Human Behavior and Legal Standards: Foundations
Unit I: Fundamentals of Law and Human Behavior Standards
- Freedom: The human person, as being endowed with intellect and will, is not intrinsically bound to act in a certain way but has the power to choose the most appropriate path for attaining their improvement.
Human freedom is the result of one’s rational nature because only the individual is master of their actions and can choose.
The dignity of the person requires that they act as a free and conscious choice, moved and personally induced from within, not under a blind impulse or merely external coercion.
It is necessary to distinguish between physical freedom and moral freedom. The first covers both good and bad, the lawful and unlawful. The second is housed within the rational order and agrees to the option of choosing between the various media, one that is most appropriate to achieve the good of mankind. Of the two, moral freedom is essential to man.
Moral freedom should apply to the result of an order, that is, the performance of its individual and social destinies.
However, man’s moral freedom may be restricted for reasons of physical, cultural, and social nature that influence human actions.
- Society: Man is not a closed whole, isolated in itself, but is by nature inclined to community life, this because of the limitations that are inherent and communication skills possessing as a person under which needs the other for the achievement and overall development in the spiritual, intellectual, and physical.
Society, therefore, provides people with the conditions of existence and development they need to reach their full potential.
The aim is to integrate society, increasing gradually and predispose people to the place of transcendent purpose, which is located beyond the social order. Therefore, society is ultimately of instrumental value because its destination is to serve the people.
- Common Good: The purpose of society is the common good, which is distinct from individual or each one (c/u) of its components (individuals, municipalities, foundations, etc.).
The common good “is the set of spiritual, cultural, and material conditions necessary for society to conduct its own end and establish a just order to facilitate people that integrates the company to achieve its transcendent end.
The common good is based on obligations of justice, and this defines and specifies the common good, for them, the common good is an order of justice.
The common good is the human well-being of society and of each one (c/u) of the persons composing it, is of a material and spiritual at the same time (T º).
- Justice: The absolute value that determines the equality that should exist in human relationships, and it is expressed by Law.
Justice, therefore, is the supreme value of Law and Law, in turn, does justice. As St. Thomas says, Law is the object of justice.
- Right: The maintenance and development of community life demands that the conduct of associated normatively regulate the orderly, safe, and peaceful in order to make an order of justice, because, otherwise, would become detrimental coexistence and even more impossible.
This external regulation of the conduct of men, aimed at establishing a just ordering of human society, is what we call “Law.”
Definition of Law: It is defined as “a set of rules governing the social behavior of man.”
From this, it is clear that the social behavior of man is not only governed by the law itself, but also by so-called “rules of conduct,” within which are the moral standards, religious, etc.
Types of Laws
1. Natural Physical Laws and Scientific Laws: This refers to natural physical law, constant and uniform behavior of certain phenomena of physical nature, e.g., the law of gravity, the scientific law, is the cognitive view expressed by one student of natural phenomena, to describe or explain the observed relationship between certain facts of nature because the link between them is called “principle of causality.”
The logical structure of scientific law is reducible to the following hypothetical formula: “if A, B is” (if a metal is heated to a certain temperature, it expands).
I. The Standards of Conduct.
The standard of conduct is an ordering of human conduct, according to a criterion of value, whose failure brings with it a penalty.
The standard of conduct lies not with the physical being, but on man’s behavior. Notes conduct should be.
From the logical point of view the structure can be reduced to the following hypothetical formula: “if A is, must be P (P is penalty). E.g. if I buy bread, I must pay.
Theories of the Standards of Conduct
From the point of view, it is investigating the elements of any standard, these are:
The subject or content (human actions).
Item form (Imperata).
The end (value).
The penalty (the penalty)
Matter or Content: Man performs certain acts which do not correspond to human actions (voluntary), hence a classification that arises where the acts are merely natural that those from vegetative and sensitive functions of man, e.g., breathing, sleep, etc.
There are also acts of man are finding that running private reason, e.g., dementia.
There are also so-called violent acts that are offered by an external force which transcends and supersedes the will of the subject.
The human act as such is man-made voluntarily and knowingly, that is, knowing and wanting a particular purpose. An act done with knowledge and free will is an act accordingly, the author answers it.
