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Law
University
Introduction to the Bachelor of Laws. Source: Wikipedia (CC BY-SA 4.0).
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Read the full theory →Concept, classification, and etymology of Law
- Law: a system of norms and principles with a coercive character
- Legal system: the set of norms in force in a State
- Comparative law: analysis of differences between legal systems
- Public law: regulates the actions of public authorities
- Private law: regulates relations between natural and legal persons
- Branches of public law: constitutional, administrative, and criminal
- Branches of private law: civil, commercial, and labor
- International law: divided into public and private
- Etymology: derives from the Latin *directum* (that which is in accordance with the norm)
- Historical distinction: difference between the lawful (legal) and the honest (moral)
Concept, nature, and classification of Law
- Law: a system of general, mandatory norms with coercive sanctions.
- Origin: a mix of rationality, political interests, socioeconomic factors, and social values.
- Normative harmony: depends on the convergence of political interests and the stability of power.
- Formal difficulty: the diversity of bodies and historical moments generates heterogeneity and legal lacunae.
- Normative hierarchy: subordination of norms based on the authority of the body that issues them.
- Prevalence: the special norm prevails over the general norm in specific cases.
- Repeal: the subsequent norm annuls the previous one.
- Objective law: mandatory norms created by the State (focus on validity).
- Subjective right: individual powers granted by the legal system.
Concepts of Objective and Subjective Law and Historical Evolution
- Objective law: norms that regulate coexistence and establish rights and obligations.
- Subjective right: the power or faculty of a subject granted by a legal norm.
- Political rights: suffrage, eligibility, political association, and jury service.
- Personal rights or credits: the origin of correlative obligations.
- Real rights: powers exercised over things regardless of persons.
- State origin: institutionalization of law in the Modern Age.
- Customary law: the basis of the first civilizations (Mesopotamia, Phoenicia, Palestine, Egypt, and Greece).
- Roman contribution: systematization of family law, marriage, adoption, parental authority, contracts, and real rights.
- Humanist influence: Machiavelli, Hobbes, and Locke in the formation of law as an instrument of the State.
- Civil Law: positivist features in Latin America and continental Europe.
Realization and characteristics of law
- Effectiveness: Requires correspondence between the rule and the fact (social/material effectiveness).
- Consensus: The objective is voluntary compliance without coercive pressure.
- Publicity: A prerequisite for validity and the beginning of legal life.
- Validity: As a general rule, it is for an indefinite period from its publication.
- Rational drafting: Must include analysis of causes, effects, and formal requirements.
- Instrumentation: Requires secondary regulations and bodies for its application.
- Principle of legality: Prevents subordinate bodies from modifying or expanding the rule.
- Popular mandate: The citizen is the owner of power; the State must provide guarantees.
- Safeguard: The defense of rights and order is linked to legality.
- Normative characteristic: Law is a system of mandatory rules in social reality.
- Bilateral characteristic: A relationship of rights and duties between two parties.
- Coercible characteristic: It is enforceable by public force.
- Systemic characteristic: Law is an organized set of rules.
- Characteristic of Justice: Law has a projection toward justice.
Characteristics of Law and Sources
- Bilaterality: requires interactivity between two or more people
- Heteronomy: the will is subject to external imperatives
- Coercibility: the requirement to use force to execute the prescribed conduct
- Non-coercibility: a characteristic of social interaction norms (opposite to legal norms)
- Inviolability: the resistance of the norm against violation through sanction
- System: organically correlated norms with rank and precedence
- Legal order: a set of positive norms coordinated hierarchically
- Pyramid of norms: the classic representation of the legal system (Kelsen)
- Concentric circles: the current conception of the legal system
- Justice: the essential and defining element of the legal norm
- Sources of law: facts, acts, or objects that originate current law
Sources of Law: Classification and Concepts
- Historical sources: ancient documents containing laws (e.g., Code of Hammurabi)
- Real/material sources: social, political, or economic factors that motivate the norm
- Formal sources: acts of the State or society to create laws (law, custom, doctrine, jurisprudence, general principles, treaties)
- Customary Law: unwritten law based on the repetition of acts with the force of law
- Custom: can fill legal gaps or repeal inconvenient laws
- Peru: Art. 149 of the Constitution recognizes customary justice in peasant and native communities
- Peru: Art. 66 of the Organic Law of the Judiciary recognizes justice of the peace
- Peru: Law No. 27908 recognizes the justice of the rondas campesinas (peasant patrols)
- Constitution: the fundamental norm of a sovereign State
- Law: a precept issued by a competent authority for the common good
- Jurisprudence: repeated interpretations by courts
- Legal act: an act of private autonomy with prescriptive content
- General principles of law: general normative foundations of the legal system
- Doctrine: opinions of jurists in essays, theses, or manuals
- Statute of the International Court of Justice (Art. 38): treaties, custom, general principles, and auxiliary sources (doctrine/jurisprudence)
- Ex aequo et bono: the possibility of ruling according to what is good and equitable in international law
Legal Hermeneutics and Interpretation
- Hermeneutics: discipline for deciphering the sense and scope of legal expressions.
- Interpretation: determination of the meaning of the norm in a concrete and practical case.
- Authentic interpretation: performed by the same author of the norm.
- Non-authentic interpretation: performed by a third party other than the author.
- Declarative interpretation: coincides with the literal wording.
- Extensive interpretation: applies to more cases than the literal meaning.
