Human Rights and Sources of Law

Hierarchy of Legal System

• Human rights are the only exception in International Treaties that can surpass the Constitution.
• Principle of Competence: Subject and Territory.

Sources of Law

• Written law: The Constitution is the highest rule, advocating for peace, order, and individual and collective security.
• Exceptions: Human rights are used to protect individuals.
• Custom: Uniform, general, public, temporary, and local.
• Jurisprudence: A set of uniform, explanatory, supplementary, and renovating sentences.
• Scientific doctrine: Found in books, treaties, magazines, and newspapers, filled with theories and scientific studies.
• General Principle: Legal norms existing among the majority of nations.

Types of Sources

• Material: The reason why the law was created (e.g., increase in drug consumption).
• Formal: Where the law was created (e.g., President, Assembly, COE).
• Historical: Documents providing information about past norms (e.g., U.S. and other countries that have successfully implemented similar laws).

Origins of Law

• 3000 BC: Ancient Egyptian law (Ma’at).
• 2200 BC: Code of Ur-Nammu (Sumerian ruler).
• 1760 BC: Codex Hammurabi (Babylonian law).
• 449 BC: The Twelve Tables.
• AD 529: Corpus Juris Civilis.

Theocratic Law

• Laws sent by God.
• Examples: 10 commandments, Halakha, Canon Law, and Sharia Law.

Autocratic Theory

• Autokráteia = absolute power.
• Examples: Dictators, monarchs, and authoritarian regimes (e.g., Venezuela, North Korea).

Marxist Theory of Law

• Law is a tool of influence of the ruling class towards the dominated class.
• Examples: Slave society, feudal society, capitalist society, and socialist society.

Islamic System

• Main sources of law: Quran and Sunna.
• Quran: A compilation of the words of the Prophet Muhammad, written after his death.
• Sunna: A compilation of the words of the Prophet Muhammad, considered as divine revelation.

Hybrid or Mixed System

• Conglomerate of positive rights that gathers the necessary elements to be considered as a legal system.
• Examples: Coexistence of two or more legal traditions within the same system.

Acquired Rights vs Expectations

• Having an acquired right is different from having expectations to acquire that right
• Paternity cases: parents must take charge of financial and naming responsibilities if proven right

Repeal of Laws

• New laws can repeal or eliminate old ones
• Types of repeal:
  • Express: past law is explicitly abolished
  • Tacit: new law is incompatible with the old one
  • Total: entire body of laws is abolished
  • Partial: only part of the law is abolished

Procedural Rules

• PLAINT: official legal complaint against someone in a court of law
• QUALIFICATION OF THE DEMAND: gathering all required information
• CITATION OF THE DEFENDANT: formal notification to the defendant
• PACTA SUNT SERUNDA: agreements between parties are binding
• JUDGMENT: final decision

Prescription

• Acquiring control of things over time or extinguishing legal actions through time
• Example: gaining ownership of a termo after a long time

Validity of a Legal Action

• Requirements for validity:
  • Capacity: subjects must be legally capable
  • Consent: expressed will without vice
  • Lawful Object
  • Cause: licit and lawful
  • Solemnities: compliance with legal formalities

Law

• Not universal, varies by country and constitution
• Natural Law vs Positive Law
• Moral laws can change

What is Law?

• Set of rules, norms, rights, justice, and punishments
• Types:
  • Mandates
  • Prohibitions
  • Permissions

Elements of a Valid Contract

• Capacity
• Consent
• Lawful Object
• Legal Cause
• Solemnity

Coercion and Sanction

• Coercion: pressure to conform to law
• Sanction: coercive intervention for law violation

Legal History

• Oral norms formed Common Law, later written into laws influenced by religion
• Disadvantages: ideological problems between regions

Legal System Hierarchy

• Human rights surpass the Constitution in International Treaties
• Principle of Competence: subject and territory

Sources of Law

• Written law (Constitution as Norma Normarum)
• Custom
• Jurisprudence (uniform, explanatory, supplementary, and renovating sentences)
• Scientific doctrine (theories, studies, expert opinions, and discoveries)
• General Principle (legal norms among majority of nations)