Understanding Legal Systems and the Rule of Law

Posted on Oct 27, 2024 in Law & Jurisprudence

ITEM I: Understanding Rights and Laws

Right

A set of rules governing the conduct of men in society, for the common good.

Class

Subjective Right: The right or power to enforce one’s rights, limit those of others, possess or demand something under the rule of law.

Objective Law (Natural Law): A set of ethical standards of justice that arise from human nature and are related to human deployment and co-existence. Natural law derives from human nature.

Positive Law:

  • Right (Adjective): The set of rules and principles that regulate legal relations, making use of judicial activity, including procedural laws and prosecution.
  • Right (Noun): The substantive law, consisting of all legal rules of different origins that establish the rights and obligations of individuals.
  • Public Right: The part of positive law governing relations between state bodies among themselves, and between these and individuals, provided that the State acted with authority (imperium).
  • Private Right: The part of positive law that regulates legal relationships between individuals and between these and the state, provided that the state acted without authority (imperium).

Regulation

An ordered collection of rules or provisions given by proper authority for the execution of a law or the rules of an organization.

Custom

The constant repetition of a uniform standard of conduct, with the belief that this is due to legal necessity.

Doctrine

Jurisprudence, the opinion of prestigious jurists on a particular subject. Although not a formal source of law, it comprises opinions, studies, and treatises of legal scholars and teachers.

ITEM II: Legal Systems and Norms

Legal System

The set of legal rules governing a particular place at a particular time. In democratic states, the legal system consists of the Constitution (the supreme law), laws passed by the executive (such as regulations), and other regulations (e.g., conventions, treaties, agreements, and provisions). Do not confuse the legal system with a legal field, which is a specific area of law. The relationship between these two concepts is of genus to species.

Individual Legal Norms

Relate to specific legal situations or individuals. Some authors consider them legal actions governed by rules of law, such as contracts, wills, judgments, and legislative decisions.

Legislation

The process by which state agencies formulate and enact general rules of law enforcement, specifically called laws.

The Legislative Process

Involves the legislative and executive powers and includes six stages:

  1. Initiative: Introduction of a bill by certain state organs (President, Representatives, Senators, State Legislatures).
  2. Discussion: Chambers deliberate on initiatives to determine approval.
  3. Approval: Chambers accept a draft law (total or partial).
  4. Sanction: Executive acceptance of an initiative after approval by the Chambers.
  5. Veto: Presidential refusal of sanction to a project accepted by Congress.
  6. Publication: Approved and sanctioned law is disclosed in the Official Journal of the Nation.
  7. Initiation of Force: The law comes into effect.

Original and Derivative Production of Law

  • Original: Law created for the first time, without transmission from a previous source.
  • Derivative: Law derived from a pre-existing title, such as inheritance (death) or inter vivos transfer.

The Hermetic Legal Order

Expresses the idea that every situation can be resolved legally, in accordance with legal principles.

ITEM III: The Legal Standard

The legal standard can be imposed by force, with guaranteed penalties. Its purpose is justice and equality. It must be written to be known and is created by the state.

Types of Sanctions

  • Penalty (criminal law)
  • Compensation (civil law)
  • Annulment of the act

Characteristics of the Rule of Law

  1. Imperativeness: Commands or prohibits something, with penalties for infringement.
  2. Generality: Applies equally to all recipients, without discrimination.
  3. Abstraction: Regulates general assumptions, not specific cases.
  4. Bilaterality: Establishes rights and obligations.
  5. Heteronomy: Imposed by a foreign will, not the recipient’s own.

Structure of the Legal Rule

Mandate + Penalty = Rule of Law

Mandate: Secondary standard.
Penalty: Primary standard.

Some rules have no penalty.

Classification of the Rule of Law

  1. Sphere of Validity: General and Local
  2. Temporal Scope of Validity: Unknown Effective, Effective and Determined
  3. Personal Sphere of Validity: General/Abstract and Individualized
  4. Material Scope of Validity: Private Law and Public Law
  • Scope (Space): Territory where the legal standard governs.
  • Scope (Temporal): Period during which the rule is effective.
  • Scope (Personal): Individuals influenced by the standard.
  • Scope (Material): Content of the standard.

ITEM IV: The Penalty

The legal consequence of breaching a duty. It is conditional on the completion of a secondary action (the breach of duty).

1. Coercion

The use of violence or imposed conditions to force an individual to perform or omit certain conduct.

2. Relationship Between Punishment, Enforceability, and Coercion

Punishment (consequence of secondary legislation) is distinct from coercion (forced implementation of the sanction). Law tolerates and prescribes force to ensure observance of its precepts. Enforceability is the possibility of enforcing a rule non-spontaneously, even against the obligor’s will. Moral duties are met spontaneously and cannot be forced.

  • Coercion: Impulse to act in a certain way.
  • Enforcement: The State enforces compliance with a sanction.
  • Punishment: Adverse consequences for failing to fulfill legal obligations.