the most
decisive, is also insufficient, as it is not valid for all types of rules
legal.
In conclusion, with many exceptions and reservations, could be classified into:
1) Standards in Public Law: Constitutional law, administrative, criminal,
procedural international (public) and tax.
2) Rules of Private Law: Civil Law, Commercial.
3) There are areas or branches of the RHS that could be placed in a category
intermediate, since the characters presented are not mutually exclusive. Ex RHS
labor, social security, tourism, economy …
2.5.4 For the personal sphere of validity
Taxable persons are the recipients of the rules and active subjects are the creators of the standards bodies. From the standpoint of the validity of the rules by reason of the taxpayer, they can be:
1) Generic: Are those whose taxable person is a class or category of persons,
a plurality of individual members of a particular group.
2) Individuals: Are those rules requiring that only certain people, since they result from the will of the people themselves (eg related parties in any contract
will). Some people refer to these as individual privacy standards.
3) Individual: Are those that require or empower a person or persons
determined individually (eg, administrative orders and judgments).
Tb individual rules are called public.
Part of the doctrine has been discussed whether the so-called private and individual standards are or are not standards. However, it follows that all the rules, including the particular and individual, endowed with the character of generality that has any rule, since all, whether generic or particular individual to extend the validity of all the subjects that are included the requirements thereof.


2.6 As regards their quality or way of linking the willingness of subjects
1) Positive: Are those that allow for certain behaviors either a
act or omission. They can be:
a) prescriptive: They prescribe the conduct of a particular behavior
act or omission, and being provides, the permit.
b) Permits: Permits for certain conduct, ie, attributed
to a person the power to do or omit something. Not equal a
conduct that is permitted because it is commanded, whose realization is
mandatory that a behavior that simply is permitted, in which
case is voluntary. The binding is necessary for the carrying
out certain behaviors, the permissive, however, may not
s cases.


Negative or prohibitive: Those that prohibit certain behaviors
are action or omission.
2.7 For the function or purpose
1) Netiquette: Regulate conduct of commission or omission. His
immediate objective is to regulate the behaviors of individuals and
group activities and social institutions in general. They themselves
full meaning as that set det? precepts and charged against the
violations of the sanctions prescribed behaviors det?
2) organizational rules: They are those that contribute to the effectiveness of standards
behavior because they define or clarify its terms (and defining standards
interpretation) or set the conditions for its implementation (standards
propiam organization. such, procedural or competition), or
excepted the scope of its obligation (permissive standards), or accompany a penalty in the event of breach of standards of behavior (rules on penalties).
3) Rules of application: Those relating to the initiation, duration or termination of the validity or binding of a standard. These may include: repeal laws when their mission is to completely abolish derrogatório previous standard, when the abolition extending certain provisions of the law or the order.
4) statements, explanations or defining: Are those that explain or define
terms used in other statutes.
5) Standards permissive: They establish some cases of derogation from the obligations imposed by other more general rules.
6) Rules of interpretation: Its purpose is the interpretation of other rules.
It is rare that the law be interpreted with any law for whom the diet. This would recognize the darkness of the standard and incompetence of the legislature to draft one. So are the legal practitioners (including judges) who interpret the rules outlining its true meaning.
7) Provisions sanctions: The legal course of these rules is the breach of duties imposed by the penalty provision.
8) organizational rules of procedure and competence: The legal norms of behavior, since it is enacted, require for their effectiveness, a number of organizational elements, material resources and instrumental and personalWithout which their operation would be impossible. In the legal system requires det? organs and bodies established by regulations that the organization and operation thereof within the civil service. These are the organizational rules. Some rules determining the powers conferred upon these bodies to develop their role: they are the competition rules. And further down the procedures and modes of action of the organs of the Admin. or the Courts in the exercise of its powers and procedures available to individuals in the exercise of their rights within social relations. ³ tas are the rules of procedure.
3. Systematic integration of the legal rules
We can say that the whole legal order is a real valid formal hierarchical system in which rules are dependent on other (dependency relations), and cooperate with all other standards play in every moment of their role, thus complementing the effectiveness of the entire system (relations of coordination and cooperation).
Ultimately, all the multiple views on the classification rules are harmonious and organically integrated into the system we call law.

ITEM 10: THE CONCEPCI? SISTEM? ICA LAW
1. STRUCTURAL COMPLEXITY OF THE LAW

The interdependence and complementarity of the different operational rules
which comprises a system of law is not just a building
doctrinal imposed by the need for consistency of legal science, is primarily a normative requirement of the law itself, since the very social function of legal norms, that is, its peculiar mission to establish the channels within
which have developed behaviors of citizens, requires close
coordination and interdependence.
All legal order is composed of a multiplicity of standards internally diversified from mMANIFOLD viewpoints that are not isolated, dispersed and mutually unrelated, but are almost always integrated into joint or unitary regulatory systems, such as codes, laws, regulations, statutes, ordinances, etc.., internally organized in parties, Diplomas Sections, Chapters, Sections, Articles, etc..

2. FUNCTIONAL UNIT STANDARDS: THE IDEA OF ORDER
JUR? ICO

Factors that could reduce to unity the scattered multiplicity of standards that comprise a historic law are four: the spatiotemporal coincidence, joining a political ideology, the reference to a single central authority and the bond of mutual referral or functional connection .
1) spatiotemporal coincidence of the rules. Standards are linked to actual social life of a human group that is politically organized and occupies a territory whose geographical boundaries delineate the space of a community self-sufficient life.

2) Linking to a political ideology. The alteration or maintenance of the principles that shape the political ideas of the same society will transform you or perpetuating the orientation and sense of order itself and the various regulatory blocks in it.

3) Reference to a single supreme legal authority. These rules, whatever their actual origin, are worth as rules of current law because the State and accepts and applies them.

4) The ratio of reporting lines and unites precepts
legal with others.
One can argue, within the vision of law as a hierarchical structure, that all standards are linked by a dependency relationship, as each link depends on the degree or another and, in turn, sustains others.
3. THE IDEA OF SYSTEM: SIGNIFICACI? AND IMPLICATIONS
The main rule, according to Kelsen, is the beginning and the end of the unit and
coherence of the system, acting as a source of character originante
systematic, this author being accused of that by explaining the systematic nature of
system has been set only in the purely formal or procedural dimension of his
existence, so that his doctrine would lack sufficient strength, since it seems difficult to speak of the system when there is only unity among the rules regarding the manner in which they were created, but not in regulatory content.
It has now acquired full strength point of view that explains the law as a systematic constitutively normative reality, ie a set of rules that works uniformly, so that among the many provisions in this rule never occur contradictions.
The use of the phrase? Legal Stema? Iene two meaningsThe first is that you can eat? Stema deductive? Which is the same as claiming that all the rules which are included logically derivable from some fundamental legal principle. A second meaning is that? Stema scientist? Meaning that science is a material capable of being explained by a unified and coherent logical construction in which all are neatly integrated conceptual elements that represent it.
Consequently, when states today is or was a regulatory system can only mean that, within different legal systems, rules are linked by the bond of functional coherence. And that means they can not survive inconsistencies or contradictions between these standards (= negative content of the systematic nature of law) and that otherwise, inevitably has to be a relationship of mutual complementarity between them (= the positive content of the systematic nature), so that all rules contribute harmoniously to the achievement of social objectives that attempt to make every law.


ITEM 10: MEANING AND SCOPE OF THE PRINCIPLES OF COMPLETENESS AND
CONSISTENCY

1.La doctrinal elaboration of the principle of plenitude
The origin of the theory of fullness must be linked to the doctrine developed by the commentators and commentators around? SAPS Iuris? The principle was incorporated into most state legal systems indirectly through a provision in the which imposed the duty of judges to act legally inexcusable on any issue they face litigious.
At the turn of the nineteenth century began to flourish in various streams of thought that emphasized the mobility of law, emphasizing its openness (and therefore incomplete) and advocate of free enterprise in the judicial courts.
Thus the classical dogma of fullness Comenzto falter, but did not totally disappear. But the experiences preterit forced its defenders to critically review and rethink this dogma, giving rise to 2 paradigmatic theories: the legal space of the vacuum and the exclusive rule. But the picture drawn by these 2 theories should be completed today with reference to a new point of view: the one with the doctrine of fullness or functional potential.
Both theories seem to assume the existence of conditions or social relations for which there is no legal in specific regulatory standard, but conclude that these cases do not contradict the principle of fulfillment of the legal system since it forms part the relevant case in which this principle operates.
1.1 The legal theory of empty space
Formulated initially K. Bergbohm and later defended by S. Romano.
Part of the principle that, from the standpoint of law, the field of activity
human can be considered divided into two sectors: one where the activity is bound by legal rules and that that performance is free. The former may
qualify as full legal area and the second as legal space empty. Thus
Therefore, in the field of legal regulation in the RHS, there is no overdraft or
gaps; what falls within the boundaries of the organization can not be considered
as a vacuum system, but as a reality that is beyond their reach
action.
1.2 The theory of exclusive rule
According to this theory, developed by E. Zitelmann or D. Donati, there is no
area of human activity that is left out of legal regulation and in
therefore has to be classified as? ridic empty? All social activity
of men is governed by a rule of law, as those
behaviors that are not included in the regulation of the legal
individuals fall under the regulation of an exclusive rule, whose mission
is precisely to exclude specific regulation of the particular rules to all
behaviors that can not be identified in the case provided by these rules.
Thus, the legal regulation reaches all conduct and it is not possible to give a single case for which there is no positive law in some form of regulation.
1.3 The doctrine of fullness or functional potential
If attached to the fullness of the law that it always has
can somehow resolve any factual situation as it arises
(sense 1), we must conclude that the law is a complete regulation without gaps. If,
however, in the fullness means that there is always some law
specific positive rule adequately solves the present case (meaning
2), it should be recognized that any legal system becomes permanently full.
Thus, we conclude that the law always by its own virtuality the principle of plenitude, as it is finally resolved one way or other situations where there is no rule that specifically applies to the case raised. However, this fullness can not be understood as a feature or element of the static structure of law, but must be explained as a fullness or functional potential, since it is reduced to the mere availability of adequate mechanisms to resolve any possible course.
This is the sense in which today can claim the fullness of the right: never will be the case that the ordenam. lacks adequate legal response to resolve factual situation arising cq social life
However, legal experience gives us evidence that there are constants
multiple cases of social relations that are not directly and specifically
under the rules of the respective order. The law is not completely full.
2. Overcoming the loopholes
2.1 Methods of heterointegración
The heterointegración is to overcome the loopholes of a specific system by implementing rules that belong to another completely different system (in the literal sense) or a section of the order itself that is different from that which occurs in the lagoon (in improper sense). Today, it is not uncommon for heterointegración own is channeled through the resort to the application of certain rules that belong to other jurisdictions juridic positive peers (the codes of other states or nations, international declarations and covenants, etc.). In improper sense, the? Laboration? Mong different sectors of the system may occur in the area of statutory law itself. Typically, however, that such heterointegración is done by recourse to customary law, decisions or guidelines, case law or legal doctrine.
2.2 Methods of self-integration
They are characterized by trying to fill the gaps through the application of rules or principles pertaining to own area of law they have
produced such gaps, whether the general order, and one of the sectors or subsectors belonging to that system. The most common methods or manifestations of self-integration have resulted in the use of analogía (similar argument) and the application of general principles of law, both channels usually explicitly recognized by most jurisdictions. It emphasizes the existence of 3 types of analogy: the analogy itself or law (above), the analogy of law and the analogy for broad interpretation. When using the analogy of law, what is done is to find the solution, not a rule governing such a case, but the orientation of the entire legal system or a sector thereof. And, by recourse to broad interpretation, it
you do is include some of the existing specific rules not covered the event via this which is especially useful in areas of management that is banned the use of analogy itself, as in criminal law. Recourse to general principles of law are like the core criteria or guidelines jur orderidic force and are (apparent or hidden) in the rules, institutions, political and legal principles in constitutional and national legal tradition. These principles will be expressed when positive rules are couched in legal or constitutional in nature generalissimo, and thus have a dual legal nature: they are principles and, simultaneously, positive standards. The appeal to them not always presupposes the existence of a gap itself, but can be reduced to a simple case of applying a general rule in the cases mentioned in it. Unexpressed The general principles are not immediately visible in the positive norms and must be discovered by the interpreter through a process of abstraction that some of the rules of the system to get the spirit of the system, a spirit which is embodied in these
principles. The use of them is a true process of overcoming
gaps, and when was inspired by the presence of a regulatory vacuum, ie,
the absence of a positive rule governing any case det.
3 The possibility of an inconsistency between the legal
The law admits no contradictions or antinomies strict. Today, the argument that the
law is or is a system with internal consistency has become a commonplace in the discourse of the jurists. Justinian plasma and this
beginning at the start of the Digest.
However, the data provided by everyday experience seems to support the
intuition that the historic rights (ie the laws of the
different societies in their different eras) are complexes of norms between
that there is full consistency. So is opening a path of acceptance
s between certain provisions of the same legal system.
It is preferable to speak of contradictions? Sposiciones legal? More than? Ntradicciones between rules? Can say that there is a contradiction between two legal provisions when the simultaneous application of both provisions to a
same factual situation would produce conflicting legal consequences. Provisions
legal => normative statements contained in articles or parts (paragraphs or numbers)
articles.