From the above times past, it appears that freedom is essential in the human quality of the act.
There are different ways of understanding freedom for some is synonymous with spontaneity, for others it is the lack of dependence and finally, and in turn more accurate, is the power of self-determined according to free will or discretion.
Elements of Human Events
The elements of human acts are the intellect and will, elements cognitive and volitional elements, any of the two missing manifest a lack of freedom and therefore the act ceases to be human.
But although it noted there are certain factors that may affect some of these elements, thereby preventing the free character of the whole act, so for example: the cognitive element may be affected by the error, ignorance and neglect also may be affected and educational status, socioeconomic or age. The element of will be affected by fear, habit or passion.
The human act can be from the internal point of view of its manifestation, a desire, for example: killing someone, or the act can express itself, when actually carried out or externalized my inner desire.
Classification of Human Events
- Human actions and human actions externalized internal:
This distinction is important in relation to the liability rules of the subject, as in the case of internal measures, these are only important for morale, but instead the external acts of concern not only the moral but also the Law.
- According to the way it expresses the will:
Express acts: are those in which the will is expressed or expressed in unequivocal terms.
Tacit Act: that is the one that emerges from the act itself.
Alleged acts are those in which the will is presumed from the act any of the information.
- From the point of view of the affect of the act: it can be:
Direct or one effect: e.g., Shoot: injure or kill.
Indirect or double effect: those in which to get the effect intended by its author, there is necessarily another undesirable effect for him and that is generally harmful, e.g., Wanting to frighten, but in doing so killed him.
Item Form: “Imperata” the standard becomes mandatory means that establishing a duty. Imperata from the Latin “imperium”, which means power or power.
This term has become synonymous with the term obligation, therefore imperative to be the rule means that it will be mandatory.
Imperata or mandatory, depending on your preference, involves two elements:
A title to issue a standard part of who creates it;
Faculty of free will of the addressee of the norm
In doctrine states that the rule will be imperative if the person has power or authority dictates, that is, treating the origin of the rule. Instead, it will be mandatory if you set a duty irrespective of their origin.
Purpose: “or protection of certain values.”
By creating a standard is protected by means of them certain values, e.g., life.
Protects life by prohibiting certain conduct that is embodied in the punishment for committing a murder, or for performing an abortion, etc. This is pursued there are certain purposes which is seen as preferable or valuable.
Punishment or penalty “means of restoring the shattered order.”
By the penalty or punishment is to dissuade the recipient of the rule breach, because otherwise its situation will become more burdensome as to whom narrowing the rules. The purpose of the penalty points to restore the shattered order.
The penalty and to vary depending on the type of rule. Thus, for example, the penalty for failing to meet a standard of social strata, is the criticism of society. However the adoption of a standard may vary from implementation of a fine up to the implementation of a custodial sentence.
Standards of Conduct Classes
- Religious rules: Religion can be defined as a system of beliefs and practices in relation to God.
Religious rule is that prescription of human behavior whose ultimate purpose is to enable the sanctity of man. In other words, this rule raises the demands that a man must meet in order to please God and thus attain the external bliss.
This type of rules in addition to the elements common to every rule, has some special features that we summarize as follows:
Purpose of religious rule: as mentioned above, look for holiness, that is, the subject is getting closer to God and eternal life.
The origin of the religious norm: these have their genesis in the reason of God, who imposes the man. They therefore, heteronomous character.
The religious rules have a scope of absolute force, as intended to have a temporary character and universal, this means, governed always and everywhere.
Religious norms have a unilateral character, since they impose duties, but not adequate for the enforcement of those duties.’s Performance of religion can not be claimed by anyone.
The rules have a distinctly religious internal to religion because what matters is the intention with which the subject performs the act. This goes, in order to reach holiness which is met outside by certain rituals, it is essential that the individual in good conscience accept it.
Religious norms are uncontrollable, that is, do not support the application of physical force in case of default.
The type of sanctions is more internal and supernatural pain or sorrow for having offended God, and consequently, the loss of the ability to attain holiness
Proceeds from these rules arose Canon Law can be defined as a corporate Law governing structure and powers of the Catholic Church.
