Foundations of Law and Its Role in Social Structure
Law and Social Structure
Defining Law
Law is the set of principles, precepts, and rules governing human relationships in civil society. Non-compliance on the part of individuals means that enforcement can be compelled by force.
More formally, law can be defined as the set of binding laws, regulations, and permanent resolutions created by the state for the preservation of social order. This definition focuses on the proper procedure carried out for their creation, regardless of whether the content is deemed morally right or wrong.
According to Ferdinand Hinostroza in his book Manual of Obligations, law is a set of rules and precepts of conduct whose existence and effect are essential to the soundness and harmony of social relations.
Key Definitions of Law by Jurists
Different schools of thought define law based on their philosophical perspectives:
- Immanuel Kant (in Manual of Morals): States that law is the set of conditions under which the will of one person can be reconciled with the will of another, as a universal law of freedom.
- Marx and Engels (in Communist Manifesto, 1842): Assert that law is the will of the ruling class enacted into law.
- John Austin (in The Object of Jurisprudence): Defines law as orders backed by threats, given by a sovereign and obeyed by subjects.
Essential Characteristics of Law
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Bilateralism: This quality gives law its mandatory or obligatory nature.
- Imperative: It imposes a duty to conduct (e.g., paying taxes to the state).
- Attributive: It empowers a person, different from the one required, to enforce its mandates.
- Heteronomy (External): The individual may disagree with the content of the rule, but this disagreement is irrelevant to the law’s validity or enforcement.
- Coercibility: This is the legitimacy of using socially organized force to enforce the law. Socially organized force is typically exercised by law enforcement agencies and courts of justice, as defined in the constitution.
Fundamental Distinctions in Law
- Objective Law: This is the set of rules and laws that, on one hand, grant rights or powers to citizens, and on the other, impose mandatory duties in case of default. It regulates human conduct, governing the peaceful coexistence and social integration of people who live and interact in a determined society.
- Subjective Law: This is the power or right of action held by an individual (the subject) to seek respect for their rights, especially when those rights have been infringed upon illegally by any state institution, natural person, or legal entity.
Etymology and Multifaceted Role of Law
The word for law in many languages (such as derecho or droit) comes from the Latin word directum, which means “direction,” “directed,” or “what is right.”
Law is a complex reality that has many facets, depending on the perspective:
- From the Legislature’s View: It is a way of organizing social life.
- From the Citizen’s Perspective: It is an outline of proper conduct; those who do not comply are exposed to suffer consequences in court.
- In the Judicial Field: It is a set of rules that serve to resolve disputes.
- For the Lawyer and Society: Law governs collective life, institutionalizes the use of force, allocates goods and services to individuals and the community, and organizes and distributes political power.
- From a Political Point of View: Law is the necessary tool for carrying out great social transformations.