So, so you can properly speak of the existence of contradictions or antinomies, this could be the 2 requirements or basic conditions:
1) That the provisions identified as belonging to a contradictory
same body of legal rules that constitute a unit autonomous, ie that reality is usually employed with the legal name.
2) That the two provisions have the same level of personal validity,
material, spatial and temporal
One of the classifications that draws on the nature and scope of the
contradiction, distinguishes 3 types: total-total, partial-partial and full-partial. The first
appears when you have conflicting provisions identical scope of validity
all its manifestations. The second occurs when you have a scope of validity is
in an equal and distinct part and the third, arises when a provision
opposite has unlimited validity field while the other has it restricted.
4. Criteria for resolving contradictions
As the conflict between legal provisions is the presence
simultaneously, within a legal system, to two provisions that are
incompatible with each other, the way of overcoming this situation seems to necessarily entail the elimination or neutralization of one of them. But how to decide? A single criterion should be: justice. But we know from experience that it can scarcely be used because its meaning and its own content have always been subject to endless discussions of theory.
Therefore, jurisprudence and the science of law, through a secular
practical and theoretical activity, several rules have developed other solutions, which have a
greater degree of objectivity and that have become commonly accepted. Such
rules, known for their general acceptance these three: [1] that of the later
chronological (? and later supersedes previous law? [2] the hierarchical superiority
(? and repealing top to bottom? and [3] the specialty in the regulation (? and special
supersedes the general?
If the emergence of cross-contradiction between the 3 rules, the doctrine has
tried to decant through legal practice, with criteria which, though lacking
strong authority, have been acting as prevailing guidelines. Among these
doctrinal criteria, have always emphasized two: that the rule be imposed hierarchical superiority almost always the other two and that rule of specialty is stronger than the later chronology. But there are cases where q specialty rule requires the hierarchical superiority, and cases where the chronological defeats after the specialty, but they are exceptions.
In extreme situations, which seem to be closed to the application of any rules explained solution, the solution of the conflict lies with the interpreter, who will be resolved based on considerations of fairness and opportunity.
The respective legal systems often provide an array of solutions that are not depleted in the hierarchical superiority rule or regulation of later chronologically, but also include other special criteria for interpretation and possible recourse to equity as a principle inducer of the decision.



ITEM 11: PRINCIPLE, RULE OR STANDARD AND LAW

Legal 1.Principio
1.1 Nature of the legal principle
Overall, it can establish that those principles point
behaviors that are considered valuable andTherefore must be performed. They are a type of rule, therefore, action-guiding and prescribing or prohibiting something. Moreover, when analyzing what are the rules (genéricam. speaking) can be defined as the set of Ppios or rules of conduct that govern community life and are one of the instruments of social control that is holding the organization society. From this definition, we classify the rules in 2 blocks: the guiding principles and rules (both under the sign rules of conduct). Characters of the principles and the rules differ from the rest:
a) They are fundamental reasons for establishing the foundations for action. Explain why it should be or not a behavior.

b) They are generally prescribed in a generic way, mark the boundary that should not be crossed.

c) It is not definitive or conclusive, are simple guidelines which are considered optimal, can be fulfilled in different degrees.

d) does two things: validity and knowledge; defined behaviors aq valid and help lines are known ntra q must guide action.

e) are open standards that lack a factual determination, we do not know when to be clearly applied.

f) Not necessarily determine the decision, only provide reasons for either q options are presented as alternatives.

g) have a dimension of weight. When a collision between 2ppios, one of them is given more weight without invalidating elotro.
Not all doctrinal currents show these characters.
We started with the idea that the principles are a class of rules, but there is another position that did not support it. Professor PRIETO Sancho? disagree with the characterization of the fundamental principles and rules. He also disagreed with the distinction of principles and rules. Indicates that if what is meant is that some statements can themselves function as principles or rules and that this way of working is different, then we are not referring to 2 types of rules, but 2 types of interpretive strategies.
Larenz not seem to regard them as standards. For him, the legal principles are the thoughts directors of a specific legal regulation, whether existing or possible. They are still not implementing rules, but can be transformed into rules at any time. Distinguish 2 functions that meet the principles:
a) positive function is performed by the influence they exert on the subsequent decisions and the content of the regulations that are created as a result of those decisions. So that all the rules that arise in applying a principle are subsumed in the
same.
b) negative function: values is contrary to exclude them and
rules that rely on these values. Thus, the regulation is unfair that suits these principles.
For him, the principle is not a type field within the rules. The principle is the basis or justification criterion of office capable of
application. It is the initial basis for regulation. The standard is the mandate itself, which can be applied in an immediate way, is the realization of the principle.

Is it the same value that principle? ALEXY maintains that principles and values are the same, but listed under different aspects: the former refer to the field of duties and the latter to the Value field (right or wrong conduct). For other academic writers (Atienza and Ruiz Manero) can not distinguish Ppios values, or the rules because they are blurred in both. Thus, any legal rule can be differentiated 2 elements: a) a guide to behavior (standard in the strict sense), b) an analysis of the behavior (justification). Therefore, in Ppios are both elements, which implies that the values are placed within them, are subsumed. The difference is Ppios q in the stands and the normative element in the assessment values.
1.2 Typology of the legal principle
Following professors Atienza and Ruiz Manero, can be grouped into:
a) Principle in the strict sense and principle as a guideline program. You use the
first term in referring to the law which expresses the highest values of a
ordering (eg Article 14 of the Spanish Constitution). The guidelines are the rules
which establish the obligation to pursue certain social goals.
b) Principles of the primary system (the subject) and early secondary system (for
legal bodies). The first target to guide the conduct of citizens
common, those who do not exercise regulatory powers. The second are those who
legislation intended to guide the actions of the bodies that create or implement the
standards.
c) Principles explicit and implicit principles. The explicit are expressly
made in the legal system and implicit must be deducted from
statements present in the legal
We conclude that the law consists of rules and that a specific type of these are the principle, which play a specific role of leadership and guidance within the legal system.
2. Rule or regulation
Like any rule, regulation also seeks to prescribe the conduct that it considers appropriate for the proper functioning of community life.
Initially we define as a specification of the information contained in the principles and these, in turn, an embodiment of values.
Differentiating characteristics of regulatory block are the rules:
a) They are secondary to the principle. It is part of the reason for action
we provide them and the rules are developed.
b) They are less general, models that prescribe behavior in a more
specific and complete.
c) They are final or conclusive, clearly determine the behavior to be
perform or avoid. Not open to different interpretations.
d) They are closed standards that clearly define the factual situation.
e) Determine the decision necessarily, indicate a transparent way what
consequences of a particular action.
f) Do not have a dimension of weight. When there is collision between 2 rules is chosen
one that is applicable and override the other.
We should examine what role the rules within a legal system. A typical function of the rules is that they are addressed to individuals. For this they have 3 mechanisms: a) positive or negative obligations imposed on taxable b) ensure that no one will interfere in the pursuit of self-interest, and c) give the possibility for individuals to increase or decrease the two previous mechanisms
But standards can also have the task of promoting social interests, in this case and the anus are sufficient rules, we need to go to the guidelines (principles in a broad sense).
Finally, computers are required to use principles (in sense
strict) comprising certain values considered superior to any reasons
interest.
He has also maintained that the existence of rules preventing judicial arbitrariness and promote legal certainty, as the ideal application of such standards has been the subsumption syllogistic (Prieto Sanchis) is part of a major premise (in a case referred norm), continue on the minor premise (the behavior prosecuted) and concludes (legal consequences).
Due to the vision is highly regulated (prescription of behavior
through rules) that has dominated the law has been referred to the rules
as rules strictly, hence often refer to this type
calling it variously as legislative rule or as a yardstick for comparison. As an
conclusion, we hold that the term standard can be used in two ways:
a) broad sense, and b) the strict sense. On 1 as a set of principles and rules
make a specific order, guiding and determining the conduct regulated by the legal system. The 2nd to refer exclusively to the rules.
3.Ley
3.1 Concept of Law
Due to the extremely regulatory division that has dominated the law has been referred to the rules and regulations strictly, hence has been referred to variously as such rule or policy as a norm. It is not unusual to meet with the identification of both terms. Taking up this position we have maintained that identifying the standard concept can be used in a broad sense (all Ppios or rules) and in a strict sense (a set of rules).
We can differentiate 3 levels in the conception of the law. The 1st is the broadest level, in which the law appears as any rule of law, the 2nd is a more practical level and it is conceived as a written rule of law emanating from some
institution responsible for it (laws passed by parliament, issued the
government ministries and other public organization cq), at the 3rd level is reached the strictest sense: the law is the written rule of law emanating from the legislative (regulations issued by the parliament).
Under the Spanish legal system the law is cited as the main source of law, ahead of habit. In considering how to understand the law within the legal system, emerge 2 theories:

a) The parliamentary monism: Maintains that the law is the supreme law of the
legal system. Therefore responds to the formula: Law = Constitution. The law can deal with any subject and there are no areas reserved for their regulation. It’s strange use of the term law in a way so restrictive than the talk of the fundamental law

b) Germanic Dualism: distinguishes between formal law and material law. The law in the formal sense is when is an act of the legislature (rules emanating from the parliament). In a substantive sense refers to any rule q contains a legal rule, whatever form it takes (it seems that
identifies law with rule).
A common feature of most of the senses we use this term is to hold nature of written law. Another note is its origin state, the State being the source and creator of all laws. It has also been attributed generality,
understanding the rule of law as a vocation to apply as many subjects and
cases. It was also noted its production through a specific procedure. With all this, we give a definition of law from the two areas mentioned (wide restricted): A broad concept of law is one that is defined as any general written policy from the State and elaborated through a procedure. If we add the need for parliamentary provenance have restricted the concept means any written rule exclusively from the legislative branch (Parliament).
3.2 Primacy of law
This triumph of the written standard has been through two major tensions (Santamaria):
a) The tension between form standard written policy and unwritten (customary):
It occurs at an initial stage, which were in the customary in most primitive peoples. The custom governing collective life of peoples. But in a det. time, the monarch wants to assert its power to dictate written rules. This tension is resolved with the complete triumph of the law of state production (late eighteenth century).
b) The tension between the monarch and assembly: when the cameras representing the crown face trying to take over the creative potential of the written rules. From s. XVIII, with the triumph of rationalist natural law, it revitalizes the role of law as the main source of law, in order to achieve greater realization of justice in society, ending the uncertainty posed by the current dispersal and trying to stop the absolute power subject to the same law. However, the
victory will be for the monarch and the written policy becomes an instrument of that power to subjugate the citizens.
Subsequently, the appearance of the constitutional state with the Atlantic revolutions that led to American independence and the triumph of liberalism in Europe, sanctions the law as an expression of general will and, therefore, becomes a paradigm of the written rules, while the dominance is reversed monarchical outside Parliament.
The law reaches its maximum dedication to the movement codices, which succeeds the form of codes to collect all the laws in force one the various legal fields. There is a total identification between law and law. The state appears as a monopoly of law-creation.
3.3 discredit the law
As we move into modern societies the law is losing strength, it was found that, in daily practice, it is very difficult to maintain its permanence and stability. The law as written rule today introduced two characters that previously did not possess: the complexity and diversity.
The reasons that point to this loss of importance and the law are:
a) Crisis state-legal system: The emergence of supranational rules (rules of international organizations), infra rules issued by agencies (regional policy, local, etc..) or extraestatales (collective agreements, statutes or internal regulations of associations , companies …) has weakened the statist conception of law.

