Legal Concepts: Exclusivity, Analogy, Life, Validity, Equity, and Responsibility
1. Theory of Exclusive or General Negative Norm
This theory, championed by Ernesto Zitelmann, posits that there are no irrelevant legal facts and no gaps in the law. Every legal rule implicitly contains a second standard, excluding all unanticipated events, which are regulated by an antithetical legal principle. This second standard is the general exclusive norm. For example, a rule prohibiting cigarette exports implicitly allows the export of all other items. This is encapsulated in the closing standard: “everything not legally prohibited is permitted.” This ensures all facts have a legal status, with permissible actions representing citizens’ freedom, protected by law.
2. Analogy as Integration Procedure
Analogy applies a legal standard to a similar, unregulated case based on shared reasoning. If two situations share essential legal equality, the rule governing one can apply to the other: “where the same reason, that provision must exist.” Analogy is widely used in private law but limited in criminal law due to the principle of legality (no crime or punishment without law). Sanctions and derogations from general rules cannot be applied by analogy.
3. Beginning of Natural Existence and Legal Protection
Natural existence begins at conception. Civil Code Article 76 presumes conception occurred 180-300 days before birth. Article 19 No. 1, item 2 of the Constitution and Article 75 of the Civil Code mandate legal protection for the unborn. Courts can take protective measures. Penal Code Articles 342 and following address abortion. Legislation is underway for prenatal leave.
4. Validity of Law in Thomas Hobbes’ Doctrine
Thomas Hobbes, a 17th-century English philosopher, advocated absolutism based on a social contract. He argued that humans are inherently selfish, leading to a “war of all against all” in the state of nature. To escape this, individuals unconditionally surrender their freedom to a sovereign who imposes laws. This social contract, though hypothetical, justifies the law’s validity through the sovereign’s authority.
5. Equity as a Formal Source
In Chilean law, equity is a formal source. Article 170 No. 5 of the Code of Civil Procedure, Article 10 of the Courts Organization Code, and Article 73 of the Constitution mandate that judges rule based on law or, in its absence, principles of equity. This arises from the principle of inexcusability, requiring courts to resolve cases even without explicit legal provisions, provided the case falls within their jurisdiction.
6. Definitions
Punishment or Penalty (Criminal Law): Legal consequence for criminal behavior, defined as suffering imposed by the State following a guilty verdict.
Punishment (General): Legal consequence for breaching a duty arising from law, sentence, or contract. Distinct from coercion.
Legal Person: Civil Code Article 545 defines it as a fictitious entity capable of rights and obligations, represented in and out of court.
Address: Legal seat for exercising rights and fulfilling obligations, combining residence with the intention to stay (Articles 1959-1965).
Marital Status: An individual’s permanent societal quality resulting from family relationships.
7. Direct and Indirect Responsibility
Direct Responsibility: Sanction for one’s own actions.
Indirect Responsibility: Punishment for a third party’s conduct, limited in modern law to civil cases. For example, Civil Code Article 2320 holds parents responsible for their children’s actions, and Article 2322 addresses employers’ liability for employees.