- Morales rules: Morality can be defined as a system of rules whose purpose is to achieve goodness of the acting subject.
Several questions about morality. 1 whether there is objective and transcendent moral order to the subject, or conversely, to qualify an act good or bad depends entirely on the qualifying subject.
In 2nd term flows have led some to try to answer the various questions that arise in relation to this issue.
For the inherent moral quality of an act depends on the acting subject, so the act would be good if he pleases, he likes, it is useful or are interested in the field beyond the individual, society in which the subject are uncertain what you value and determines the moral quality of an act, depending on its character, custom, race, etc.
For the transcendent: The moral quality of an act depends ultimately not the subject or society, but a body that is outside the individual or social fluctuations and that is its ontological structure or nature of the things, this is in the being of God. argue that history shows that there are certain actions that have always understood as good and others as bad, regardless of the time and place.
For logical empiricism: ethical judgments express emotions or feelings, not necessarily corresponding to the subject. The fundamentals of ethical judgments are irrational because there is no possibility to confirm its truth.
For Kant describe a situation of moral or immoral is closely related to the subject acted in good or bad intention.
For determining the Thomistic doctrine of a moral or immoral act should consider three factors:
The purpose of the act.
The intention of the doer.
The fact that the act takes place.
The act has some intrinsic purpose to specify and distinguish it from other acts. Thus, the act of killing is specified by the deprivation of life of a being, such is its intrinsic purpose or objective aspect. A man who kills does so at his time for some reasons or intentions, such is the subjective or intentional act. And finally, commit the act in a certain place at a certain time, certain media, etc. these are the circumstances.
Synthesis of Thomistic Thought
An act is morally good or bad depending on which purpose he made the subject.
A good act whose subject is impaired by the bad intention of the subject.
An evil act whose subject can not be transformed into good by the good intention with which the individual user.
The circumstances do not determine the morality of a particular act, only allows editing.
For an action is morally good must be good object of the act and the end of the subject.
If the purpose of the subject is good, but the purpose of the act is wrong, the action is bad.
If your object and purpose is bad, so is action, but have circumstances that show as good.
Characteristics of Moral Standards
- It is personal: a prescribed duty, but no power to require anyone other fulfilling its duty.
- Are interior and exterior: its scope begins in the consciousness that is where, incidentally, begins the human act. This does not mean that the moral standard does not prescribe an external behavior, however, dealing with the intention of subject, requires that this be manifested in a particular act.
- It is heteronomous in origin: the rule is not created by the will of the subject.
- It is autonomous in its performance: since the subject decides whether to comply or not.
- It is irresistible: this means that there is likely to be enforceable by physical force.
- Social norms are prescriptions of general conduct adopted by the social group by custom.
The concept is clear that they show a respect for tradition. They are more than mere use or habits, as people respect them because they think that this must be imported.
Parallel between Moral and social uses, similarities and differences
- Both organizations have no coercive regulations designed to overcome the resistance of bound.
- in both cases their sanctions tend not forced to comply with the obligation but the punishment of the offender.
- The moral obligation considers its individuality uses as a subject group interchangeably.
- Morality requires predominantly conduct internal applications, foreign conduct.
- The moral is autonomous, the uses are heteronomous.
Parallel between Law and Social Stratum Standards, similarities and differences
- Both standards have a social character, external and heteronomous.
- The difference is not in content but in the nature of the sanctions and in particular the targeting of these. Thus, the enactment of the rules of social strata tend to punishment or censure of the offender and not the forced compliance. The Law, upside down, pursued the fulfillment of the obligation and is forced to, either directly or equivalent, and secondarily a punishment is imposed on the offender.
General Characteristics of the Standards of Social Stratum
They own life in society.
They are outside, what matters in the event compliance is outside, the phone is irrelevant to the subject.
Are unilateral: regulate conduct against another, but has no power to enforce this behavior. That is, down only duties.
The penalty for breach is social disapproval, which is exerted by the group
The penalty for infringing use is directed to the offender, does not pursue enforcement of the obligation imposed by the rule. The penalty is a psychological nature.
Are relative and changing: they have the same value for all times and places.
- Legal Norms: they can be defined from the point of view of substance and one formal.