b) Crisis of the liberal features of the law. This overabundance of laws that have cited causes the citizen is increasingly disoriented, because it is difficult to be aware of the rules published in the various gazettes, which is detrimental to the certainty and legal security. The same phenomenon causes the building is cared less laws, promoting double standards and cumbersome and, therefore, attack their rationality. Moreover, e tb has lost part of its generality and abstraction pede because today no longer reflect a uniformity of values as before. Today there is a plurality of values and the law must accommodate them. The first of the above reasons, is a cause of weakening the statist conception of law.
The law retains a privileged position, nevertheless, with regard to other legal sources, mainly due to 4 reasons:
1) The interest of lawyers in order to maintain its position in making
legal-political decisions. For the lawyers had better to refer to the law to argue their position, this implies a dominant position.
2) The effectiveness of the law as a means of regulating
behaviors. The law is a simple mechanism to determine what behaviors are to be performed or avoided in which community life and also in the population generates a sense of obligation to perform this behavior, other sources not generate RHS.
3) Your writing and public nature continues to ensure completion of some legal laseguridad. Being published and easily searchable by the public provide a degree of security not offered by other sources.
4) It is a law that establishes and organizes the sources of the systems
concrete legal. All current legal system is founded on the supreme law is the constitution, but that, after all, is a law.
ITEM 12: staffing, capacity JUR? ICA and capacity to act

1.Raíz and content of legal personality
Have? Rsonalidad legal? Quivale to be in possession of the principle or power q makes some actors of social life in subjects protagonists in the complex web of legal interactions. These actors are called? Rson legal? The word? Rson? Born in theatrical jargon Greek classical times to describe the mask he wore for some actors are better identify with his character. In the classical period and post-classic, this term is sometimes used to designate what is called today? Rsonalidad legal? set of rights and duties of a given subject.
2. Events
a) The doctrine of natural character: For many centuries remained the conviction
that legal personality was an attribute of human beings. It was understood that the attribution of legal personality to men was a necessary and natural consequence of socialized existence. This doctrine of legal personality naturally faced with at least 3 historical facts belie that. On the one hand, the fact that not all men have had such personality sp, or, when they had, have been the same. Furthermore, the notes-tion that there have been legal persons are not human beings in the literal sense or even consist of human beings. And finally, the finding that there is also often the assumption that social entities, with some recognized social personality, fail to receive the recognition of legal personality.
b) The doctrine of artificiality: Legal personality is a creation or construcc. RHS own technique, q has significance only in the respective field of law and q is not a simple derivation, accordingly reflects the personality or extralegal. One thing to be a man, be human, and another to have legal personality (H. Kelsen).
The doctrine of reconstructed character: Legal personality is not simply a natural quality of men, but an attribute that they have to be members of a legally organized. So which is the RHS gives the company and its respective members of the legal dimension. However, as the RHS itself is, in turn, a reality whose existence is required by social life that, ultimately, the legal person-ality is like the mode of existence that it is for men as members of society.
The relationship between the human personality of individuals, social and personality
corresponding legal personality is very close. The latter is always born within the tight circle q are the man, society and law. So it must be understood that there is a duality between individual existence as a human and social existence as a legal person. All men should be recognized as legal persons, as the legal personality naturally falls to the individual.
3. Attributes: passive and active capacity
The core or essence of the legal personality is represented in the two types of possibilities of action attributed to their holders: the legal capacity and capacity
act. The first is predominantly passive and fitness can be defined as having any legal subject to be the holder of the corresponding duties dchos and generating relations juridic in intervening. It is the core element and the stronghold of the legal minimum, so that if a social agent either without power, no person could be described within the scope of the law. Who lacks the passive legal capacity is not a legal person. Attribute is a good or excluded from the free disposal of the holder of legal personality, also being radically separated. The second is predominantly active and equivalent to fitness that is the subject for itself acts endowed with legal force. It is a quality divisible: it can also be capable to perform this kind of legal acts and at the same time lacking the ability to perform other (active legal capac. special or limited). Or you may be able to perform legal acts cp type (capacity tegral, full or unlimited). The scope and extent of its contents are sp subordinate to the delimiting effect of several factors or circumstances that facilitate, hinder or impede the legal self-governance initiative of the subject. Are these factors or circumstances in each case fixing the ceiling of his expansive (-imp-status, nationality, disease or physical or mental defects ,…).

ITEM 13: SUBJECTIVE RIGHT AND DUTY JUR? ICO

1. Subjective law: nature, and manifestations.
We will select some points able to give a thorough account of the role
plays the operation of existing legal systems.
1.1Naturaleza
a) The theory of the will: In Savigny and Windscheid, is a subjective right
power attributed to the will of the subject, one area of? Noria will? one
sphere of autonomy that the law makes available to the individual,
together with the corresponding protection. This sovereign power of initiative
individual will be manifested, in 2 directions: either causing the
birth, the change or disappearance of their own rights, or any other subject requiring performance under the rule protects the right itself.

b) The theory of interest: According to Ihering, the individual right should be characterized as? legally protected interest? ie as that interest which is backed by legal protection, whose effectiveness depends on the initiative of the holder.
Jellinek, defined as the subjective dcho? interest protected by the legal system through a power attributed to the individual will? the interest the subject has in relation to any reality of the social world, although it is necessary the presence of legal regulation to make available the relevant subject protection ordenam.
c) The theory of the legal position: It reduces to the right in a kind of place or position of the subject within the dynamic structure of legal systems (Kelsen). According to Kelsen, the? Recho subjective? Or is more than the possibility that certain rules recognize the subject of operationalizing the mechanisms under them to ensure that other subjects fulfilling the duties juridic placed upon them. To this extent, it is a different reality of objective law. Then Kelsen’s doctrine concludes that the subjective dcho is only a sort of legal position that the rules places the subject to put in his hands the possibility of triggering the process leading to the achievement of the expected consequences on the own rules.
d) Other theories: Next to the 3 theories analyzed (interest, personal autonomy and policy), have been developed several others, some attempted to define the legal right through integrators multidimensional concepts that combine several of the 3 basic elements identified. And we have other doctrines in which the concept of subjective dcho was weakened to the point of being totally
was radically irrelevant or even excluded.
e) The problem of the relationship with the objective law: According to a traditional view, of a naturalistic, subjective rights are inherent properties and legal subjectivity existed before the political laws that regulate their exercise, so that they will only falls the task of ensuring their protection. But according to the approach of positivist legal doctrines, the subjective dchos exist only in so far have been recognized (ie, created) by the laws of the respective companies.
1.2 Content
According to the explanatory model of the traditional doctrine, the contents of each individual right is adequately represented in the set of possible actions or powers that right gives its holder.
The powers that are the content of subjective rights available to the owner a subject area or field of action that contains these 3 key areas:? Oy enjoyment? Sposición? ? etensión?
Under the right to use and enjoy the individual right holder attaches to several possibilities to make peace and freedom in the actions that the law itself guarantees. The possibility of file on it is the power to make final decisions on their exercise, maintenance, modification or termination, within its own structure or the relevant regulation imposed. Subjective rights also should ensure the possibility of bringing a series of claims aimed at removing him from the other subjects in their own process of realization.
But there are other more novel interpretations. Currently, a separate
significant doctrine tends to limit the content of subjective law through
consideration of two fundamental elements which, according to this view, what ultimately defined: the legality of the action and the legal claim. The legal right also includes the allocation to the subject of the possibility of coming into operation of the legal guardianship in the event that the peaceful enjoyment of that sphere of freedom is disturbed or threatened.
1.3Manifestaciones
There is an abundance of sorting or grouping criteria to subjective rights. We will see the most significant manifestations.
1.Atendiendo the scope or extent of the possibility of requiring sucumplimiento, the subjective dchos traditionally have been divided into absolute and relative. The absolutes are giving rise to a general duty of respect. The attribute on a faculty or power that snly can be exercised against the subject or subjects who undertook to perform a specific behavior. It was also noted that dchos? Solutes? Generate characterized by predominantly negative duties (obligations to refrain from behaviors that harm or disturb their peaceful enjoyment), while? Cerning? Ueden duties lead to negative or positive obligations. At the same time, it has been argued that the absolute dchos can manifest at two levels: as a very personal dchos or dchos concerning the person dchos itself and as actual or objects falling on the subject from the outside world.
2.Atendiendo the nature of the powers and possibilities of action queatribuyen, has distinguished between subjective dchos freedom (ability to act freely) of claim (referring to the conduct of persons other than the owner, another possibility to require that perform a behavior or performance decarácter positive) and the legal modification (attribute the power to make decisions concerning the existence of situations, relationships, dchos or legal duties, either to induce birth, modify your settings or extinct).
3.Por reason frete the nature of the subject that you have the interest or power
legally protected, there are the subjective dchos public, which confer powers corresponding to the subject in its relations with the state, private and subjective dchos, the contents of powers or possibilities for action is immediate correlate the behavior of particular subjects.
4.Suele included also an old tradition which is set mainly in the
referential term object or attribute of power, the distinction between dchos
obligational real and subjective, depending on the powers attributed to
subject affecting the availability of things or control over the behaviors of other
people.
5.Atendiendo to the depth of the roots that sustain their existence and their importance within the legal system, has accepted the distinction between subjective rights and fundamental ordinary.
2.The legal duty: characterization and basis
The imposition of duties on the subjects that he addresses one of the immediate effects of the law. However, not always easy to determine how or to what is properly the duty.

2.1El legal duty as a duty of conscience
In antiquity, the duty to enforce the law was understood as a duty
simply religious duty conscientiously. Later in the process of secularization
Ethics, continued understanding that the duty which men had before the law
was a natural duty of conscience. And with the Christian development of Stoic doctrine, the
widespread belief that the obligation of subjects to meet the
Natural law and positive law was a human inward or obligation
consciousness.

This same view was taken by most authors rationalist natural law which affected the content or nature of duty. With regard to the merits of that duty, they replaced the imposition of an external authority for personal acceptance of the subject.
But finally, with the contrast between morality and law and Tomasio
Kant later, pushed through the doctrine of moral neutrality of legal duty.
According to Tomasi, while the rules of honesty (= moral) force in the jurisdiction
Internally, the rules of justice (= RHS) impose duties only external and coercive.
According to Kant, moral duty is a duty that can only be based internally on the
existence of an autonomous rational law universalized, but the legal duties are
external, arising from a heteronomous law and are made irrespective of the
motive that drives the agent.
According to Laun (Ppios of this century), so that the RHS is true standard of conduct and imposed real duties to their subjects, they need q conscience accept their rules, making them genuine autonomous rules
2.2El legal duty as a simple submission to the coercion
At the present time, some authors defend the thesis that the RHS does not impose obligations as such, but merely to place the subjects at several possibilities of harm in cases that do not perform the behaviors required. According to Kelsen, the legal duty is radically independent of the reasons why the individual work that is submitted to RHS. Moral duty and legal duty net and reality are two completely different, since the former is autonomous and the second is heteronomous. The moral duty, being based on a self-rule implies that the subject must know the content of the rule, agrees with him and accepts him: therefore, bound to his will. Instead, the legal duty, to emerge from a heteronomous law, regardless of whether there is obligated to know or accept the rules as they are worth and if the recipient is not obliged to accept them.
2.3 The legal duty as specific ethical duty
There seems to be no real reason to deny requiring that one of the first and fundamental features of legal duty is his membership in the general field of duty
ethics, ie the world of duties arising from the ethical standards (whose basic feature is the imposition of duties in its own right). But acceptance of this starting point has important methodological consequences. First, the radical
departure from the legal duty of the field of natural needs and the circle of purely technical requirements. And his approach to the manor of moral duty.
There is a legal duty inevitable psychological implications of the will of the obligated.
Now the law is not only a set of ethical standards which, because it is addressed to recipients in that they are rational beings and freeIt is also a general social norms committed to the protection of collective life and the realization of common interests. And that means we must achieve a minimum level of general compliance with the rules, even if it means having to ignore the will of each of the recipients or recourse, if need be, to the imposition by force. It follows that the legal duty is an objective one. The obligated by a legal duty is not a human individual whose identity is defined by its own personality psychological if not a legal entity, ie a social subject stereotyped and consumables (the father, the witness, the buyer, lessee. ..)
Ignorance of law no excuse. It therefore appears that, if you continue to give the existence of legal duty in the sense that it is used, understood and lived
by most citizens, must be given a minimum core meaning is largely coincides with that of moral duty.
2.4 The basis of duty
The base issue of legal duties has been far less studied. However, it seems reasonable to further analysis to try to overcome the traditional subordination of his theoretical approach. And in this line can be said that the need for conservation law and the proper functioning of society acts as the foundation for its binding, in that this need requires in its rules mandatoscontenidos constitute a real ethical duty to recipients of such standards.
The role of legal norms regulating the social life of men claimed that their guidelines on conduct are ethically mandatory.
Effective or binding force that has the legal duty is rooted in the ethical conscience of man as a citizen.
There are 2 groups of legal duties: basic and ordinary. The first are the legal duties of humanity, that every citizen has for the simple fact of being human to all other humans. The latter are duties whose existence and scope are related to the regulation of those respective jurisdictions. It has its immediate roots and his agent configurator definitive legal rules that dictate.
ITEM 14: SITUATION?, ACT, Relationship? And institutions?

