Unidad 2 - El Derecho y las Normas Jurídicas PDF

# Unidad 2 - El Derecho y las Normas Jurídicas ## 2.1 Concepto de Derecho - The word "Derecho" comes from the Latin word "directum," which means "to direct" or "to guide." - This concept is aimed at educating humans in their social domain and studying their behavior. - In this sense, punishment...

# Unidad 2 - El Derecho y las Normas Jurídicas ## 2.1 Concepto de Derecho - The word "Derecho" comes from the Latin word "directum," which means "to direct" or "to guide." - This concept is aimed at educating humans in their social domain and studying their behavior. - In this sense, punishment or sanction norms were created to guarantee a correct coexistence between individuals. - From a doctrinal point of view, Law is the set of legal norms that regulate the behavior of humans in society. - Scholars disagree on the definition of the science of law, but they all agree on the fact that it is normative and obligatory. - This is a characteristic that diverse authors share: "Law is the set of obligatory laws established by the government that may use its force for compliance." Various philosophers and jurists have given different concepts of Law: - Thomas Hobbes (Leviathan, Chapter 26, 1651). - "Law for each subject is the set of rules that the Commonwealth (the so-called Commonwealth of nations) has ordered him orally, in writing, or through another sign of the will so that he may use the distinction between right and wrong, that is, what is contrary to the rule and what conforms to the rule." - Dr. Fernando Hinestrosa (Manual of Obligations) - "Law is a set of norms or prescriptions of conduct whose existence and effectiveness are indispensable for the solidity and harmony of social relations." - "Law is not an end in itself, but a means emanating from society to maintain a balance between humans and to provide for the realization of an ideal of justice." - Immanuel Kant (Metaphysics of Morals) - "Law is the set of conditions under which one's arbitrariness can be reconciled with the arbitrariness of the other according to a universal law of liberty." Karl Marx and Friedrich Engels, (The Communist Manifesto, 1848). ## 2.2 The Concept of Duty and Legal Duty - Before knowing the concept of legal norms, it is necessary to distinguish the concept of duty and that of Law, since it can be interpreted that Law is a duty and duty is Law. - Duty is the obligation that every person has to fulfill in order to carry out a mandate, in other words, it is the act or the non-act of a determinate conduct. - The clear distinction between duty and law is that the former is a form of conduct and Law is the requirement. - A clear example would be the duty I have to pay taxes, and my right is that with the payment of my taxes, the State provides me with public services. - Now, if we look at it from the legal point of view, legal duty is the need for those to whom a norm of positive law addressed to voluntarily comply with it, adapting their conduct to it, in obedience to a mandate that; - in case of default, it can be enforce by force. - "Legal duty is a legal obligation." - In other words, legal duty is that conduct contrary to the unlawful act, or contrary to law, for example, if the unlawful act is the non-payment or non-compliance with an obligation, legal duty comprises the conduct contrary to it, that is, the payment or the fulfillment of the obligation. - Legal duties should not be confused with moral or religious conduct, since they always presuppose the existence of a legal norm that is manifested in the following directions: * It must fulfill the concrete mandate contained in the norm. * It must not hinder its fulfillment. * It must respect the legal situations created by or born under the protection of the norm. * It must cooperate in achieving the purpose of the legal norm. - In conclusion, duty is simply the obligatory nature of moral requirements and legal duty is the pressure that the State imposes for compliance with a norm that has a sanctioning character. ## 2.3 Norm - Before delving into the subject of the norm, it is pertinent to mention that general norms derive from Natural Law and from this, natural laws and social laws result or emanate, as will be explained in detail in the following section. - Now, Law depends on the norm, on the sanction that the State imposes on the citizens for cohabitation in society, from which Law arises. - All human conduct must be governed by different types of rules of conduct. - Norms are classified into moral, religious, social, and legal norms. - The word "norm" is usually used in two senses: one broad (Latu sensu) and the other strict (Stricto sensu). - In a broad sense, it is applied to all rules of human behavior, both obligatory and non-obligatory, and they are classified into two large groups: technical and ethical norms. ## 2.4 Natural Laws - The person, by nature, is a social being, tends to live in society, by necessity; humans created