Exploring Key Concepts in Law and Justice
Key Concepts in Law and Justice
Classical Foundations
Themis
Themis, daughter of Zeus, was associated with divine governance and the monitoring of human behavior.
Dikaiosyne
Dikaiosyne represents the general virtue encompassing all other virtues. The poet Teoganides considered justice the greatest virtue.
Dike
Dike, daughter of Themis, embodies the ideal of justice as equality (isonomy) and equality before the law. This concept carries the seeds of democracy.
Modern Legal Concepts
Overcoming Legal Positivism
This section explores the coordination between laws, customs, habits, and institutions, leading to the question of legal sources. Formal sources are the bodies of standards or the forms of their creation. J. Vallet de Goytisolo highlights the transcendence and immanence of law for society and state courts. The central question is whether law is a product of rational or arbitrary will (of the state, society, or judges), or something objective that transcends these entities. Kelsen argues that any norm intending to be law must represent the will of the state. Modern legal codes, placed atop the hierarchy of sources, embody law in written text, prioritizing security through publication.
Equity
Equity can be a source of law, indicating a move beyond legal positivism.
Rule of Law
The concept of the rule of law is found in the Organic Law 6/1985 of July 1, on the Judicial Branch. It involves the separation of powers, the rule of law as an expression of popular sovereignty, the adherence of public authorities to the Constitution and other legal norms, and the guarantee of fundamental rights and public freedoms. This requires an independent body with constitutional grounding to implement and enforce rules expressing the popular will, subject all public authorities to law enforcement, review the legality of administrative action, and provide effective protection for all persons in the exercise of their rights and interests.
Power
Power is the capacity to act and decide within the balance of forces present in all social groups.
Authority
Authority is the state’s power to develop, promulgate, implement, and enforce the rule of law. It is an attribute of power, reflecting the moral estimation, respect, or credit that power inspires.
Sovereignty
Sovereignty is the synthesis of the qualities of political power. Professor Puy views sovereignty as the highest elevation of divine and mysterious power with authority.
Civil Disobedience
Paniagua’s Definition: The manifest, generally non-violent, infringement of law affecting specific norms, aimed at improving those same norms (direct disobedience) or others (indirect disobedience).
Giovanni Cossi’s Definition: A form of disobedience that publicly highlights the injustice of a law to induce the legislature to change it.
Ronald Dworkin’s Definition: A public, illegal, non-violent, politically conscious act done to provoke change in legislation or government policy.
Tyrannicide
The ultimate level of resistance to legitimate power, following disobedience and the right to resistance.
Human Rights and Moral Rights
Ethical, inherent rights enjoyed by all human beings by virtue of their existence. These can be claimed against society and incorporated into law as positive legal rights.
Philosophical Concepts
Unsociable Sociability (Kant)
Humans have a propensity to socialize but also a strong inclination to individualize.
Topic (Theodor Viehweg)
A problematic thinking technique that seeks to provide guidance in situations of impasse or lack of direction.
Constitutional Court
Title IX of the 1978 Spanish Constitution establishes the Constitutional Court, regulated by the Organic Law of October 3, 1979, and formally constituted on July 12, 1980. Manuel García-Pelayo defines it as the defender or guardian of the Constitution, its sole reason for being. It symbolizes the rule of law, complementing the democratically elected chambers and guiding state and social development according to constitutional requirements. This completes the image of the democratic state of law. The Constitutional Court is covered by Articles 159 to 165 of the Spanish Constitution.