1. The legal position
The legal position is one of the basic constraints of the legal existence of the subjects. Arguably, the legal positions are the positions occupied by each of the persons involved in various legal relations. Such relationships are usually established between two subjects, so that one has the duty to behave in a certain way and the other has the power to require the former to perform the behavior due. And this fact makes the legal positions traditionally come to be grouped into 2 types: those that impose duties (passive) and conferring powers (active). 2 clarifications: 1) Typically, each legal situation is the subject behaves correlative rights and duties simultaneously. 2) The legal right to be always characterized as a reality distinct from the legal situation.
It has been suggested a contrast between the legal positions that have a character
generic and fundamental and that, presenting a more specific scope, appear as derivative or secondary. The first gralm coincide with those in which the subject is located, regardless of their will. The latter arise from the subject’s own initiative.
2. Legal acts
Born in the dynamic field of doctrinal development of lawyers, a category or concept encompassing all events (single events or human behavior) who had some legal significance of relief: the legal facts. But the doctrinal development has also incorporated a delimitation of what they were and meant in the RHS mere natural events (? Legal rights? And meant what they were and human behavior (? Legal cough?
2.1 The legal facts
The legal fact is, something like the last element of the legal life
ie, the simplest element that can be decomposed matter that regulates the RHS. It’s all done, event or conduct that has legal significance (or legal effect), so that generates, transforms, or ends a relationship or status (in the broadest sense of the concept). In its narrow sense or more like the? Rights? Legal, as opposed to? Cough? Legal or natural events are phenomena whose presence in the fabric of the legal relationship does not stem from a voluntary decision of the persons involved in it. As? Rights? Are mere happenings,
simple happenings that? yield? ? urren? But they become legal as far as they are embedded in a schema or structure of legal norms, when they are not, strictly facts remain natural.
There is one feature that can not miss ever in any legal fact, lest it become? To? FOR TRADE: the absence of intervention of the free and voluntary decision of a subject. The simple acts of man (unconscious, mechanical, regardless of their willingness ,…) should be classified as mere legal facts.
2.2Los proper legal acts
Are characterized by their existence comes from the human decision. They are, therefore, actions or behaviors taken by individuals so that signal the onset of certain effects on the flow of legal relations. It has been demanding that legal acts the same elements that the psychological and ethical doctrine have called for the existence of a human act itself.
a) Items or essential requirements of legal acts
It is imperative that the subject matter to act within the minimum limits of conscience and free choice of will. If any of these two elements, there is no legal act, since there is no human act.
The subject’s behavior or action has been or may become due to the emergence of a particular legal consequence (to do or not do something) and is a requirement that the conduct or act of the subject are reflected in externally perceptible. The mere intention to not become manifest externally at any time shall not be considered a legal act.
b) Types of legal acts
1.A most common classifications is that which distinguishes between acts
invalid, void, voidable and nonexistent. The former are the normal legal acts, ie those that meet predetermined requirements in the rules governing them (at least the essential) and have the legal effect of those rules also provided. The acts are null q suffer from a radical and absolute lack of validity for violating any of the essential requirements set by the system. Q q I mean, really, there have been at any time as true legal acts. Those who are avoidable, without being radically zero, are valid vitiated by a breach of any requirement is not essential, so that, if not promptly remedied the defect that affects them can be considered and declared void, they are only legal acts in appearance. They are missing those who have not ever produced such acts as legal.
2.Distinción between lawful and unlawful legal acts. Qualifications:
1) A losefectos to determine the legality or illegality of an act, the degree of overlap with the
objectives pursued by the data subject proves to be a legally irrelevant, since
that the lawfulness or unlawfulness of conduct is to be determined in any case through
contrast with their respective regulators.
2) Both are equally legal because they are enrolled in the field of legal regulation and part of it, though in opposite ways. The legal lawful acts always occupy the most extensive and meaningful legal systems.
3.Subclasificación legal acts lawful legal acts simple (or? Cough strictly legal? And legal business (? Declarations of will? The legal effectiveness of the first depends exclusively on the provisions contained in the standards but may influence it claims or personal desires of the subject. In business juridic is precisely the stated willingness of the subjects that shape and is ultimately the respective legal implications. Unilateral legal transactions involving only a declaration of intent. The bilateral relationship born of the encounter or two or more minds externalized. The solemn or formal feature subordinate its existence to the fulfillment of certain formal requirements (eg notarized deed) and informal born devoid of all formality. The mortis causa effects only after the death of the man who declares his intention. The onerous include a counterpart or cargo (eg sales) and excluding free cq type of consideration (eg donation). In the grounds is the identification of practical purposes (case) under which the business is concluded, whereas in the abstract that case or secondary purpose is entirely practical, prevailing reference to the title (if the bill of exchange).
3. The legal relationship
Concept drawn substantially on the theory decimonínica (Savigni).
3.1 Characterization and concept
In a first approximation, one can say that the legal relationship is nothing but the very social relationship whose development has been appropriately regulated by the RHS. Savigni known nineteenth-century author as defined legal relationship? Tion from person to person, determined by a legal rule, which assigns each individual a domain where its will regardless of any desire queen strange? Explained that,? Da relationship law consists of 2 elements: first, the relationship itself, a material element of the relationship of law as a mere second, the idea of law governing that relationship, the plastic element, which ennobles the fact and imposes the form of law.

There are two conditions necessary for there to be a legal relationship: first, an intersubjective relationship, a relationship between two or more people, and second, legal regulation of this
link, so that it gives rise to certain legal effects or consequences.
The law covers only those relationships that have relevance to society buenfuncionamiento.
For Professor Macambra Legaz, the legal relationship is? RHS link between subjects, born of a certain event q has been defined by legal standards as a condition of existence of a correlative legal positions including powers and duties are aimed at certain benefits guaranteed by the application of a coercive consequence? br> 3.2 Structural elements
Are the subjects, the object, the corresponding link, the fact and the standard condition. The first 3 elements form the core of the structure (internal and primary) and the other two determine the relationship from outside (external).
Subject: The legal subjects that form the bridge is the relationship. They are the protagonists of the relationship and have the dual active-passive dimension of being both dchos holders and corresponding duties.
Re: Reason or motive that drives the subject to establish or maintain the reciprocal relationship that binds them. It has been designated as? Ntena? And the relationship or how? Jeto? It has been frequently pointed out that any external reality that acts as a coincidence of interests of the people who constitute the relationship may become subject to the legal relationship. However, it is also specified, which can only be? Jeto? And a legal relationship of human behavior
social. Link: The central element of a legal relationship. It unites the individuals and places them in situations or legal positions correlative. Typically, these relationships are with double bonds of reciprocity or double meaning, namely that dchos and impose duties assigned simultaneously to all subjects of the relationship.
Legal fact: The presence of a legal relationship always reveals a legal fact that acts as a conditioning factor or trigger of their existence, so that, without that fact, the relationship would not exist. It can be a simple fact of nature or a human act voluntarily.
The rule: most crucial element, because it is the creative agent of elation lar
Legal legal while, for the simple relationships, if not
standardize, do not become legal. To that extent, could be classified as baso
or budget of the relationship, but no structural element, since, being pre own legal relationship as such can not be part of the ontological structure
thereof.
3.3 Classes
A typical classification is the distinction between legal relations of public law and private law, ambiguous and difficult distinction agreement between criteria used as the basis.
Most authors support the distinction in the character of the persons involved in relationships. Dcho public relations will be those involved in a subject that holds power or authority and the rest private. But there are multiple legal relationships, although an individual involved in them vested with power or authority, are clearly private. This option lacks sufficient justification.
It therefore seems more reasonable to assert that distinguishes the character of the legal positions that correspond to the various persons who come into contact by reason of the employment setting. Public dcho shall those in which at least one subject, being the holder of power or public authority, occupies a position characterized by the direction and control function, so that the relationship itself is affected by the imbalance of the respective positions. Private dcho will be those in which the subjects involved from positions in a relational footing.

It has also been suggested that one can distinguish immediate response to the prevalence of good, social or individual, that determines them. RHS would be public legal relations are those in which public goods game and those in private dcho who are not involved any good or public interest. But it is not always easy to decide where it ends public and private begins. Therefore, it is preferable to use as a criterion differentiating the nature of the position of subjects for a relationship.

A second important classification is that which distinguishes between personal legal relationships, real and obligation, knowing that the first lie directly on the legal status of the subjects, the latter exist because of
objective physical realities and the third have the mutual benefits Ser content of the subjects.
4. The legal institution
The configuration of this concept has to face 2 different doctrinal traditions: one that stems from the Roman jurists, and Justinian [1] and introduced by contemporary institutionalism [2].
[1] The concept of institution is linked to the practice of lawyers who taught legal education. Justinian decided that the institutions were the beginning and foundation of a progressive training to supplement the study of the Digest (or systematic selection of jurisprudential texts) and, finally, in the Code (or collection of laws before him). Finally, no doubt influenced by conceptions as arbiters of the law has been generalized characterization of legal institutions as juridical entities or stable nuclei that are bounded by the set of rules governing how they are to be made the
respective relationships.
[2] The tradition was initiated by the French institutionalist M. Hauriou. An institution is,
institutionalist doctrine to a complex social reality or entity which is endowed with
internal organization, so that the activity of all members is performed according to
order required by the guiding idea that the umbrella. Thus, the legal institution is the
amalgamation of several individuals around an idea or project that motivates and unites.
And it implies also the presence of a convergence of the targeted consents
guiding idea and a system of balance of forces and internal tendencies.
A feature of the institution is imp that puts individuals at marginalizing their own individual selfishness and act in subordination to the power that requires all institutional organization in order to achieve the common objective that represents the idea around which are grouped.
It was also characteristic of this doctrine, especially in the version of M. Hauriou, distinguish, within the genus institution 2 basic types: the institution-person, which is foundational element in the participation of all members of the guiding idea and institution-thing, which is characterized by seeking inspiration from the goals that allow for common interests.
Both cases agree that the individuals clustered around the key idea come to occupy a legal position other than the individual who had before acquiring the quality of members of the institution.
ITEM 16: WRONGFULNESS, LIABILITY AND Sanctions?