From the perspective substantial “is a sound management and social behavior coercible valued according to a criterion of justice.”
From the formal perspective “is a regulation of human behavior are imperative, external, bilateral, and coercible heteronomous.”
Legal Standard Features
Imperata: Imperata is how all the rules. The characteristic of the normative is precisely the mandatory or compulsory, to distinguish the rule of a board, an invitation, suggestion, etc. The rules are mandatory, provides homework.
To analyze this point we must distinguish at least two ways of understanding the mandatory, one noun (mandate), and another adjective (procedures for certain acts).
As a noun meaning “mandate or order” that will give one for that act or refrain from acting in a certain way.
As an adjective Imperata is a quality that has certain requirements, is to encourage the subject to behave in a certain way. That is, a provision is mandatory when involves the demand or claim must be fulfilled.
According to the standards can be classified as:
Positive rules: those who command to execute an action. Example: you have to pay taxes.
Prohibitory rule: those who rule to refrain from an action in any circumstances. Eg forbidden to pass.
Permissive rules: those that authorize or empower perform an action. Eg turn on red permitted and caution.
Exteriority is that the rule of law in general, requires only external or objective adequacy as prescribed by it. Not interested in the intent or motivation with which the subject performs the action.
However it has been established that the legal standards under certain circumstances if you are interested in the intention or motivation, e.g., Interested in criminal matters when a person acts with intent or by mistake. The intent is understood as the positive intention of causing harm the person or property of another. For fault means negligence, carelessness or recklessness in the commission of an unlawful act.
Bilateral (bilateral) is that compared to the standard obligated authorizing or empowering another person to demand that the line of duty. That is, given simultaneously imposes duties and powers.
- Coercible: the enforceability of the Law is the legitimate possibility of applying physical force in the event of non-enforceability is synonymous with coercion. Not to be confused with the penalty, because every rule brings with it a penalty for failure to comply. But when it comes to standards, this sanction can be applied by force.
It is possible to distinguish three kinds of constraint or coercion:
Coercion: is one in which the rule is simply herself and get an effect without any will contest, even against the wishes competitors. For example, The putative Law, absolute nullity.
Psychological Coercion: is to make the situation more burdensome than compliance failure, through punitive measures or sanctions. In other words, is to intimidate the subject, since it violates a standard and comes a corresponding penalty or punishment.
Physical Coercion: is a replacement mechanism. Indeed, the first must be replaced, but rebellious, for a second bound, but reliable. For example, If the debtor fails to pay the debt it replaced the judge, the police, judicial officer who, through agreed action because it diverted him and pass it to the creditor.
Heteronymous: because they are given by a will different from the obligor.
The language of Law
As the Law regulates human behavior, there must be a communication between the regulated and the legislature. For this very reason is that the Law uses a natural language so that this is understood by everyone.
Natural language means the combination of signs and symbols that are progressively adopting societies and are called “languages.”
Structure of the Standard Material
- The ratio: is the link between two subjects of Law born of a certain event condition laid down in Law, whereby one of them must meet a certain benefit for each other, who has the power corresponding to demand.
Elements of the relationship are:
Done conditioning.
The subjects of Law.
The link.
The purpose of the relationship.
The provision
Done factor: is the fact that the relationship gives rise to and that is the concrete realization of the normative assumption.
Rating:
Simple: when is a single fact. For instance, “He who kills another”, composed by the mere fact of “killing.”
Complex: one that is composed of two or more events that trigger the link. For example, “Public servant who malversare funds”, formed by the quality of “public official” on the one hand, and on the other ’embezzlement’.
Acts of nature are those served by the natural physical law. For example, A person’s birth, death, over time, etc.
Facts man are those that stem from acts performed by men and that in turn are divided into voluntary and involuntary. Volunteers are those made knowingly and voluntarily, and these in turn are divided into those made with the intent to produce an effect and made without intent to produce an effect. If they are lawful and volunteers lead the acts. e.g., sale. The unintentional are those who act deprived part or all of your will. For example, insane, drug addicts, etc.
There are acts intended to produce no effect, which is legal if the quasi-result, and if they are illegal, and made with intent lead to crime and if they are made to blame the tort.
