UNIDAD 4. CLASIFICACIÓN DEL DERECHO PDF

# UNIDAD 4. CLASIFICACIÓN DEL DERECHO ## 4.1 CLASIFICACIÓN DE LAS FUENTES DEL DERECHO - It is vital to understand the sources of the Law, the procedure for the creation of each of them, their most important characteristics and the use of the same for the application that the law determines in conc...

# UNIDAD 4. CLASIFICACIÓN DEL DERECHO ## 4.1 CLASIFICACIÓN DE LAS FUENTES DEL DERECHO - It is vital to understand the sources of the Law, the procedure for the creation of each of them, their most important characteristics and the use of the same for the application that the law determines in concrete cases. - The word source comes from the Latin Font, Fons, which means "place where water springs from the earth" and applying this term to the legal study of the norm, it is worth asking the following question: Where does Law come from?, that is, what are the acts, ## 4.1.1 Fuentes reales - They are the events or situations that occur in a social group and that at a given time may determine the content of the legal norm, since Law must adapt to the reality of the people where it arises, in such a way that the legal system is adequate to the social reality, to the economic and cultural situation of a people, in such a way that its existence is useful and really applicable. - For example, the content of Mexican labor law was determined, to a large extent, by the conflicts of workers in the stage of the War of Independence, the stage of the Reform and of the Mexican Revolution, these circumstances could be considered as the real source of labor law. - As you can see in this explanation, Law arose through this real source, in other words, it was born as a consequence of the events or experiences of humans in society. ## 4.1.2 Fuentes históricas - Historical sources are documents that contain normative provisions from past eras. - All those ancient documents that contain legal provisions that in some cases serve as inspiration, model or simple guide to the legislator to create new legal norms are considered historical sources. - An example of these historical sources, we can point to the Mexican Revolution, one of its many objectives was to protect the land tenure of peasants, and from these precedents was how the Agrarian Law was decreed. ## 4.1.3 Fuentes formales - They are the procedures through which the creation of the legal norm was reached, these sources are the following: - Legislation. - Custom. - Jurisprudence. - Doctrine. - General principles of law. - Formal sources can be current or have been in the past. In Mexico, the law is considered the most important formal source of law. The federal legislative process is provided for in Articles 71 and 72 of the Constitution and consists of six stages. ## 4.1.4 Los órganos facultados - A very important concept in the field of law is that of jurisprudence. - This is a concept that can sometimes cause confusion because it has two main meanings that are very different, on the one hand, it is the explanation of a positive legal order and on the other hand, it designates the set of principles, thoughts or doctrines contained in the decisions of the courts or tribunals authorized for this purpose. - According to the Mexican constitutional order, the organs of the State that are legally empowered to interpret the Constitution and create jurisprudence are: - The Full Court of the Supreme Court of Justice of the Nation. - The Chambers of the Supreme Court of Justice of the Nation. - Collegiate Circuit Courts. ## 4.1.5 La jurisprudencia como fuente del derecho - Jurisprudence is one of the sources of law, as the function of the courts will no longer be solely one of interpretation, but of integration of the legal order, jurisprudence acquires greater relevance, since without it, the legal order is incomplete. Law and jurisprudence are the two main formal sources of law. ## 4.1.6 La costumbre como fuente formal del derecho - Custom gives rise to the so-called customary law, known as Jus Moribus Constitutum. According to jurist and philosopher Eduardo García Máynez, this constitutes a practice implanted in a community and considered by it as legally binding. Customary law has two characteristics: - It is made up of a set of social rules derived from a more or less long use. - These rules become positive law when the individuals who practice them recognize their binding nature, as if it were a law. - It is important to mention that there are three forms of custom in customary law: - Delegated: This occurs when, by means of a non-written legal norm, a certain body is authorized to create written law. Customary law is then superordinate to law. - Delegated: Customary law is spoken of in those cases in which the law refers to custom for the resolution of certain controversies. In such a case, custom is subordinate to written law. - Delegated customary cannot be contrary to the precepts of the law. The delegation established by the legislator is not superfluous or lacks importance, as is sometimes claimed. They serve, at least, to dispel any doubt about the validity of certain customs and popular uses. - Derogatory: Custom sometimes develops in a sense opposite to that of the legal texts. In the case of derogatory custom. ## 4.1.7 La costumbre en el derecho mexicano - Custom plays a secondary role in our law. It is only legally binding when the law gives it that character, therefore, it is not an immediate source, but a mediating or supplementary source of the positive order. - In Mexican law, custom is a source of law that is derived from the facts that are repeated in a specific territory over time. It is a legal norm that regulates the relationships between the parties and attributes rights and duties to the participants. Custom is a spontaneous and popular way of creating law, and it is considered natural and inevitable to determine how society behaves. - Custom can be the conduct of the public authorities or of individuals, or both, with the conviction of complying with the Constitution. It can also be a repetition of uniform acts that form a tradition with legal relevance. The Roman jurist Ulpian described custom as the tacit consent of the people, ingrained over a long period of time. Custom has been implemented in indigenous communities for centuries and has proven its flexibility, coherence and capacity to coexist with the modern State. ## 4.1.8 Principios generales del derecho - According to Mario I. Álvarez Ledesma: - General principles of law have been defined as a set of guiding criteria inserted into any legal system, whose purpose is multiple: on the one hand, to constitute values or paradigms that give ultimate meaning (should be ideal) to law and immediate meaning (should be real) to the legal norms of a system. On the other hand, they aim to make up for the ambiguities and insufficiencies of the law or other formal sources. - In Mexican law it is so by express provision of the law, since the Magna Carta states it textually in the last paragraph of its Article 14: ## 4.1.9 La doctrina - It is made up of the set of opinions of legal scholars, which are sometimes considered by legislators when creating laws and by judges when interpreting them. Doctrine is a great support nowadays, because the legislator must study and analyze the rapid evolution of law and the emergence or development of various disciplines, therefore, doctrine will benefit in formulating bills or having more and better elements of information for its discussion. As for the judge, it will serve to evaluate the evidence and issue his sentence. - Doctrine can have different dimensions, such as political, legal, economic, religious, philosophical, scientific, social or military ideology. For example, religious doctrine is a set of knowledge, rites and procedures that a church promotes among its followers. - In the context of law, doctrine is a formal source that consists of the written opinions of legal scholars on the validity of legal rules. Legal doctrine arises mainly from universities, which study current law and interpret it within the science of law. Although legal doctrine has no binding force and is not recognized as an official source of law in most legal systems, it can influence the opinion of those who create new laws or apply existing ones. ## 4.1.10 Tratados Internacionales - International treaties are part of the formal sources, as Article 133 of the Constitution provides for, and are also considered in the hierarchical normative order of Mexican law. - An international treaty is a written agreement between States, or between States and other entities, which is governed by International Law. Treaties can be a single instrument or consist of two or more related instruments.