- Restrictive interpretation: applies to fewer cases than the literal meaning.
- Subjectivist trend: the meaning is the intent of the legislator.
- Objectivist trend: the meaning is the intrinsic purpose of the law (predominant).
- Exegetical school: rationalism, infallibility of the legislator, omnipotence of the law, and adherence to the literal meaning.
- Free Law school: the judge is not subject to the literal meaning and seeks law independent of the State.
- Historical school: prioritizes the historical element to capture the "spirit of the people."
- School of free scientific investigation: seeks the social purpose and the idea of justice in the face of legal gaps.
Schools of interpretation, elements of the law, and legal integration
- Teleological School (Ihering): The purpose of the law is its essence and must have a social purpose.
- Formalist School (Kelsen): Pyramidal structure where the superior norm is a framework of possibilities.
- Rule-based system: Clear rules of interpretation.
- Non-rule-based system: Freedom of judicial action to interpret.
- Grammatical element: Meaning of the Diccionario de la lengua española (unless there is an express or technical definition).
- Logical element: Analysis of the ratio legis and internal harmony of the law.
- Historical element: Analysis of messages, motions, and minutes of legislative debates.
- Systematic element: Harmony between the precept and the entirety of the legal system.
- Interpretation of custom: Logical and systematic elements predominate.
- Interpretation of contracts: Rules of good faith, analogy, and favor debitoris (favor of the debtor) in ambiguous points.
- Legal integration: Construction of a norm in the absence of a solution for a generic case.
- Normative gaps (de lege lata): Lack of a solution in current law.
- Axiological gaps (de lege ferenda): An existing solution that is perceived as unjust or insufficient.
- Gaps in the law: Affect the entire system (rejected by Kelsen).
- Gaps in legislation: Affect only enacted law and are integrable by the judge.
- Gaps of knowledge and recognition: Distinction by Alchourrón and Bulygin.
Normative gaps, integration mechanisms, and branches of law
- Regulatory gaps: caused by system failures or problems of subsumption.
- Knowledge gaps: lack of information regarding specific facts.
- Recognition gaps: lack of semantic determination.
- Analogical reasoning: moves from the particular to a similar particular (mixes induction and deduction).
- Deductive reasoning: the only absolutely certain type (moves from the general to the particular).
- Inductive reasoning: problematic unless it encompasses all particular cases.
- Romanist doctrine: general principles are maxims of justice from Roman law.
- Natural law doctrine: general principles are prior to and superior to positive law.
- Legal positivist doctrine: general principles are only enforceable if they are contained within the legal norm.
- Natural equity: a corrective to the rigidity of the law (summum ius summa iniuria).
- Legal antinomy: contradiction between norms with the same scope of validity.
- Hierarchy criterion: the superior norm prevails over the inferior one.
- Specialty criterion: the special norm prevails over the general one.
- Temporality criterion: the later norm prevails over the earlier one.
- Public law: regulates relationships between private individuals and public power, or between public powers.
- Constitutional law: fundamental and constitutive norms of the State.
- Criminal law: the study of the punitive power (ius puniendi) and the repression of crime.
- Administrative law: regulates the structure and relations of the Public Administration.
- Public international law: regulates relations between States and international organizations.
- Labor law: an example of an area where public and private law overlap.
Classification and definitions of the branches of Law
- Political Law: studies command, obedience, forms of government, and electoral sociology.
- Constitutional Law: fundamental laws, fundamental rights, and the regulation of public powers.
- Administrative Law: public administration, public services, and legal certainty.
- Migration Law: international transit, entry, residence, and repatriation.
- Procedural Law: conflict resolution, court jurisdiction, and procedural actors.
- Public International Law: conduct of States and international organizations (e.g., UN).
- Tax/Financial Law: tax collection and classification.
- Criminal Law: definition of crimes, penalties, and security measures.
- Private Law: relations between individuals in a position of equality.
- Civil Law: ordinary life (family, property, succession, contracts).
- Mercantile Law: commercial acts, merchants, and business exploitation.
- Private International Law: conflict of laws, jurisdiction, and nationality in private relations.
- Social Law: protection of socially vulnerable individuals.
- Labor Law: social justice in labor relations (individual, collective, and procedural).
- Economic Law: State intervention and control of economic activity.
- Agrarian Law: land tenure and agricultural activity.
- Environmental Law: environmental protection, sustainable use, and sanctions for environmental damage.
Improper crime of omission
- Improper crime of omission: conduct where criminal relevance arises from a lack of action
- Consequences of omission: avoidable damages, deaths, or injuries
- Functional example: a public official who fails to comply with a legal or judicial mandate
- Business example: failing to withdraw defective products from the market despite knowing the defect
Flashcard preview (6 of 40)
- 01
Etymology of the word 'derecho' (law/right): from which Latin word does it derive?
directum
- 02
Meaning of the Latin word 'directum' in the context of law:
that which is in accordance with the rule, the law, or the norm
- 03
According to Ulpian (3rd century AD), what does public law regulate?
the actions of public powers
- 04
According to Ulpian (3rd century AD), what does private law regulate?
private relations between natural and legal persons
- 05
In Ulpian's classification, what branches compose private law?
civil, commercial, and labor law
- 06
According to the RAE (Real Academia Española), what elements integrate the definition of law?
Norms, principles, customs, and jurisprudential and legal community conceptions.
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