Understanding the Concept of Law: Dimensions and Perspectives
Lesson 1: Concept of Law
What is right? Hart, a great jurist, philosopher, and politician of the twentieth century, posed the question of what is right. This question has been repeatedly asked and answered by different authors in diverse and sometimes antagonistic ways.
This disparity and difficulty in having a unified view on the definition of law makes one wonder. This may be because the law refers to some aspects of human and social reality that are not easily definable, leading to a lack of unanimous agreement about the concept.
Law is not a univocal term, either from within or without, due to several factors:
- Analysis of law can be done from different perspectives of legal thought, and even from different scientific perspectives like sociology. This implies that law is a multidimensional phenomenon approached from various points of view, leading to different conclusions.
- Law occurs within social life, representing an area of it. Legal phenomena occur in the events of human social life. Human life is social and, in some way, constitutes legal. In this sense, law forms a network of acts of human behavior and scenarios at the beginning and end of their actions.
The features that allow us to classify events or behaviors as legal include:
- A perspective that poses law as a system of rules, a normativist view where law is presented as an object and analyzed by the science of law as a normative science. Law is seen as a pre-existing system providing a model or order for a given society.
Law as a set of rules presents predetermined orders and models. - Another viewpoint is that law is involved in social life. In the primary legal experience, we find conflicts of interest. From this perspective (Ten Picaso), law appears as a means of resolving such conflicts, though not the only way. Law is essentially a set of life experiences often related to decisions about interest-driven conflicts. Law is perceived as an adjective explaining different facts, acts, and situations.
- Thirdly, law is a term belonging to natural language and contains ambiguity and vagueness. Elias Diaz proposes defining law through an approach by areas, allowing a gradual understanding of the legal phenomenon. This approach highlights basic features of law from different dimensions, considering law as norm, fact, and value.
It is policy, giving a model of social behavior. It is a social fact and also has to do with values.
Anthropological Perspective
- From this perspective, law is a specific form of social organization involved in establishing guidelines. Law is a mechanism for management. It is not the only mechanism for sorting human behavior, as morality also exists. Law is primarily an intersubjective dimension, differentiated from other normative systems by how it regulates behavior.
- Law is related to the sociability of human beings. The need for coexistence shows the need for law. Human society requires patterns of behavior to establish models, ensuring community stability. This recognition is a product of civilization, identifying law with the outcome of this process.
Human Phenomenon of Two Levels: Product and Regulatory
- Law is a human product and regulates human behavior. It has a historical character, produced by men under certain circumstances, reflecting historical moments.
- Law is distinguished by its legislative nature. Patterns of conduct are behavioral criteria subject to those targeted by the system, suggesting content covered by law must be, leading to the concept of duty. Legal rules express a duty to be. Some authors find that a rule is a will expressed through the norm, claiming individuals act in certain ways. The features and consequences of this tax vary according to whether it is democratic, aristocratic, etc.
- Many thinkers argue that understanding law requires analyzing the relationship between law and power, and law and force. This helps distinguish legal rules from other norms through the concept of joint work and the constraint of law. Law is related to freedom, as Rousseau defines man as free when obeying the law granted to him.
Axiological Dimension
Law provides role models because it is believed that such conduct is necessary to maintain social stability and progress. Law is an expression of a system of behavior. Many authors find that no legal system is absolutely neutral from an axiological point of view. Values exist within the law, seeking materialization through legal norms. It has been argued that moral law is structural, especially in legal regulation of securities. Some authors view all law as a justification of what is morally right, expressed through legal rules with legitimacy.
Elias Diaz discusses the relationship between legality and legitimacy, including legitimation speech. A legal system of rules may not be legitimized. For Elias Diaz, every legal system has an underlying system of legitimacy with different values and interests supporting it. Conversely, any system of legitimacy is expressed through a legal system.
In summary, legal experience is significant, complex, and problematic. Simplified approaches should be avoided. Every society regulates relations between its members through rules.
Three-Dimensionality of Law
Law relates to behaviors creating, enforcing, and expanding standards. The result of such activity is formalized in a set of rules. It also formalizes references to values necessary for coexistence. We can speak of the three-dimensionality of law, or even four-dimensionality as Luño Perez suggests, adding historical fact to law as norm, value, and social fact.
Manuel Atienza notes that defining law requires overcoming classic mistakes, such as assuming legal concepts refer to a single phenomenon. Law is a term denoting highly heterogeneous phenomena.
Hart said the concept of law has a meaning too rich to define without damaging that richness.