Introduction to Law: Concepts and Origin

What is Law? Concepts, Subjects, and Species

Origin of the word "Direito" (Law)

• Originates from the Latin words "dis" (very, intense) and "rectum" (straight, right).
• "Disrectum" means very straight or very right (Montoro, 2000, pp. 30-31).
• Several legal words in Portuguese also have Latin origins: jurisconsulto, judicial, jurisprudência.
• The origin of "jus" (juris) which means equally, right.
• Romans considered "jus" to be lawful and "injuria" to be illicit.

Positivist View of Law

• Emphasizes the shift from "justum" (what is just) to "jussum" (what has been ordered).

Concepts of Law as a Norm

• Law is viewed as a mandatory social rule can allows or prohibits certain conducts.
• IHERING refers the Law as a body of rules coercively guaranteed by public power.
• CLÓVIS BEVILACQUA describes it as a mandatory social rule.

Concepts of Law as Potential

• The law (or power) of a person relating to a specific object is a subjective right.
• An example is the owner's right to use and dispose of their property or the creditor's right to collect debt from their debtor.
• MAYER says law is the moral power to do, demand, or possess something.
• IHERING defines it as an interest protected by law.
• Romans called it "facultas agendi" (faculty of acting). Roman's also called norma agendi what means "norm law"

Concepts of Law as a Fair Ideal

• Indicates what is owed to someone through justice.
• Examples include the right to education or a worker's right to a salary.
• The word "law" signifies what is owed through justice.
• Justice demands unequal treatment for those unequal.
• Ulpiano says justice is the perpetual will to give each one their right.
• Santo Tomás de Aquino says right is what is owed to another, according to equality.

Concepts of Law as a Science

• "Direito" can refer to the Science of Law, in studying criminality.
• Celso defined law as the art of the good and the just.
• Hermann Post says law is the systematized explanation of all juridical life phenomena.

Concepts of Law as a Social Fact

• Jurists and sociologists considers law in studying a collectivity.
• It is related with several aspects, religious, economic and cultural aspects..
• Tobias Barreto refers that law is the sum of conditions coactively insured.

Nature of Law

• Law can be seen as both known and unknown to all.
• It relates to individual rights, what one is owed, and what one owes to others.
• Relies on judges, lawyers, prosecutors, courts, and prisons.
• Legal standards permit or prohibits actions.
• Administrative regulations impose measures.
• University direction alters normative act.
• Law is linked to rules of social behavior.
• Reale defines law for the common person as the set of mandatory rules.

Law as a Rule of Social Coexistence

• Law is considered law and order.
• Acting according to the rules is considered correct, and disobeying rules is incorrect.
• Marcelo Souza and Sofia Galvão defined Law as a daily experience arising from social nature.
• Society and law are interconnected.
• Society has conflicts of interest.
• The law is a thermometer of social relations.
• Law is a phenomenon for managing conflicts and regulating a population (Aguiar, 1999, p. 115).

Pessimistic or Realistic View of Law

• According to Aguiar (1999), law can be consider as a weapon in the legislator's hands, useable in lots of ways.

The Ideal Right

• The ideal is for law to become an instrument of citizenship.

Subjects of Law

• Subjects of law are natural human beings, also known as physical persons, and entities those who the right attributes legal ownership.
• Animals are not subjects of law; they are considered things.
• The term "subject of law" includes physical persons, entities, companies, associations and non-governmental organizations.
• A subject of law is anyone participating from a legally bounded relation , with rights and duties.
• Every natural person has "juridical" ou "civil" personality.
• Natural people's personality appear since the borne moment and it finishes with the death.

Legal Entities

• Considered an abstract entity.
• A legal entity juridical personality is bounded to a law or the registry on competent organs.
• Juridical people of private right is bounded to registry.
• Juridical people of public rights is bounded to laws.
• Personality is a legal value conferred to human beings and legal person.
• Personality is not natural, it is an attribute to value to legal ordering to people those who acts in legal ways in society.
• According to the Civil Code article 2 define who has valid personality.
• According to Civil Code act 45 define: The existance os Juridical people comes with the registration on competent organs.

