Legal Rule Effectiveness: Application, Enforcement, and Time
Effectiveness of Legal Rules
Opting Out of Applicable Law
Opting out of the applicable law may be valid only when not contrary to public order or injurious to third parties. This rule presupposes the impossibility of excluding the applicability and validity of decision rules for stakeholders. The proper understanding of the possibility of excluding the application of a rule—a principle applicable to a situation but whose application is precluded by stakeholder decision—requires placing this matter in connection with the distinction between imperative law and dispositive law. Besides the standards always imposed regardless of the will of their recipients (imperative norms), it is common that rules authorize the persons concerned to regulate relations concerning them, identifying a set of particular rules through private autonomy (dispositive norms).
Penalties for Non-Compliance
If the provisions of a standard are violated, civil liability arises in order to achieve restoration, forcing the violator to comply with the conduct prescribed by the infringed rule and potentially others, by imposing an obligation on the offender to provide monetary compensation or specific performance.
Annulment for Contravening Peremptory Norms
An act contrary to law involves performing an action in an area where there is a prohibition (e.g., stealing). Specific behaviors listed under the heading “acts contrary to the rules” often constitute legal transactions. For these, nullity can be declared, which deprives the act of the legal effect intended by its author. Nullity is a specific category within the broader concept of the ineffectiveness of legal acts.
Temporal Effectiveness of Legal Rules
Causes for Termination of Laws
- Temporary Laws: Where the law itself specifies its own term of validity.
- Intrinsic Limitations: When the validity of the law is linked to the achievement of specific objectives.
- Repeal: This refers to the amendment or revocation by a subsequent law. Repeal may be express or implied.
- Express repeal occurs when the new law explicitly identifies the law being annulled or declares void all provisions contrary to the new law.
- Implied repeal can occur when the new law is incompatible with the old one, or when the new law comprehensively regulates a subject previously covered by the old law.
Retroactivity of Laws
This concerns determining whether a new law should apply to legal relationships established before its enactment, or whether the legal status created under the previous standard should be respected. This is important because legal relations often project over time, meaning those established under a previous standard may continue under the rule of the new standard after the previous one is cancelled.
Regulation of Temporal Effects
The general rule embodies the principle of non-retroactivity of laws. However, this can be an interpretative issue. If the new law says nothing about its temporal reach, non-retroactivity is presumed. If there is doubt about its temporal scope, interpretation is required.
Degrees of Retroactivity
There are different degrees:
- Strong retroactivity: Occurs when the new law affects effects already produced under the previous law.
- Weak retroactivity (or immediate application): Occurs when the new law applies to effects of prior situations that arise after its entry into force.