Subjects Law: the notion of Law opposes the object as the subject of Law refers to people, but instead when it comes to Law, we refer to things or property.
First subject of Law can be defined as “the owner of Law and obligations” in the background as the recipient of the standard. Kelsen defined as “the center of imputation rules.”
In our system subjects include:
- Individuals or individual: according to art. 55 CC “are people all individuals of the human species, whatever their age, sex, race or status.”
Principle of Existence of the natural person
The individual has two types of existence, natural or legal. The natural existence begins at conception, i.e. the union of male and female gametes. The legal existence begins with the birth (Article 74 of CC). For the birth of origin to the legal existence of the person must meet three requirements:
That the creature is separated from the womb.
That the separation is complete.
To survive even a moment of separation.
If the baby dies in the womb, before or during the separation, or do not survive even a moment it shall be deemed that never existed. In relation to this requirement comparative doctrine has developed two theories:
Theory of financial viability, according to this, to be a person is necessary that the child is born with the ability to continue living.
Vitality theory: according to this person for the vast baby was born alive.
Chilean law recognizes and protects the natural period of existence. It is thus that art. 19 CPR No. 1 states that “protects the life of the unborn”, which contains a similar provision of art. CC 55. This recognition is reflected, inter alia, the following rules:
The judge may ex officio or on application, take all measures it deems appropriate to protect the lives and health of the creature found in the womb.
Penalties to be applied to pregnant women who endanger the life or health of the fetus, will be postponed until after the birth occurred.
The CP punishes the crime of abortion.
Within the labor Law and social security gives pregnant women the benefit of pre and post natal.
In the CC (Art. 77) provides that to be accorded to a child who is in the womb will remain on hold while the birth took place, and if this gives rise to the legal existence is deemed to have entered the enjoyment of them, not from the date of birth, but from the date you were granted.
End of Natural Existence
The purpose of the existence of both natural and legal person’s death is natural, without prejudice to the law extended to certain effects natural personality of the deceased in his successors or heirs.
Death may be defined as the irreversible cessation of life phenomena. The exact determination corresponds to an auxiliary discipline of Law, which is called forensic medicine.
The CC distinguishes two types of deaths:
The real death: is one whose occurrence has. Today it is found generally through the practice of three EEG, which should be flat. In addition to test you have to use the means set out in the Health Code and special laws.
presumption of death: it is declared by a court ruling that for a person who has disappeared and it is unknown whether live or not, and meets the requirements prescribed by law. These are that the person is gone, that has a lapse of time, the law fixed the date of the latest news of the missing and to meet other legal requirements, such as research, publications, etc.
Death, whether natural or perceived, produces the circumstances ff:
It leads to opening of the succession upon death, which is the mode of acquiring ownership of the inheritance or share it by the heirs.
It extinguishes criminal liability of the deceased.
The liability to the heirs, who are seen as followers of the personality of the deceased. His liability is unlimited debts unless they accept the inheritance with the benefit of inventory. Case in which only respond to the value of property received by inheritance.
End some acts, such as marriage and mandate.
- People: According to Art. CC 545 people are called to any fictitious entity capable of exerting civilian and contract obligations, and to be represented and out of court.
Elements of Existence of Person
- Association of persons.
- Common heritage.
- Lawful common purpose.
- Common will.
- Organization to an end.
- Recognition of the authority.
Rating:
People of public Law: this kind of people is not defined in the CC, which is only limited to a list of exemplary manner. Among those of public Law we can say: the E º or nation, the Treasury, churches, municipalities and institutions that are receiving funding from the national treasury.
In doctrine has developed a set of criteria to distinguish people of public Law:
Depending on the source will be public Law if they were created by law.
According to Law will be public if they have a collective purpose or public interest.
According to the power of empire, will be public Law if they have the power to issue rules requiring 3 ° s and not just to their partners.
According to character shall have a second public if a public service.
People s private Law: These are divided, according to their purposes, persons of private Law for-profit and nonprofit.
- People of private Law for-profit organizations: is called corporate and Section 2053 of the CC defined as a contract in which two or more persons are obliged to put something in common with a view to divide among themselves the benefits that it comes from.
Rating:
According to its purpose:
Civil: those created by professionals for the provision of services and trades.