the norms to satisfy in the best possible way the different problems that arise in their daily lives; and it is for this reason that they interact with their peers. - From here, we derive the nature of the law, of human beings, and of their social coexistence. - Therefore, norms set the conduct of humans in different areas. - Now, norms derive from Natural Law, which itself has its origin in human nature and not in the will of the legislator. - It is representative of social will, and it is embodied in positive norms. - Natural Law is necessary, immutable, and objective: it does not depend on any will, it is imposed on humans by their own nature and lasts over time. ## 2.5 Types of Norms - There are different types, which vary according to the scope in which they are applied: religious norms, legal norms, moral norms, social norms. - The individual begins to understand and know many of these norms from childhood. ### 2.5.1 Moral Norms - Moral norms aim to guide humans toward good, avoiding evil; they are found in moral treatises. - They are rules of conduct that, when approved by the individual in their conscience, tend toward the realization of values for the development of humans. - Morality presupposes and requires freedom in its fulfillment, for a conduct to be the subject of a moral judgment, it is necessary that the subject does it himself, that he responds to a position of his own will; - both morality and Law are aimed at the creation of order; - but the order proper to morality is different from the order characteristic of Law. - The mandates contained in moral norms have an ethical purpose, since they only seek the realization of good, so they are directed to the conscience of individuals. - They are unilateral and imperative because, in front of the subject to whom they obligate, there is no other person authorized to demand their compliance. - Additionally, they have the following characteristics: * They are Internal, since they are a modality or attribute of the will. It is the subject who decides to comply with or not with the norms. * They are Uncoercible, because their fulfillment must be carried out spontaneously. - If the act of the individual is obligatory, the individual will have no merit, and if it is forbidden, it will be impossible to declare him responsible. * They are Autonomous, because every morally valuable behavior must represent the fulfillment of a maxim that the subject has set for himself. Recaséns Siches and Del Vecchio agree that the central characteristic of moral norms "is the field of intentions, the sphere of consciousness, or the inward aspect of acting... ### 2.5.2 Religious Norms - Religious norms are supposed to be elaborated and imposed by the divinity, and they try to regulate the behavior of the human being towards his god(s), towards himself, and towards his fellow men; we find them in the sacred books of the corresponding religion, such as the Bible, the Quran, the Talmud, among others. - Therefore, these norms, in a broad sense, refer to religion; in a strict sense, they are those that govern the organization and operation of any religious association. - It is a higher sanction, the one that believers attribute to their own moral and legal duties, a sanction that is represented on earth by the priests of the church to which each belongs. - Religious norms, by their nature, participate in a large part of the features of moral norms, since the content of both has as its purpose the inner aspects of individuals. - These norms are also internal and help the individual to draw closer to God and thus achieve eternal life. - Religious thought and its rules, referring specifically to Christianity, have had a profound influence on law. - A large number of its precepts were incorporated into Roman law from the Institutes of Justinian. - Currently, Western law contains a substantial part of Canon Law, especially in the field of the family. ### 2.5.3 Social Norms - Social norms, also known as social etiquette or conventions, aim to make coexistence more bearable. - They refer to civility, decorum, courtesy, dress, etc; sometimes they are codified in manuals of civility, codes of honor, rules of etiquette, etc. - These norms impose a particular conduct aimed at making coexistence more pleasant, based on principles of good education, decorum, protocol, or courtesy. - These norms or conventions empower authorities to ensure their fulfillment, to specify individualized mandates, and to impose sanctions: for example, parental authority in the family. ### 2.5.4 Legal Norms - Legal norms aim to regulate conduct for the benefit of others, to organize social life, to prevent conflicts, and to provide a basis for their solution through different decrees, laws, codes, regulations, jurisprudence, agreements, etc. - These norms are rules of coexistence that govern the behavior of individuals among themselves, in order to achieve a just and orderly society. - Due to their bilateral nature, legal