Legal Theories and Concepts: Exclusionary Rule, Analogy, and More
1. The Exclusionary Rule
The exclusionary rule posits that no legal facts are irrelevant, asserting that law has no gaps. Every specific legal rule governing certain acts is implicitly accompanied by a second, implied rule. This second, general and exclusionary rule, excludes from the specific rule all unforeseen events subject to a contrary regulation. The legal system comprises all legal provisions and their implicit exclusionary rules. Anything not legally prohibited is lawful or permitted. This closing statement ensures the completeness of the legal system, assigning a legal qualification to all facts not covered by specific standards.
2. Analogy in Law
Analogy in law is a logical reasoning process applying a legal standard to an unregulated case similar to a regulated one, based on the principle of ‘where the same reason exists, that provision must exist’. When there is identical reasoning between two similar factual circumstances, the rule of law can be applied to the unregulated case. However, analogy cannot establish penalties or derogate from general rules, particularly in criminal law, where the principle of legality (no crime or punishment without law) applies.
3. Kelsen’s Subjective Rights
Kelsen argues that the error in traditional subjective rights theory is considering them distinct from substantive law. For Kelsen, law is positive law created by man. A legal right is simply substantive law viewed from the subject’s perspective, relating to the subject whose actions could trigger a state-imposed sanction. Kelsen prefers ‘law in an objective sense’ and ‘right in a subjective sense’. The latter is the norm analyzed from the right-holder’s perspective, encompassing: a) the power to enforce the obligation, and b) the duty imposed by the rule and its associated penalty. Subjective right is dependent on substantive law; it exists only when covered by a rule of law.
4. Hobbes’ Validity of Law
Hobbes’ concept of legal validity is contractual, based on two assumptions: a) man is naturally sociable, and b) man is naturally selfish. Hobbes argues that without law, man’s inherent selfishness would lead to a ‘war of all against all’. To avoid this, individuals must surrender their unlimited natural freedom through a complete and unconditional contract. This renunciation empowers a sovereign to impose law and define justice. The validity of law rests on this social contract; all rules originate from the sovereign. This is a formal theory of validity, focused on the rule’s origin rather than its content.
5. General Principles as a Formal Source of Law
Civil Law
Article 24 of the Civil Code addresses general principles, primarily for interpreting obscure or contradictory legal passages when other interpretative rules fail. This suggests a positivist approach, where principles derive from the law, not vice-versa. Article 24 doesn’t address gaps in law, implying principles are not a formal source in such cases. The term ‘general spirit of legislation’ further suggests that only principles inductively derived from Chilean law are applicable.
Litigation
Section 170 of the Code of Civil Procedure states judgments must contain the applicable law or, in its absence, the principles of equity. This suggests an integrative function for general principles, making them a formal source when no specific law exists. Courts cannot refuse to rule on matters within their jurisdiction, even without specific legislation (principle of inexcusability). Thus, general principles are a formal source only under Section 170.
Some argue Article 24 also implies an integrative function for principles when contradictions cannot be resolved by specialization, hierarchy, or timing. In such cases, a gap exists, requiring principles to fill it, thus acting as a formal source.
6. Definitions
- a) Punishment:
- The legal consequence for committing a criminal offense. Cuello Calon defines it as suffering imposed by the State following a guilty verdict.
- b) Penalties:
- The legal consequence for breaching a legal duty, arising from a law, sentence, or contract.
- c) Legal Persons:
- Fictitious entities capable of exercising rights and assuming civil obligations, with legal representation (Art. 545 CC).
- d) Domicile:
- Residence coupled with the actual or presumed intention to remain (Art. 59).
- e) Civil Status:
- An individual’s quality enabling them to exercise certain rights or contract certain civil obligations (Art. 304). Doctrinally, it’s the permanent quality derived from family relations.
7. Legal Incapacity
Article 1446 of the Civil Code states everyone is legally capable, except those declared incompetent by law. Article 1447 declares the insane, prepubescent, and deaf-mute who cannot clearly understand as absolutely incapable. Adults and children under interdiction are also incapable, but their actions may have legal value in certain circumstances.