1. Introduction
It will be imperative that violates the rule of law “illegality” to be able to impose the sanction. And for that, there must be a party responsible for such failure. These concepts are linked closely to the discipline of criminal law.
2.Antijuridicidad and legal wrongfulness
General 2.1 Concept
The legal offense always presupposes the existence of rules, since it involves the violation of a rule .. This situation can occur in any area of law.
2.2 classical positivist conception of wrongfulness
The natural law view that the lawfulness of conduct is a dependent variable of the concept of good and, therefore, the illegality is determined as an evil. Right then operate as a repressive instrument of the crime, considered a bad, attributing a penalty involving a punishment for the guilty subject. Positivist theory of the action unlawful and, in particular the position of
Kelsen rejects the illicit describe as? Ntrario? To law? Olatorio? The
Right? Sion? The representation of something outside the RHS and the opposite, something that
threat, which violates or deleted existence. This representation is
wrong. The illicit says, is a condition of the RHS. In no case may be
described as wrongful, for it is he who allows the RHS function as (by acting as an agent applicator of penalties).
3.Responsabilidad
3.1 Introduction
The word? Sponsibility? will answer comes from the Latin, meaning spondere contrary motion, which implies the idea of ritual, solemnity and with it the formation of a certain balance, a certain order. Respond presupposes the rupture of this balance, such an order. Thus, a first sense of responsibility from him culturally, would become a ritual to restore the lost equilibrium, is a? In? Ontrapuesto to poor
In that sense, the responsibility is seen as a well to restore the balance disturbed by the offense.
In community life, there are different levels, including legal, political, sacred, and so on. There is, therefore, a legal order, political order … And it’s possible any? Ptura? ? ensa? and one or the other. In that sense, it would appeal not only to legal liability, but also to political and ideological.
Nino collects four senses of responsibility:
“Responsibility and obligations or duties arising from a certain position,
relationship, paper, etc..
-Responsibility in the sense of causal factor, indicating that some action is ofenómeno because of some event.
And capacity-responsibility as a state of mind.
“Responsibility as punishable and morally reprehensible, in the sense that elagente is the creator of punishment or moral blame. You latter collects the most legal sense? Sponsibility?
3.2 Definition and types of legal liability
The concept of responsibility implies a basic budget: the freedom of action in any case available to the obligated by the rule.
Kelsen believes that an individual is responsible when it is capable of being
punished, whether they have committed an act. Kelsen classified legal liability:
-Direct and indirect responsibility. An individual is directly responsible when they commit a delict and imposing a penalty. Instead, it is vicariously liable when is likely to be punished for the conduct of a third.
-Disclaimer subjective and objective. The first is that in which it is required, for application of the sanction, that the subject has wanted or expected the result of its unlawful conduct. The objective, or effect, occurs when an individual is liable to be punished regardless of whether wanted or expected the delict.
All cases of vicarious liability are also objective.
4.La legal sanction
4.1 Two meanings of sanction
In a technical sense, own constitutional law, punishment is called the act with which the King perfects the law, agreeing with the contents of the text and their willingness to integrate the legal system. Enact a law meant to recognize valid in terms of RHS, which produces legal effects. Through this function, the king participates in the exercise of the legislative function.
On a more general and diffuse (the one that interests us) is the penalty means the fact? Stigar? ? the infliction who has not conformed to the rule? Punishment would be all those mechanisms that the system incorporates into its structure to avoid the possibility of a breach of legal rules. The penalty would come to correct a? Imbalances in? occurred in the legal system for violations of its rules.
4.2 Definition and characterization of legal sanction
The purpose of law is to be effective because its ultimate function is to organize a group living together peacefully. You’ll need to arbitrate mecanismosnecesarios to secure and ensure compliance and this is carried out by means of sanctions.
The penalty is not a primary effect of legal rules. ³ tas are characterized by the imposition of duties and the corresponding allocation of rights. Only in the event of failure of this structure, the penalty shall be imposed. The sanctions exert a function tb retributive and exemplary. The legal sanctions are distinguished from all others by its peculiar severity and degree of formality: they are socially organized, have recourse to the use of force and have specific bodies of taxation. What characterizes the penalties juridic is having reached the maximum level of institutionalization. This is for the mandate that emanates from the value of legal certainty present in all rule of law, which is essential for the system to make public all that concerns the imposition of sanctions. For Ruiz de la Cuesta, in that advertising should be clear: a) What is it that is punished, b) How is punished, c) Who punishes, d) In what ways are punished, e) Where is punished.
We must differentiate between the element of coercive and legal sanction. The 1st is the possibility of application of physical force from social organization, but can not be identified either as there are many legal action coercive in nature that have no punitive nature.
In conclusion, we could define the legal sanction as a legal action either set to strengthen respect for its rules and, where appropriate, remedy the effects of noncompliance.
4.3 Types of legal sanctions
Many criteria. Based on the different branches of the RHS: criminal, civil, administrative, international, etc.. But not satisfactory.
One of the most important distinctions is that of N. Bobbio between negative and positive. For him, the penalty is pleasant or unpleasant consequence that the law itself attaches to the observance or breach of its rules. Within the concept of punishment included not only presenting the negative consequences for breach of the required standard, but also measures that aim to promote certain behavior in society.
Negative sanctions: Are those measures that tend to counteract the
breach of a legal rule. They may be retributive and restorative. Among the
highlights retributive criminal (felonies or misdemeanors), leading to deprivation
freedoms, rights or property of persons and administrative (fines).
Repairs are features of private law, as based on the MEASUREMENT PRINCIPLE satisfaction and compensation for damage caused because the State requires the defaulting party to do or where appropriate agreed compensation.
Positive sanctions: Are those measures tending through direct action to promote the implementation or enforcement of a rule. In turn, they may be retributive and restorative. The first consists of the establishment of prizes, awards, medals, honors, etc.. The second in compensation of various kinds of work, effort, expenses, etc, as the tax benefits to firms of hiring workers under certain circumstances.
4.4 The penalty normative theory
For Hans Kelsen, only genuine legal rules which prescribe a penalty (negative), including only those penalties and the enforcement of property. But he admitted the existence of rules whose consequence rules out an award and not a punishment (pure theory of RHS, 1960).
The penalty is considered by him a primitive concept in the sense that what used to define the other basic legal concepts and has 4 properties: a) is a coercive act, ie an act of actual or latent force, potentially coercive to the breach of the rule of law, b) is intended deprivation of property, c) who
exercise is authorized by a valid norm prepared by a competent authority, and d) must be the consequence of a behavior of an individual.
This view was criticized by Hart, indicating that this thesis does not adequately explain other rules, including legal, not sanctions.
We conclude that the sanction can not be used as a primitive concept from which to define what is the law, as does Kelsen. We understand that the penalty is an effect
secondary, secondary and unwanted law.

ITEM 16: THE PROCESS OF CREATION? And applications? LAW

1. Concept and types of law enforcement
Usually, when discussing the application of RHS or application of rules, referred to the performance of individual legal acts in conformity with legal standards grales. So they say that law enforcement is only the realization of the general legal requirements, since it is necessary to fit the particular facts (situations or behaviors) within the framework of abstract and general legal precepts .
Any legal rule contains a program or plan of conduct for social subjects to quienesva intended. Therefore, when the behavior of these subjects is consistent with plan
established in the standard, is occurring is when the real implementation of this standard. Such application can be done in different circumstances: [1] when the subject directly bound place voluntarily conduct stipulated in the standard, [2] when that subject, having initially failed the standard, adapting their behavior to the penalty imposed by the competent authority and [3] when cq bodies competent to dictate that any provision or legal decision of development (= application) of a higher law or regulation.
He accepted the conclusion that implementing the RH is performed at least through 2 main ways: the performance being carried out by individuals and the execution (aplicac. propiam. That) by the courts . The distinguishing feature of the implementation or application appears to be in the making and realization of the RHS conducting any body or authority other than the subject that is directly and primarily for the standard. But it sometimes happens that the law can not achieve its own performance without the intervention of the state law because the defendant fails to immediately know, can not or will not comply with it. In such cases where enforcement takes place (or application of RHS in the strict sense), since the authorities and bodies which plan on the specific cases of real life the rule of conduct provisions contained in the General Terms, reaching forced to impose (by force, if necessary) The conduct in question as required. However, as the character of the state legal bodies which places them at two possibilities for action, has to speak of 2 types of enforcement or implementation of the RHS: the judicial application and non-judicial application. The non-judicial acts is when the realization or execution of the character dral regulated by existing laws are made by authorities or bodies admintivos, ie by bodies acting on behalf of the Executive or Public Administration. There is a judicial application of the RHS when the realization of legal norms & C is performed by judges, which are agencies or spokespersons acting directly on behalf of the RHS itself, in
As this is a function of the social community itself and not just the organization
state. It is this latter case the application that has captured the
primacy and representativeness of the modality of implementation or realization of the RHS.
2.The debate on the relationship between the application and the creation of the RHS
2.1 Introduction
The right is characterized primarily on the cultural and historical reality, ie something that man creates in the process of their own social self-realization, to help resolve some of the needs or problems that raises the collective life . The various legal standards that integrate a det. Historical Dcho have its own life cycle: birth or appearance, the making and effective action on the
system of social relations and the disappearance or permanent loss of its virtuality
make norms. The realization of the RHS has been designating as? Licación the RHS? it is often included gral problems of interpretation, on the grounds that the action to capture the normative meaning and scope of legal rules is essential for the RHS may update this policy effective immediately that is what legitimizes suexistencia.
2.2 The classical theory of law enforcement
According to the traditional view of legal and political liberalism, development and implementation of RHS are phases or functions of legal life, are not only different, they are sharply separated. There is, first, a legislative activity that focuses on the production of standards to provide for the resolution of problems or conflict situations the application of social and jurisprudential there is an activity that is limited to the effective implementation of these rules problems or actual conflict situations. And, while the 1st boot of social problems to arrive at the formulation of legal norms, the 2nd part of existing law to reach the fair regulation of the specific problems of social life. Thanks to criticism and innovative thesis of certain currents of doctrine, it was not only a profound relativization of the separation of creative activity and
Applying the RHS, but also the recognition that the activity of judges and administrative bodies is often a direct intervention in the overall process of creation of legal norms.
2.3 The theory of the determination
Thus arises a new school of thought that conceives of the legal order as a structure of levels or steps linked together by a nexus of progressive shunt (initiated by A. Merkle and systematized by H. Kelsen). According to this theory, the various elements of a legal system is a dynamic unit, in that they are united by a relation of production or derivation is that relationship that allows all current rules refer to a single site basis: the fundamental rule . The transition from one policy to another step, whatever the level of the order in which it occurs, is always an activity that are simultaneously present the appearance of the application of a previous rule and the aspect of production or creation of a new rule. Thus, there is no separation between the creation and implementation of the law.
2.4 Theories of the will
The most plausible view is located halfway between the vision of the nineteenth century itself divisive and reductionist conception advocated by Merkle and Kelso. Among the creative activity and the applicability of the RHS, there is no absolute separation or even a complete unification, but rather a certain continuity qualified by the presence of qualitative differences lie in the different social function and in the diverse field of legal reality in which they operate. There are some bodies which are entrusted with the highest priority mission
create new legal norms (the legislative body in a broad sense). And there are other bodies
which have been allocated in priority to assess the role behaviors of different legal subjects with the measure of the RHS and
set (courts). The uncontrolled mixture of both functions would entail the risk of returning to historical stages obsolete).
3. The controversial elements: facts and rules
3.1Los facts
The legal fact is, something like the last element of the legal life, ie the simplest element that can be decomposed matter that regulates the RHS. It’s all done, event or conduct that has legal significance (or legal effect), so that generates, transforms, or ends a relationship or status (in the broadest sense of the concept). In its narrow sense or more like the? Rights? Legal, as opposed to? Cough? Legal or natural events are phenomena whose presence in the fabric of the legal relationship does not stem from a voluntary decision involved in lossujetos she. As? Rights? Are mere happenings, simple happenings that? Yield? ? urren? But they become legal as far as they are embedded in a schema or structure of legal norms, when they are not, strictly facts remain natural.
There is one feature that can not miss ever in any legal fact, lest it become? To? FOR TRADE: the absence of intervention of the free and voluntary decision of a subject. The simple acts of man (unconscious, mechanical, regardless of their willingness ,…) should be classified as mere legal facts.
The legal relationship is nothing but the very social relationship whose development has been appropriately regulated by the RHS. Savigni defined it as? Tion of
person to person, determined by a legal rule, which assigns each individual a domain where its will regardless of any desire queen strange? explained that,? da dcho relationship consists of 2 elements: 1 the relationship itself, a material element of the relationship, as a simple fact, 2 º, dcho the idea of regulating that relationship, the plastic element, which ennobles the fact and imposes the shape of the RH.
There are two conditions necessary for there to be a legal relationship: 1, a relaciónintersubjetiva, a link between two or more persons, 2 º, legal regulation of this link, so that it gives rise to certain legal effects or consequences. The law only deals
those relationships that are relevant to the functioning of society. For Professor Macambra Legaz, the legal relationship is? RHS link between subjects, born of a certain event q has been defined by legal standards as a condition of existence of a correlative legal positions including powers and duties are aimed at certain benefits guaranteed by the application of a coercive consequence? br> Done Legal: The presence of a legal relationship always reveals a legal fact that acts as a conditioning factor or trigger of their existence, so that, without that fact, the relationship would not exist. It can be a simple fact of nature or a human act voluntarily.
3.2 The rules
The rule: most crucial element, because it is the creative agent of the legal relationship as a legal entity, for the simple relationships, if they are not standards, to not become law. To that extent, could be classified as baso or budget of the relationship, but no structural element, since, being pre own legal relationship as such can not be part of the ontological structure of it.
The legal rule, but is characterized primarily by their imperative nature (certain line of action that must be followed), not a bare imperative, it is a mandate from the representative of the community will, which presupposes an evaluative trial (assessment ethics of reason) and that strict rules of conduct in general and stable. Therefore, legal rules create a general duty and goal of compliance, a duty backed by the group’s social power.
ITEM 17: THE NEED OF INTERPRETATION? RULES

1Concepto and object of legal interpretation
To interpret is to unravel the meaning or significance that there is a way not immediately apparent in a real fact of life that is or transmit or decrypt a message that is not self-evident.
The interpretative activity occupies a central place in all areas of life in queinterviene human knowledge. The legal interpretation is an activity that has constantly dedesarrollar all persons involved in the long process of
fulfillment of Law.
No interpretation, no law can be really effective and operational, that is, no law can become law in the fullest sense, as the constitutive function of law is precisely to be true and act as effective regulation of social relations.
Interpretation is also a creative activity as the meaning of his own being is to awaken the meaningful existence of that to which it serves as an intermediary or messenger.
The multiplicity of data and viewpoints that must be taken into account by the interpreter must be acknowledged that the legal interpretation has provided a high degree of difficulty.
2 Relevance and scope of the interpretative activity
3.Type of legal interpretation