norms establish relationships between two different persons: the obligated and the active. - The modalities in the exercise of rights and in the fulfillment of obligations vary in each case. - Legal norms are external because they demand a fundamentally external conduct. - However, in many cases they attribute legal consequences to the intimate aspects of individual behavior. - Legal norms are coercive because, if they are not voluntarily complied with by the obliged, the creditor may request the State to enforce them, even using force. ## 2.6 Classification of Norms ### Unilateral - They involve the existence of a single subject entrusted with enforcing the obligations contained in the norm. - For example, a power of attorney, a contract, or a convention. ### Bilateral - They involve the existence of a right that stems from an obligation, or vice versa. - Therefore, there is a subject authorized to demand fulfillment of the obligation. - For example, in a purchase and sale contract, the seller has the obligation to deliver the goods and the buyer to pay for it. ### Internal - The individual's action is driven by his intention to comply with a particular norm. - In other words, regardless of the material result of the conduct, the person acts according to his conscience of what he considers good or bad. - For example, marrying twice, having a relationship with two different people, where the individual's actions do not matter to him to be divorced from the first marriage since, according to his criterion, it was good to have done so, but this is an obstacle that the Civil Code stipulates. ### External - They do not pay attention to the subject's intention, but rather to the material result of the conduct. - For example, while someone dies, this type of norm does not care whether the person killed another person who was terminally ill and suffered a lot, and out of mercy they considered it necessary to kill him. - Nonetheless the homicide was committed as a result of a decision, based on moral principles; the homicide is evident, and the act has been committed. - Or, in the case of negligent homicide, there is no intention on the part of the person who committed the act; - however, the act was committed, and the punishment that entails the power of the State. ### Incoercible - They do not require enforcement by the State, but rather are based on the individual's own will. - For example, if someone who is very religious decides not to go to mass, no one can force them to do so, and they cannot be punished for their failure to comply. ### Coercible - They require enforcement by the State, even against the individual's will. - For example, if a parent refuses to give food to their minor children, the law sanctions them and orders them to fulfill that obligation. ### Autonomous - They are created by the conscience of the individual who will have to obey them, in order to regulate their own conduct, for example: bathing every day, going to work. ### Heteronomous - They are the rules established by a person who is separate from the individual to whom the norm is directed, for example, the traffic rules in a city are established by people external to the person who drives their car. ## 2.7 The Pyramid Standard of Hans Kelsen - The jurist Hans Kelsen was a philosopher and legal theorist who studied justice and politics. - His thought was based on the idea that every law is a standard, i.e., that it must be complied with. - Each law may stem from another that gives it validity, until reaching the principle of final validity, which is the fundamental norm. - Kelsen created a pyramid to represent legal norms that symbolizes the concept of a hierarchical legal system. - He argues that the system is simply the way in which a set of legal norms relate within a system, based on the principle of legal hierarchy. - In other words, the standards that make up a legal system. - The Kelsenian pyramid graphically represents the idea of a hierarchical legal system. - According to Kelsen, the system is not a different matter than the way in which a set of legal norms are related, and the main way they relate within a system is based on the principle of hierarchy. - In other words, the norms that make up a legal system relate to each other according to the principle of hierarchy. - Imagine a tiered pyramid: at the apex of the pyramid would be the Constitution of a State, on the tier immediately below it would be the laws, on the tier immediately below them would be the regulations, and so on until reaching the bottom of the pyramid, which is made up of sentences (individual legal norms). - In relation to Kelsen's theory, a legal system is necessary in our country and in any other country so that the State can enforce legal normas in an appropriate manner as a means of social pressure. - Therefore, in the previous figure, the levels of legal standards are listed so that students can understand better, as it is crucial to know what order they are in.