Commercial: those aimed at the achievement of one or more acts of trade.
Depending on the degree of responsibility:
General partnership: those in which partners respond with all its assets without limit.
Limited liability: those in which partners respond to the amount of their contributions or the amount stipulated in the articles of incorporation.
Encomandita Society: has two kinds of partners, the silent partner that provides capital and respond to the amount of their contributions, and the managing partner who is or is someone who brings to his work and manages the business.
Corporations: are those in which social capital is divided into shares and the partners are liable only to the amount of the respective shares.
People of nonprofit private Law: it distinguishes them corporations and foundations.
Corporations are a group of people who pursue a purpose which is in lawful, non-profit.
The foundations are made up of a heritage, intended by its founder to achieve a lawful purpose, non-profit.
Principle of Existence of People
º D corporations are born in public under any law (persons).
The private Law corporations for profit through a covenant or charter.
People of private nonprofit born under a Presidential Decree which grants personality.
End of Existence of Persons
People s ending public by law.
People private for-profit end up the grounds set forth in the charter or for legal reasons.
People private non-profit end up canceling Decree personality.
Continuation of the Elements of the Relationship (th s Standards)
- The Link: the link between the subject of th is the effect of a standard; precisely, under the standard th is that the interpersonal relationship then turns into a relationship of such th and differs, therefore, of a social, religious or moral.
El Deber: can be defined as the restriction of freedom suffered by the taxpayer in the ratio th as a result of the power conferred by th standard to another individual to enforce a particular provision.
Subjective: the power to enforce a duty under the rule.
The object of the relationship: “providing” the service can be defined as the appropriate action to another. There may be three cases:
Dar: is to transfer the domain Law. The provision of the means to deliver.
Make: means the execution of an action is not taken, for example: painting a picture, make a jewel, etc.
Do not do: one that involves abstention or omission.
The purpose of the relationship th is the benefit. The purpose of the provision, in turn, can deal with things that are due, facts that must be met and actions that should not be running.
Ordering Theory
The ordering can be defined as the unitary whole, hierarchically structured, dynamic, coherent and full of rules governing s in a given territory and for a time.
The sources of order:
Source: it is all done creator or s standards, in our system distinguishes:
Formal sources.
The material sources.
Formal Sources: are the ways through which expresses the Law, i.e. cause the appearance. of the law.
The source materials are those factors that directly and indirectly influence the creation of the rules, for example: religion, historical circumstances, economic, political, etc.
In our D is especially important º formal sources, which can be analyzed from two points of view:
From the point of view of the court has the power to create rules s, which our laws are grouped into powers.
From the point of view of formal source itself.
Powers
- Constituent power: the system is one that recognizes J º to create, modify and interpret the Constitution truly E º.
The body in which lies the constituent power is the people or nation, this is called “primary power” and also those bodies which the constitution provides, this is called “power derived. That is expressed through referendums, elections and other mechanisms. The other, however through the bodies and procedures that the constitution provides. The power lies in deriving the executive and legislative power.
Formal sources giving rise to the constituent power are:
The Constitution of the Republic.
The laws of constitutional status.
- Legislative power: the power is the order J º gives certain organs to create, modify, repeal and authentically interpreting the laws.
The legislative power lies in two bodies: the President of the Republic and the National Congress.
Formal sources emanating from this authority are:
- The law as such (constitutional law, law and ordinary law quorum).
- The hierarchy of law decrees (decrees with the force law, decree law).
- International treaties.
- Regulatory Powers: the system is one that recognizes the J th President of the Republic and other authorities to create standards J ª s (general or specific) in fulfillment of the functions that the constitution and the law gives them.
This power can be:
- Autonomous: it is one that is exercised on matters that are not specific to the legal domain.
- Performance: is one that is exerted to implement the laws and ensure better compliance.
The regulatory authority is primarily in the President of the Republic.
Formal sources emanating from this authority are:
- Decrees.
- Regulations.
- Resolutions.
- Instructions and
- Ordinances.
- Judicial power: public authority is that the system J º gives the courts of justice to settle disputes J ª relevance through a process. Doctrine calls these formal sources with the common name of jurisprudence.