Theories of legal interpretation are not only numerous, but often adopt the views or purposes marked by different political views.
3.1 According to its effectiveness
3.1.1 Private Interpretation
It is conducted by the same recipients of legal regulation, which are brought online to the factual circumstances or facts that are embedded with the legal rules governing them.
Moments where you may receive the application:
1) The subject performs a voluntary basis the behavior stipulated in the standard, it is the “fulfillment” as the fulfillment of the law by itself bound (either private or public).
2nd) After the subject failed the standard adaptation of the appropriate penalties imposed by the competent body, it is the “execution” or “application” as a concrete realization of the law or by the competent body (different subject).
3rd) The organs that have jurisdiction to issue legal provisions of the development (implementation) of a higher law or regulation.
3.1.2 Public Performance
Basic manifestation of the application by “execution” of the organ competent jurisprudential. When the subject must not know, will not or can not comply with the rule, the exercise of law enforcement authorities or bodies. The importance of judicial activity:
In ancient times there was an excessive role of judges (the judge – “Iudex” was the saying the law – ius dicere “- which defined the right -” jus “-), but with the appearance of” State
modern “turned to an excessive prevalence of law over all other forms of manifesting the law (the law as the highest expression of legal rationality leaving the judiciary as a mere process of realization). In the late eighteenth century, and in nineteenth and twentieth centuries, the view prevailed that the activity of judges should be obeying the law, merely to enforce these laws, we are facing:
-a mechanical automaton of the judiciary,
-the sentence is a syllogism or interpretive statement is based strictly prescribed by law.
Today it is recognized that the judiciary is vital, innovative and creative. The administration of justice (such as law enforcement) is rooted in the personality of the judges, who will dictate specific sentences or just in the spirit of legal and cultural tradition that surrounds them.
3.2 Depending on their impact on the systematic arrangement
3.2.1 Harmonized Interpretation
A legal norm should be interpreted not in itself, but in harmony with legal elordenamiento, which means saving their own ambiguities described that may lead drafting (for
inaccuracies of the legislature, for example.)
3.2.2 Interpretation inclusive
For the application of a rule of law is necessary to interpret it, this is
an action values referred to the historic nature or circumstances of the
rule applies, according to criteria of justice and adaptation to the end that is
pursued. This is to integrate the standard in the real situation where it must be applied.
4.The conventional theories about the interpretation of rules
If we consider the aspect that primarily serves the interpretive activity can be distinguished the following theories:

4.1 The subjective theory
Considers that the true or real dela rule is one that inspired the author of the law. Accordingly. They argue that the goal of interpretation is the discovery of meaning or sense that the law gave históricopsicológica the will of the legislature.
4.2 The objective theory
Considers that the fate of legal interpretation is the ascertainment of meaning inherent in their own regulatory laws, as laws, once enacted by the legislature, was detached from his creative will and gain an independent existence and operation of the legislative process .
ITEM 18: THE DEBATE ON M? LL OF INTERPRETATION?

1 Main methods of interpretation
By the rules of interpretation, it is understood the legal principles that have survived as the master formulas legal sense of the judges. The rules of interpretation coincide with the interpretive methods.
1.1 Methods literal
The intérprete must comply with the immediate meaning of the words in which the rules are expressed. MEASUREMENT PRINCIPLE applies the literal interpretation. Part of an attitude of total and absolute respect and obedience to the letter of the law, an attitude that seems to contain a certain magical feeling, or at least, a deeply authoritarian mentality. He seems to forget that what matters most in the RHS is the spirit behind the laws, that spirit has to be found, not only through the letter of these laws, but beyond it. It represents a primitive stage of the RHS, and she’s not asking a real method of interpretation.
1.2 Method systematic
Through the systematic connections between legal rules are obtained
each case brought findings. It assumes that among the different
rules or legal propositions, there is a kind of systematic structure
logical or conceptual connections. And encourages the implementation of a logical method
deductive making it possible to obtain, through the analysis of these connections
systematic conclusions raised appropriate to each case. Sustained and systematic approach by the Court of concepts. But no response from the mode of being or the specific function of the RHS, whose fate lies in finding a solution to problems just are not pure abstractions but vital needs of specific
social relations.
1.3 Historical method (or subjective)
The interpreter must be placed somewhat in the position of the legisla-tive assuming original ideas and trying to find their particular purposes that had before and what was the spirit that presided over the drafting of the law.
With the irresistible tenacity of historical facts, time has taken care of reliably demonstrate how the identification of normative sense of a law with provisions of their will is a legal fiction created unsustainable.
1.4 Methods teleological
The basic objective is achieved only through knowledge of the purpose or goals of their own precepts, since such ends, not only are the factor that has led to the formulation of laws, but are tb reference that explains and they makes sense. For the identification of these purposes can not be taken into account only the project or will of its author, but the functionality that standards play in social life within the framework gral current legal system in which they integrate.
1.5 Methods evaluative
You can only find the genuine meaning or significance of the rules when taking into account the particular system of values upon which these rules are based. MEASUREMENT PRINCIPLE The application of this has led to two important doctrinal statements: the qu EPONE emphasis on consideration of the values embodied in the standards themselves and the commitment that the weighting of the values that inform the relevant social system.
35. The principle of complementarity of the approaches
The specific function and the weight held by each one of several criteria
depend critically on the interpretive character or nature of the rules
legal will be interpreted, since we can not forget that, whichever is
domestic sector it is interpreted, some other criteria predominate
and is of a type or another interpretation is carried out. So, please note
note that the application of one or another interpretive approach to each of the plots
the legal system is not an issue completely irrelevant, since no
all modes of interpretation are equally suitable for all cases.
3The interpretation according to the constitution
Top particularly prominent in our day by K. Hesse and F. Mueller says that it has to be precisely the Constitution, through its principles and values
fundamental, which is called upon to act as a basic parameter for the interpretation of any law.
3.1 The interpretation of the constitution
3.2 The interpretation in the constitution

4. The crisis of the certainty of the law: the shift to
? zonabilidad? r> ITEM 19 DETERMINAT I? JUST THE RIGHT. THE ROLE OF VALUES
JUR? ICOS
1. The problem of the ethical justification of laws
The man in all societies and cultures has always felt the anxiety and the need to question whether existing laws within its space-time should be limited to a mere product of the will of the legislature or by the holders of
power, or rather should be subject to some criteria than the human will. The RHS is positive and changing as society becomes more complex, the rules need to adapt to a greater extent to the new circumstances. The human being has worried about finding ethical values that serve to justify and substantiate the law and constitute a limitation on the legislature’s intent.
1.1Breve historical reference
We differences in several stages: classical Greece, the Hellenic-Roman world, scholasticism, rationalism and nineteenth and twentieth centuries.
In classical times the pre-Socratics appear anonymously. They did the idea metaempírico legal test, which is above and susmandatos men. Once the classical period, philosophers continue with this thought, arguing that human RHS has its origin and foundation in a higher court to companies belonging to the man (Socrates: the RHS must be founded on a divine order, Plato advocates the existence of an ideal which should dcho
be reflec-tion on human RHS, Aristotle distinguishes between natural right and legal right).
In the world acquire Hellenic-Roman Stoic current predominance
develops the theory of a natural Dcho founded on reason which governs the universe. Emphasizes the
idea of human dignity, providing a universal community of all men
that are free and equal, this should be the guiding ordenam of human laws. In the
patristic and scholastic (St. Thomas) the logos becomes eternal law of reason or
will of God, who commands the natural order and forbids disturbance (St. Augustine)
Rationalism does not rest in God’s law, it explains how a human construction derived from his rational nature. Within the concept of human nature, is given a role to elements such as selfishness and self-preservation, social or helplessness. In the nineteenth century triumph of positivism which considers that the RHS can only
based on empirical methods. No one can speak of the existence of a positive than RHS, RHS only one promulgated by the State. At the end of the twentieth century and in the returns the idea of a natural RHS.
1.2 Characteristics of the criteria of justification
The essential features are discovered in the ethical assessment of the political laws are: idealism and rationality. The ideality pq if we are to serve as a foundational element of the law must be above the historical systems and be a model of the same. The rationale for the very existence of the RHS involves an rational choice between different options. The legal rules always impose a role model among many.
This choice implies a reasonable action, founded on reasons for the decision
Leads to the assertion of the existence of ideals and rational criteria that can be used as units of measure of the degree of existing Justice positive legal norms.
2.The main solutions
Natural Law 2.1La solution
Under the term natural law benefiting all those who defend the current existence of a higher order objective that has 2 characters: it is permanent and universal.
The natural law states that their positions defend the existence of a dual legal system: there are two Dchos, the natural RHS (as ordenam ideal that should serve as a reference and basis of concrete historical RHS) and the positive RHS (ordenam existing and historical communities should be a transcript of the former. A common feature
all positions is the belief in natural law a normative order than positive: the natural.
Among the various philosophical concepts of nature include 2:
cosmological and metaphysical classic. The first identifies nature with all corporeal beings. It can distinguish 3 different directions:
a) Design organicist: nature or cosmos is a great organization that is
animated by an intrinsic principle (logos) that owe their regu-larity of
natural phenomena and is responsible for imposing a certain order in
world. This logos is the rational element that works from the inside of things
as a law that organizes the world and makes for a harmonious cosmos and
consistent. Conceptionist predominant in the Greek world.

b) mechanistic: the world is not like a great organism,
but a mechanism, something inert subjected to an external principle (divine law) that is
the reason that functions on a regular basis. Existing concept in the Age
Ages and the Renaissance.
c) Design historicist: comparison with previous who saw the cosmos as
immutable, this view considers it a reality subject to evolution. Both
living as inert are subject to evolution. Position taken by
Kant and the evolutionary movement (Darwin).
The metaphysical concept classical (Aristotle) thought by nature not a set of beings, but the mode of being of each body in particular. Sto Tomas nature distinguishes 2 aspects: static (essence of every being) and dynamic (the origin of its own operations).
Perez Luño encompasses the concepts of nature in 3: a) defined as
divine creation and the natural RHS as an expression of the will of God, b) as cosmos or laws that govern the physical world, human beings are subject to them through the instincts and needs, c) as a reason, a quality of being that allows human autonomously establish its rules of coexistence.
Iuspositivism 2.2La solution
Positivism: nineteenth-century intellectual current. It is characterized by a focus on empirical data: our knowledge is based on experience. It is time that succeed in the sciences of nature.
They defend a world based on a rigid physical causality. Refused metaphysics and everything connected with it. The real application of the method in the legal positivist focuses on historical research as a statement of facts.
It advocates an authentic approach monistic: there is only one law which is the
positive. Can be studied in 3 ways: a) epistemological level (means of knowledge as the RHS-field be-and should not be).
Among the highlights contemporary positivist Pure Theory of
H. Kelsen law. Responds to attempt to find the purity of the legal ethod.
Consider the RHS as an independent object of study, which belongs to the realm of
the normative.
Iuspositivism solution to the problem of justification of the laws, whatever position one takes, has the virtue of focusing on the human experience in the field of the
testable. Although legal to reduce the raw data of the
historic and positive, has been deemed insufficient.
3.The role assigned to the values

3.1 Concept and substantiation of the values
Values should be distinguished from the facts and rules. The facts are merosacontecimientos and judgments of fact are mere descriptions of these events (eg action X has done Y). The opinion of value is a reflection value of the event (the action and carried out by the subject X is good). Moreover, the
value judgments match the standards set forth in that both are not
intended to give information, but direct the action (the action and must be done by the
subjects). But the rule also establishes a particular form of conduct (the subject
X must perform the behavior and so Z).
In defining the values we can not ignore the problem of its foundation. There are 2 streams based:
a) The axiological objectivism: it sees as pure essences values, objective and absolute validity that are independent of the experience of reality. Material realities are real.

b) The axiological subjectivism: it reduces the field values of the wishes or interests of individuals. Something is valuable to the extent that individuals value it. Appears, tb, a sector that, compared with the two alternatives mentioned, advocated a third option: the axiological intersubjetivity which conceives of values as a reportable categories. It assumes the possibility of establishing the necessary conditions to reach an open and revisable consensus about the values to apply based on human needs.
3.2 The functionality of the values
By asserting that the RHS has been created to comply with certain values, we are referring to an element of the structure of any normative order: the purpose. We find that we are dealing with 2 concepts: aims and values. Determine values for the purpose. It appears the primary function of legal values as the foundation of the purposes of law and the obligation to comply. A second function would be: to serve as critical elements to assess any existing legal regulations.
This code of values that serves as a contrast of positive normativity
is the ideal law or law should be. Paradigm towards which it tends. There is a circular relationship between the two systems: the ideal system for real RHS needs to be picked up by the positive rules and positive law, to achieve the legitimacy required to incorporate these values in what ought to be law
4. The main current legal values
Values change and become quite frequently and these changes are broad and deep. And there is the problem of the historicity of legal values.
4.1 The historicity of the legal values
Time to determine what those values, we face new challenges such as: the historicity of the same (varying with time, space and the convictions of the social group) and their great diversity. Thus, it appears a contradiction profundaentre this variability and the idea of stability that must be incorporated as such securities. The legitimate values are mutable positive order of 3 depending vbles: a)
time, b) space, and c) the convictions of the social group.
Doctrinally have been identified as causes of the historicity:
a-diversity of social subjects and change them,
b-the varied and changing needs of each historical moment and the means for their satisfaction;
c-the modifications arising from practical experience;
d-priority social needs in each situation presents, and e-the multiplicity of the values themselves.
For still others, only two arguments used to justify the change
historical values: what varies is not the values but the knowledge that
Men are the same, and values exist only within the cultural framework within which they operate.
4.2 The diversity of legal values
4.2.1 basic legal value: Justice
Enabling Justice in society. A basic criterion that the right should actually lead to social relations. Resulting therefrom other values.