Registry Relevance

• Civil registration of a child’s birth has a declaratory character of the personality.
• The registry of a juriridical person of is constitutive for it's juridical person.

Natural Law

• "Jus naturale" has its origin in nature and is inherent to all, including animals.
• The central purpose that directs philosophy is the continuous search for justice that comes with man.
• Cicero (106-43 BC) express that natural right is not promulgated for legislative branch but it comes from above and adds legitimacy to the positive right.
• The rights tolife, equality, dignity and personality is part ofnatural right.
• Jusnaturalists think that rights are not created by humans, but are God-given, or inherent to humans.
• A doutrine Jusnaturalists divided in two branches: theological Jusnaturalists and rational Jusnaturalists.

Theological Dimension

• Law must be an act of justice.

Rational Dimension

• Right is an expression if liberty, equality and fraternity.
• the injustice shall be illegal and the sanction is the instrument for justice restoration.

Positive Law

• That which state guarantee.
• Legislated by state it's Positive.
• Customary right created by society and recognized by state is consideres as Positive Law.
• International right those who comes from nations consensus is Positive?
• Jurisprudential right what it's stated by judges is Positive?
• In short; positive right is that which is applied by authorities by International and national organ. (GUSMÃO, 2003, p. 54).
• Jus Positivum and Jus positum expresses itself as "Positive law".
• The coneption of "Positive Right" is monista, what means right is placed or legalized by state.
• According to Nader, 2007, p. 79-80 means the mandatory Legal ordering by state.
• The proponents of this theory means the rights are a human creation.
• Today its common to found scholars those who defend coexistence between natural and postive right.
• Positive Right is always an objective one.

Objective Right

• Objective Right is the set of norms created by state and it's uncompliance generates a sanction.

Subjective Right

• According to Francisco Amaral; is the set of possibilities and powers that judiciary authority offers to someone.
• Because it's facultative, the exercise depends upon someone's else will.

Examples of Subjective and Objective Right

• The silence Right based on articule 5 th, LXIII, CF.
• Respect the parking lot preferences to elderly people it's an objective right.

Objective

• When someone invade a place those who where desocupaded previously it's an objective-subjective right, but the law protects legitimate owner to promove a "reintegração de posse". this is considered objective. but, it's depending on person will

Public Right

• Public rights it's create for juridicial rules those who's focus are organizational and social.
• In this branch of juridicial rules, there are and hierarchy; state x idividual(s). Because the States represents most of people interests.

Private Right

• Private Right is those who can and organize people private relations and interests.
• In this opportunity all parts are in equality, no one is superior.
• The private right exists when individual x individual.
• Individual x State, but the State cannot interfere and must comply.
• "It orders the existance and activity of people in their way with social life".
• On Civil act, there is some freedom once most of regulations are facultative.
• Those facultative regulations allow some autonomy between interested people over certain cases.
• Almost everytime there must be liberty in those act there are some orderings involved.

Material Right

• Are the juridical belongings protected by a person (the essencial thing).
• Is the right those who refer essential aspects of the life, like family rights, prescription, legit defence.
• Is all that who refers to a Life Bien.
• It talks about the contest (body) of right.

Processual Right

• It's the set of rules with aim to improve the aplication of Right Material in a best way.
• It organizes how to implement Material Right.

How Processual and Material Right Works:

• Processual and Material right always works together.
• Processual right is the instrument who guide the justice.

Intertemporal Right

• Is the set of rules those who guide how the law must work alongside the events.
• It's a study of the regulation of application of new law.
• Main problem it's the conflicts when a new law appears.
• Its about those questions:
• What situations will be reguled by a new law?
• What aspects will have retro attitude?
• How equilibrate the juridical safety?

Articles related with the Juridicial application of time aspects for Laws.

• ART. 14 is a basic and most important reference.
• ART. 1045 and 1046