Besides the courts, there are other bodies that can issue decisions, eg: the general director of IBS, the director general of customs, comptroller general of the Republic, and others.
Formal sources emanating from this authority are:
- Judgments.
- Social power: the power standards development J ª s which lies in every social group instinctively or part of it. The formal source of which is the source of this power is called “J ª usual.”
- Normative power of the individuals: the system is that J º recognizes individuals to freely create J ª s standards within the limits it establishes. Formal sources to which it gives rise are:
- J º s acts, and
- Corporate events.
This power is intimately linked with the principle of autonomy.
- Ordering implicit power J º: is one that is recognized throughout the system and not just specific organs. These powers are manifested tacitly and implicitly. Formal sources that arise from this power are two:
The general principles of D °, and
Natural equity.
Formal sources of D º
- The Constitution: it has its origin in the constituent power, and may be defined “as the fundamental rule of order J º that takes care of organizing the E º, the form of government and laying down the powers and limits on the exercise of public powers” .
It is the source of higher rank, therefore, other formal sources can not contradict it. This is called the principle of constitutional supremacy.
This subordination may be:
- Formal: according to which other sources must be created by the bodies or procedures that the constitution provides.
- Material: according to which other sources can not contradict the content of the constitution itself.
There are four bodies that monitor compliance with this principle, these are:
Constitutional Court.
Supreme Court.
Comptroller General of the Republic, and
Ordinary Courts of Justice.
Constitutional Tribunal is a body exercising jurisdiction or so-called constitutional justice. It is composed of 10 members appointed as follows:
3 members appointed by the President of the Republic.
4 members elected by Congress. 2 are appointed directly by the Senate and two are previously proposed by the Chamber of Deputies for approval or rejection by the Senate.
3 members elected by the Supreme Court in a secret ballot held in a special session convened for that purpose.
These members last nine years in office.
Effects of the Constitutional Court ruling
Against its decisions can not be appealed.
Those provisions which the court declared unconstitutional can not become law, statute or treaty.
If the court finds that a particular provision or rule is constitutional, the supreme court can not declare unconstitutional inapplicable.
Constitutional Control Features
In a comprehensive control depending on the number of sources over which it exercises.
It is a preventive control is exercised since before the rule becomes effective.
Its resolutions general effects.
Form of the Constitutional Court Performance
The court intervened at the request of the President of the Republic, in either house or ¼ of its members or no more than 10 parliaments in the exercise, as the power to control.
In addition to the above, the Constitutional Court’s binding action when control is about constitutional organic laws and interpretations of the constitution.
Supreme Court: see what the teacher Susana step in proceedings.
Comptroller General of the Republic, a constitutional body is covered in Chap. X of the Constitution, this body has the powers conferred by Article 98 of the Constitutional text, among others include:
Exercising control of constitutionality and legality of administrative acts.
To control the income and investment of public funds.
In general bookkeeping of the nation.
On the other hand there are acts in the administration of E º known as decrees, rules, instructions and decisions. These acts before entering into force, have to go through the treated so-called “making right” to the Comptroller General of the Republic under which the agency considers whether the relevant act or not in accordance with the Constitution and the law, if not, means that what is represented (rejects), in this case is not effective except in cases of emergency.
Also, the Comptroller General’s Office shall ensure that the force of law decrees exceed or contravene the law delegatoria, or they are not contrary to the constitution.
- The law: the concept of law in our D º positive: according to Article 1 of the DC law is defined as “the law is a declaration of the sovereign will that manifest in the manner prescribed by the Constitution, commands, prohibits or allows .
In order to qualify an act of legislation in our legal J ° only attended to the form, not considering the content of this formal source, nor was general and abstract. Currently, the constitution enshrines certain provisions of the context of which flows both explicitly and implicitly what we mean by law in a technical sense.
24/05/2010
With regard to the subject, object or material element of the law, our Constitution expressly stipulates, in so-called base of the institutions, values and fundamental principles underlying our system J º.
For this reason, article 1 inc. 4 of the CPR states that the E º is the service of human beings and their purpose is to promote the common good, which should help create the conditions for each and every one of the members of the community their highest spiritual fulfillment and material assistance, with full respect for the D º s guarantees that the constitution states.