43.1 The subjective theory
Considers that the true or real dela rule is one that inspired the author of the law. Accordingly. They argue that the goal of interpretation is the discovery of meaning or sense that the law gave históricopsicológica the will of the legislature.
4.3.2 The objective theory
Considers that the fate of legal interpretation is the ascertainment of meaning inherent in their own regulatory laws, as laws, once enacted by the legislature, was detached from his creative will and gain an independent existence and operation of the legislative process .

ITEM 20 DETERMINAT I? JUST THE RIGHT. THE ROLE OF VALUES
JUR? ICOS
1. The problem of the ethical justification of laws
The man in all societies and cultures has always felt the anxiety and the need to question whether existing laws within its space-time should be limited to a mere product of the will of the legislature or by the holders of power, or rather should be subject to some criteria than the human will. The RHS is positive and changing as society becomes more complex, the rules need to adapt to a greater extent to the new circumstances. The human being has worried about finding ethical values that serve to justify and substantiate the law and constitute a limitation on the legislature’s intent.
1.1Breve historical reference
We differences in several stages: classical Greece, the Hellenic-Roman world, scholasticism, rationalism and nineteenth and twentieth centuries.
In theclassical times the pre-Socratics appear anonymously. They did the idea metaempírico legal test, which is higher than men and their mandates. Once the classical period, philosophers continue with this thought, arguing that human RHS has its origin and foundation in a higher court to companies belonging to the man (Socrates: the RHS must be founded on a divine order, Plato advocates a dcho laexistencia ideal which should
be reflec-tion on human RHS, Aristotle distinguishes between natural right and legal right).
In the world acquire Hellenic-Roman Stoic current dominance that makes the theory of a natural Dcho founded on reason which governs the universe. Emphasizes the idea of human dignity, providing a universal community of all men who are free and equal, this should be the guiding ordenam of human laws. In the
patristic and scholastic (St. Thomas) the logos becomes law ovoluntad eternal reason of God who rules the natural order and forbids disturbance (S.
Augustine)
Rationalism does not rest in God’s law, it explains how a human construction derived from his rational nature. Within the concept of human nature, is given a role to elements such as selfishness and self-preservation, social or helplessness.
In the nineteenth century triumph of positivism which considers that the RHS can only rely on empirical methods. No one can speak of the existence of a positive than RHS, RHS only one promulgated by the State. At the end of the twentieth century and in the returns the idea of a natural RHS.
1.2 Characteristics of the criteria of justification
The essential features are discovered in the ethical assessment of the political laws are: idealism and rationality. The ideality pq if we are to serve as a foundational element of the law must be above the historical systems and be a model of the same. The rationale for the very existence of the RHS involves an rational choice between different options. The legal rules always impose a role model among many. This choice implies a reasonable action, founded on reasons for the decision
Leads to the assertion of the existence of ideals and rational criteria that can be used as units of measure of the degree of existing Justice positive legal norms.
2.The main solutions
2.1 The natural law solution
Under the term natural law benefiting all those who defend the current existence of a higher order objective that has 2 characters: it is permanent and universal.
The natural law states that their positions defend the existence of a dual legal system: there are two Dchos, the natural RHS (as ordenam ideal that should serve as a reference and basis of concrete historical RHS) and the positive RHS (ordenam existing and historical communities should be a transcript of the former. A common feature of all positions is the belief in natural law a normative order than positive: the natural.
Among several outstanding philosophical nature 2: the cosmological and metaphysical classic. The first identifies nature with all corporeal beings. It can distinguish 3
different directions:
a) Design organicist: nature or cosmos is a big body that is animated by an intrinsic principle (logos) that its regu-larity are natural phenomena and is responsible for imposing a certain order in the world. This logos is the rational element which acts from within it like a law that organizes the world and makes for a harmonious and coherent cosmos. Conceptionist predominant in the Greek world. b) mechanistic: the world is not like a great body, but a mechanism, something inert subjected to an external principle (divine law) that is the reason that functions on a regular basis. Existing concept in the Middle Ages and the Renaissance.
c) Design historicist: comparison with previous who saw the cosmos as something immutable, this view considers it a reality subject to evolution. Both the living and the inert are subject to evolution. Position taken by Kant and the evolutionary movement (Darwin).
The metaphysical concept classical (Aristotle) thought by nature not a set of beings, but the mode of being of each body in particular. Sto Tomas distinguishes
Nature 2 aspects: static (essence of every being) and dynamic (the origin of their
own operations).
Perez Luño encompasses the concepts of nature in 3: a) defined as
divine creation and the natural RHS as an expression of the will of God, b) as cosmos or laws that govern the physical world, human beings are subject to them through the instincts and needs, c) as a reason, a quality of being that allows human autonomously establish its rules of coexistence.
2.2 The solution iuspositivism
Positivism: nineteenth-century intellectual current. It is characterized by a focus on empirical data: our knowledge is based on experience. It is time that succeed in the sciences of nature.
They defend a world based on a rigid physical causality. Refused metaphysics and everything connected with it. The real application of the method in the legal positivist focuses on historical research as a statement of facts.
It advocates an authentic approach monistic: there is only one law which is positive. Can be studied in 3 ways: a) epistemological level (means of knowledge as the RHS-field be-and should not be). Among the highlights contemporary positivist Pure Theory of Law by H. Kelsen. Responds to attempt to find the purity of the legal ethod.
Consider the RHS as an independent object of study, which belongs to the realm of
the normative.
Iuspositivism solution to the problem of justification of the laws, whatever position one takes, has the virtue of focusing on the human experience in the field of the testable. Although legal to reduce the raw data of the
historic and positive, has been deemed insufficient.
3. The role assigned to the values

3.1 Concept and substantiation of the values
Values should be distinguished from the facts and rules. The facts are mere events and judgments of fact are mere descriptions of these events
(ie X has performed the action Y). The opinion of value is a reflection of valuation
event (the action and carried out by the subject X is good). Moreover, the
value judgments match the standards set forth in that both are not
intended to give information, but direct the action (the action and must be done by the
subjects). But the rule also establishes a particular form of conduct (the subject
X must perform the behavior and so Z). In defining the values we can not ignore the problem of its foundation. There are 2 streams based:
a) The axiological objectivism: it sees as pure essences values, objective and
absolute validity that are independent of the experience of reality. Material realities are real.


b) The axiological subjectivism: it reduces the field values of the wishes or interests of individuals. Something is valuable to the extent that individuals value it.
Appears, tb, a sector that, compared with the two alternatives mentioned, calls third
option: the axiological intersubjetivity conceives of values as a reportable categories. It assumes the possibility of establishing the necessary conditions to reach an open and revisable consensus about the values to apply based on human needs.
3.2 The functionality of the values
By asserting that the RHS has been created to comply with certain values, we are referring to an element of the structure of any normative order: the purpose. We find that we are dealing with 2 concepts: aims and values. Determine values for the purpose. It appears the primary function of legal values as the foundation of the purposes of law and the obligation to comply. A second function would be: to serve as critical elements to assess any existing legal regulations.
This code of values that serves as a contrast to the positive regulations is the ideal law or law should be. Paradigm towards which it tends. There is a circular relationship between the two systems: the ideal system for real RHS needs to be picked up by the positive rules and positive law, to achieve the legitimacy required to incorporate these values in what ought to be law
4. The main current legal values
Values change and become quite frequently and these changes are broad and deep. And there is the problem of the historicity of legal values.
4.1 The historicity of the legal values
Time to determine what those values, we face new challenges such as: the historicity of the same (varying with time, space and the convictions of the social group) and their great diversity. Thus, there is a profound contradiction between the idea that variability and stability that must be incorporated as such securities. The legitimate values are mutable positive order of 3 depending vbles: a) time, b) space, and c) the convictions of the social group. Doctrinally have been identified as causes of the historicity:
a-diversity of social subjects and change them,
b-the varied and changing needs of each historical moment and the means for their satisfaction;
c-the modifications arising from practical experience;
d-priority social needs in each situation presents, and e-the multiplicity of the values themselves.
For still others, only two arguments used to justify the historical change of values: what varies is not the values but the knowledge that men have of them; and values exist only within the cultural framework within which they operate .
4.2 The diversity of legal values
4.2.1 basic legal value: Justice
Enabling Justice in society. A basic criterion that the right should actually lead to social relations. Resulting therefrom other values.
4.2.2 Collective Legal Values: Social peace, common good and security
Legal. Legal Sec: Linked to the concept of rule of RHS. The very existence of
State is a source of security to secure the monopoly of coercion and act through legal rules. It can distinguish two dimensions: the certainty of the legal order and confidence in the legal order. The first concerns the need for
know whom the law can adapt their content and their
behaviors to them.
4.2.3 Individual legal values: personal dignity, personal freedom, the
personal equality.
Affect the interests of individuals and have become the axis around
which has focused the assertion of human dchos.
Through personal dignity, the person shall be subject to insults and humiliations and involves the positive affirmation of the full development of his personality, ie the total autodisponibilidad recognition of the potential of every human action and self-determination born of the historical projection of human reason
ITEM 20: THE CURRENT LEADERSHIP OF HUMAN RIGHTS
1. Approximation of the concept of Fundamental Rights
Fundamental rights are understood those rights which no man holds the concession of positive rules, but before e
independently of them by the mere fact of being human, to participate in the
human nature.
There is also talk of natural rights, a term used to refer to its foundation in nature, natural rights, a term used to refer to its foundation in human nature and fundamental rights, we note that the dimensions affecting basic human and endearing. Human rights are regarded as core management and defining the content of justice. And on the other hand, it also recognizes that the movement which led to the proclamation of human rights was conceived within the doctrine of natural law, so that these rights began to be recognized as natural dchos.
The rights do not fall into the category of exercise are always key private. Case, however, of fundamental rights are exercised almost always against the State or other public entities where the owner has estimated damages to specific performance, curtails or limits those rights and freedoms to which they are relate. The exercise of human rights is therefore an act of defense against intrusion of power in the sphere of freedom of the individual. The power always expresses growth trend, hence the need to control, need that answered the call? Rule of Law? That was forged in the modern age laboriously frete the absolute state, which holds as one of its features recognition of fundamental rights and freedoms guaranteed.
2. Doctrinally need to develop a foundation of rights
rights: human rights and fundamental rights
2.1 General approach
Human rights today have a total acceptance and enjoy a universal
recognition and primacy over any other powers or rights, patents remain in the constitutions of all countries.
But what these rights are based, where they sprout, what is its source?
For these rights is not important but strive to justify that the conditions necessary for their effectiveness.
The struggle for the realization of the demands of justice in social organization is still today a good cause and ethics and politics remains a big door that the
daily legal life leaves open the hope that they fully recognized the
human dignity and fundamental rights that derive from it.
2.2 The critical stance of Norberto Bobbio
Relativist position: NORBERTO BOOBIE; for this author, it is useless to seek a foundation
all human rights. It claims four reasons for his assertion: a) the vagueness of the expression? Rights of Man? B) the historical variability of the same; c) heterogeneity, and d) the contradictions that appear between the rights claimed by various subjects: The conclusion reached is this? it comes to finding the absolute foundation, but find the various possible grounds?
3. Various justifications for human rights
3.1 Doctrine of Natural Law
The seating position prefers natural law of human rights in a higher order objective to provide a universal basis and which therefore can be appealed at any time and place.
But que is in fact a right?. It is an advantage or privilege that an individual holds about one thing or on other subjects: the primate situations must be authorized and in the social area no other organization can, that which comes from the rule of law. Accordingly, all right, and, of course, human rights, must be based on a rule: without it, you speak of expectation, desire, interest, desire, utility and even strength, but not right in the strict sense of term.
From a historical standpoint, it is unquestionable that when, in the eighteenth century, begins to open the consciousness of humanity to the idea of human rights, no one doubts that they come from the ius naturale and are therefore called natural rights, emphasizing its connection with human nature.
Our own Constitution evidence inspiration Natural Law in Article 10, q introduces Title I, devoted to dchos and fundamental duties:? Digino of the person, the inviolable rights which are inherent in it …?
The foundation that we advocate natural law requires certain clarifications. Repeatedly, we prefer to talk rather than natural law, of legal objectivism, understood as the affirmation of a reality metajurídica that, somehow, conditions and limits the activity of the legislature. A reality that has to be a connected computer, of course, human nature, but also to other factors.
The foundation of natural law of human rights is condensed into basic aset they are not creating positive norms and therefore there prior to recognition that they give them, although in that previous existence with a dubious effectiveness in practice.
3.2 or positivist legal philosophy
Human rights are grounded in positive law, the legal system that receives and surrounds of securities for their exercise, before being incorporated into positive law, no such entity as human rights. We must say that when talking about? And? And understands that is legitimated by the popular will expressed through a genuine system of representation, which, ultimately, the ultimate basis of repeated rights are at the popular will.
For Peces-Barba, if a human right is not recognized and protected by a positive rule is not law, but a value whose realization will always desirable but certainly not in the legal world.
Because if human rights are not rights in a system that does not recognize, in the name of revolution justify what will fit?. The revolutionary event is only legitimate when the contested power has ignored fundamental rights of the subjects, which in turn forced those rights exist.
3.3 Ethics Natural Law Doctrines
According to this argument, the rational nature of human beings contains in itself
trends that constitute potential or natural powers of action for the subject (ie primary or natural rights).
But true human rights (or natural) are those that correspond only to men under all circumstances and situations and can not ever being denied.

