Legal Construction: Types and Standard Elements
Legal Construction
Legal construction is the intellectual process of determining which legal rule applies to a specific case. This reasoning involves analyzing and finding the specific rule relevant to each situation. It’s the process of identifying the applicable standard. This intellectual process, used by legal practitioners to determine if a rule of law applies to a given reality, is structured and organized by conceptual jurists.
Legal School Construction
Judicial Legal Construct
This is the construction made by a judge, placing the case within a pre-set standard, essentially forming a syllogism. The judge seeks the standard that encapsulates the case. This judicial creation often appears as a logical syllogism: the major premise is the law, the minor premise is the proven fact, and the conclusion is the court’s ruling. Thus, judicial construction is understood as a legal syllogism.
Systematic Construction
This involves reducing diversity by consolidating various legal rules concerning the same matter into a single, unified idea. This approach handles a particular case by unifying the variety of rules. For example, the concept of collective legal personality, or moral character, encompasses all rules governing collective entities. All legal concepts and ideas related to collective entities coalesce into a conceptual form, unifying the rules of law relating to collective legal personality.
Creative Construction
Here, the organs of justice create the solution, not just drawing from predetermined rules; they can create the rule itself. A clear example is in France, where, in the absence of specific legislation, judges can create a rule to solve a case. The judge is not bound to a predetermined standard when resolving a case with gaps in the law.
Note: Creative Construction in Venezuela is not strictly the same, as a court may not create a policy in case law. However, analogy can be applied, and general principles of law can be used (Art. 4 CC 1982).
Built as a Standard is Legal
Every legal standard is composed of legal concepts. A rule of law expresses a judgment, which is a connection between a subject and a predicate. In the case of a rule of law, it’s between the antecedent and the result of compulsion.
Any legal rule has a condition part (the case), a part that is what the standard “wants”, and a coercive sanction.
Example
The civil code states that, given a lease, the fee must be paid. If the tenant fails to pay, the judge should enforce it. Here are the three elements: the lease, the obligation to pay, and the coercive part (execution of the obligation). All these elements are concepts: the lease, the penalty, etc. Legal concepts are also ordinary and technical concepts necessary for the expression language in its grammatical formulation.