4. Reception of human rights in the constitution: the rights
fundamental
From s. XVIII (dcho natural), the man who dchos are by their nature, have not ceased to have an increasingly strong presence, so they have come
to be accepted as criteria for measuring the legitimacy or fairness of the legal state and the exercise of power. Actualm, we accept the doctrine that human rights are the crux of the body of demands of justice and, therefore, are also the principles or core values of law and political organization.
The French National Assembly gave its approval to the Declaration of the Rights of Man and Citizen. Deep ethical impulse regenerated: the Virtual Model of human dchos on the organization of social and political life. 150 years later, the UN General Assembly, gave a new voice in the Universal Declaration of Human Rights.
The 2 most singular moments of the process of recognition and proclamation of human rights have converged to highlight the role q corresponds to these rights in the task of regenerating the ethical conscience of mankind d.
It is now generally accepted doctrine that the principle of justice has finally found its most visible expression in the human rights codes. And sereconoce also that these rights are the principles or core values of law and political organization. The humans are dchos and are acting as the basic code of ethics-uni versalm. acceptable: the ethics of respect for personal dignity of men.


ITEM 21: Diversification? HIST: ICA and systems? ICA OF KNOWLEDGE JUR? ICO

1Grandes features of the evolution of legal knowledge
In analyzing the development experienced by knowledge juridic through history, it seems possible to avoid the presence of this species? and? EU has generally guided the evolutionary process of human thought: the principle of increasing diversification and specialization of knowledge. The knowledge or legal knowledge also experienced the influence of 2 complementary fronts that has advanced the overall process: the formation of large blocks of different epistemological and the consolidation of relatively independent sections or plots within each block. Thus, the reflection q men have developed on the RHS do along the H meetings, has been placed in some perspective: the practical knowledge of the religious, the philosophical and the strict scientist.
In the constant progress of the process of rationalization which man develops in relation to their own world, the movement has always occurred, apparently, in the sense that the explanation goes from mythical or religious to philosophical and scientific explanation.
1.1 The origin of the Philosophy of Law
The philosophical perspective has been permanently present in all the major historical events of legal knowledge, though, has been mediated by sp tensions of religious origin and destiny secularization.
1.2 The legal positivism: the science of law
The strict scientific KNOWLEDGE responds primarily to the concern to define and explain the regulatory scope of each of the rules contained in the respective legal or historical Dchos. Due to the large internal CRECIM and therefore become independent of the various sectors or bodies of legal (civil, penal, commercial, administrative, labor, etc.) has occurred within the scientific knowledge of the law a continuing deployment of research sector have been integrated into the dense current frame of legal science-systematic policy. And those investigations, incorporated in academic disciplines, are now occupied by the nucleus dcho own law firms representing the officers and they become almost sp in the priority order for students of RHS.
1.3? Laps against formalism? FOR TRADE: The Sociology of RHS
Not clearly established as a science until the beginning of s. XX. Is science or representation of legal knowledge that aims to identify, verify and develop systematically the interdependence between law and other facts or social agents. Science or sociological legal knowledge has as its subject to study law as a social phenomenon that exists within a complex network of mutual interference with all social phenomena and, therefore, is influenced by multiple constraints from these phenomena. The sociological analysis must address:
1. Study dela dependence of the law on social organization
in which he was born and developed.



2. Inquiry dela Dcho influence that exerts itself on Ser mechanisms of social organization and its development.
3. Analysis of the relationship between self reliance of legal values and other values that inform or Ppios social system, while identifying the impact that causes influence on law and social reality in total.
The way or method that can and should follow the RHS sociological research has to be complex. First, as the science of social facts is to develop a research has substantially on. explanatory and descriptive, based on the
empirical and objective observation of legal phenomena. But on the other hand, the
Sociology of RHS is q KNOWLEDGE access comprehensive legal reality, ie the discovery of the significance or intentionally humane than RHS inevitably realiza.Observacin-explanation on the one hand, and understanding, on the other are thus both directions Supplementary why it has to move inexorably the Sociology of Law in the way of his analysis of the interdependence between the legal phenomenon and Other relevant facts or factors of social life. It is also inevitable that this science investigation harmonize the theoretical or empirical immediately dimension.
2. Overview of legal knowledge at present
As things stand, the horizon of legal knowledge includes a very comprehensive list of skills or? Gums? Ue, but in no case become entirely independent, they are sufficiently distinct to be treated separately scientific and academic.
Can be realized today (after removing a religious consideration, being very low rate and moving from the lowest to the highest degree of generality and abstraction) in these 3 major regions or areas:
[1] The practical legal knowledge: includes legal policy and law.
[2] The area of legal knowledge scientific, which integrates the field of systematic legal science-factual, the normative legal science-systematic and normative legal science-systematic.
[3] The area of legal knowledge philosophical, projected on the theory of KNOWLEDGE. law, the fundamental theory of Dcho theory of law and fair.
3.Contenido of the Philosophy of Law
The RHS philosophical KNOWLEDGE is knowledge and self pantónomo. Being self-seeking knowledge Ppios the first and last of the legal reasons, without giving any prior truth as solid and without supporting the truthfulness of his conclusions in any other previous legal knowledge. It is he who gives razion of existence, meaning and scope of the other manifestations tions or levels of legal knowledge, has considered the primary legal KNOWLEDGE from the logical point of view. As pantónomo, attempts to provide an all-encompassing understanding of the legal reality, confronting her with the plan to give a reasoned and rational explanation as to the legal unit and mortality, so q is not outside the scope of efficiency-Explicatio is any aspect of the reality of the law or knowledge of it. Then, this knowledge has emerged from and within the philosophy gral
RHS philosophical knowledge is recognized and accepted and is a reflection type or level of q crucial because without it, many aspects imp? Of the reality of the RHS would have no satisfactory explanation. The philosophy, which takes place substantially on. as a reflection on one’s knowledge (th. of knowledge) and as a reflection on the act of the knowing subject (th of the con-duct or ethics), ends up being tb reflection on the realities that, as the RHS, interfere with being, knowing and acting subject’s philosophizing.
Philosophical knowledge is for the RHS undertake the tasks:
a) In connection with the possibility and extent of legal knowledge: analysis of radical possibility of the potentialities and the basis of reliability of practical rational knowledge; delineation and coordination of specific tasks of the respective ethical philosophy, legal philosophy and policy, research about the possibilities, limitations and methodological requirements of the various areas of legal knowledge.

b) In connection with the delineation and characterization of RHS essential: fixing of the meaning and function that corresponds to the RHS in social life; det. Ppios element or reality that form the ontic-existential (nature or
mode of being) of RHS; juridical norms contrast with other basic norms of human social behavior (Moral and Social practices, ppalm);
examination of the structural dependence of the RHS with respect to other factors leading to the organization of society (religion, economic or political power), determination of the concept rationally founded? ential? l RHS and basic legal category

c) In connection with the legitimacy or ethical justification of legal laws: discussion
fundamental about the criteria that could / should be used even measure the degree of rationality and humanity (ie, corrections and justice) of existing legal norms, critical examination of the extent of compulsory law in the analysis of the need to harmonize between the imperatives of public ethics management MEASUREMENT PRINCIPLE (RHS / Moral social) and the management of private ethics MEASUREMENT PRINCIPLE (Moral Individual / Religion), systematization of a comprehensive theory of human dchos in the development of a rational justification of the same ; clarification
of the radical demands that human dchos project on setting up the legal regulation of cohabitation.
All these tares are complementary and contribute to the completion of the
purpose or function that corresponds to that knowledge within the system of legal knowledge gral. All these tasks are linked to one of the basic issues confronting the philosophical analysis of the RHS: the epistemological problem (or of legal knowledge), the ontological (or being the RHS) and deontological (or duty-being of Law). Consequently, such
knowledge has become more specialized or diversified in relation to these 3 major questions.
3.1 Theory of law
Nature or mode of being of law.
3.2 Theory of legal science
The legal knowledge.
3.3 Theory of Justice
The ideal or what ought to be the law.

22. THE SCIENCE OF LAW AT PRESENT. PRINCIPAL MANIFESTATIONS.

1. POLICE KNOWLEDGE OF THE POSSIBILITY OF PERCENT? ICO DOBRE LAW

The main purpose of the doubts and doctrinal debates has been the ability to recognize character and scientific status to that peculiar knowledge of the jurists, which attempts to determine the meaning and scope of regulatory statutes and rules of conduct contained in the law.

There was a reductionist view that generally understood that only supports a truly scientific knowledge, while individual or singular is always beyond any scientific consideration.
This view was explicitly overruled in the early s. XX. He proclaimed the dualism that leads to knowledge of two different basic epistemologies: the physical mathematical model generalization, characteristic of the natural sciences, and individualistic spiritual model, typical of the social sciences, cultural and historical.

Currently the debate on the possibility of scientific knowledge of the law must be regarded as definitively settled.

Traditionally, it has been talking about dogmatic science of law, which means that the scientific study of the normative dimension of law constituted a block that kept an essential unity. Thus, although the trend is moving towards increasing becoming independent from different plots, it appears that there is still including the basic functional complementarity. Structure of the Science of Law: Legal Dogmatics
Comparative Law General Theory of Law

1.1. TEOR GENERAL LAW

Following on from the late nineteenth century proposed a program of action to build a system of basic concepts of legal science.
Because, although the details of the different legal systems are different, there is no reason why the classifications and key elements of the organization are not in much the same.
The General Theory of Law can be seen as part of the philosophy of law or as a field of legal science. But, the option to distinguish in the field of legal knowledge, especially scientific bounded space for the general theory of law seems to be the most successful, in a strictly systematic legal epistemology.

2. Sociologist LAW

The law as social fact presents two perspectives of analysis: through its incessant flow of historical time and its continued presence in the system of social phenomena.
The study of the factual dimension of the law has led to the development of two different knowledge individuals: the History of Law and Sociology of Law, which seem to be inscribed on the great circle of the epistemological? Ence of law?
Its proper object of study to the law as a social phenomenon that exists within a complex network of mutual interference with all social phenomena and, therefore, is influenced by multiple constraints from these phenomena. Thus, the sociological analysis of law has to deal, at least the following specific tasks:
. Study of the dependence of the law on social organization in which he is born and develops, trying to find all those elements or factors of social organization that affect the birth, maintenance, alteration or disappearance of law; Inquiry into the influence that law itself has on the main mechanisms of social organization and its development 3. Analysis of the relationship between self reliance of legal values and other values or principles upon which the social system.

As the science of social facts it is, must develop a fundamentally explanatory and descriptive research based on empirical and objective observation of legal phenomena.