According to the above, and considering that the legislature is a component of E º, we conclude that must also seek, as its ultimate goal the common good. That is why our constitution, in a general context, determining the content of the acts the legislature: it must aim at serving human beings and the common good.
Other definitions of Law:
According to Thomas: The law is a rational management seeks the common good, given and signed by who is responsible for the care of the community.
According to Maciel Planiol: the law is a binding social rule permanently established by public authority and sanctioned by the force.
Parallel between Definition of law of the CC and St. Thomas
For both, the law emanates from the public authority, the definition of St. Thomas when he says that consecrates it should be given and signed by any person having charge of the care of the community. The CC states that it is a declaration of the sovereign will that expressed the manner prescribed by the constitution ….
In both definitions, the law requires its enactment.
For St. Thomas is a sort of reason why the law arbitrary, unreasonable or it would be incomprehensible law. The CC, in contrast, describes it as a declaration of intent.
As for its purpose, for St. Thomas is the common good, not the particular good of one’s own group or leader. The CC definition contains no reference to the purpose of the law.
Law Classes
According to CC:
Laws Imperatives: those ordered to do something.
Prohibition laws: those that prevent the action, has the mandate to do something not allowed under any circumstances.
Permissive laws: those that allow or authorize the action.
According to the Constitution:
Constitutional Reform Act: that which, issued in exercise of constituent power, is intended to modify any provision in accordance with the procedure specified by the Chap. XV of the 1980 constitution. The quorum required for approval are the three fifths of the Deputies and Senators.
Constitutional Interpretation Act: that which, enacted in the exercise of constituent power, is intended to define the meaning or scope of a constitutional provision. Is required for approval of three fifths of the Deputies and Senators.
This type of law passes necessarily by the constitutional court control.
Constitutional Act: that given in the exercise of legislative power over matters that the Constitution specifically states require for approval the favorable vote of 4 / 7 of Deputies and Senators. One can only dictate in relation to field and within the frameworks charter itself says. Example of these materials: organization and powers of the Central Bank.
Before its enactment should be examined by the constitutional court.
Quorum Act: is that the constitution states to regulate certain matters which require for adoption of an absolute majority vote of Deputies and Senators. Some matters covered by these laws are eg the loss nationalization, control of weapons.
Ordinary Act: it is one that requires for approval, amendment or repeal the vote of a simple majority of deputies and senators present.
Formation of the Law according to the 1980 Constitution
Stages
Stage Initiative: the laws may be initiated by the President of the Republic through a “message”, or by members of Congress, through what is called “motion”, which must meet the requirements of the Constitution says. The general rule is that the proposal of laws belongs to both the President of the Republic and the Congress. Exceptionally some are the sole initiative of the President of the Republic, and some are in Congress. So for eg, is the initiative of President of the Republic of any law that is relevant to the alteration of administrative or political division of the country. They only sources in the Congress, the amnesty laws and pardons General (Senate) or recruitment (lower house).
Stage Talk: As a rule, the discussion can begin in any of the two branches of Congress. That which sends the project for 1st time into “house of origin.” Instead, those who receive and discuss a Once approved by the chamber of origin, is called “revising chamber.”
The source chamber has two alternatives: to reject or approve the draft. If you reject this project can be renewed only after 1 year, except in the case of a proposed presidential initiative, since in that case the Constitution establishes a special procedure . If approved, the project goes immediately to the camera reviewer. This one has three possibilities:
Discard the entire project.
Amend or make additions.
Approval.
If the bill is rejected in its entirety by the revising chamber it passes to the consideration of a joint committee comprising equal number of Representatives and Senators, which attempt to overcome difficulties. Same thing will occur in case of amendments or additions to the original project, which will be accepted only when directly related to the matrix ideas or project basis. All this without prejudice to the right to insist that you have the cameras in his concurring the early projects quorum required by the Constitution.
Approval Status: Approved the project, both by the Chamber of Deputies and the Senate, is forwarded to the President of the Republic for approval or veto.
Punishment phase: before a bill passed by Congress by the President of the Republic, it can take two attitudes:
- Approve the project.
Within 30 days D º to exercise their veto.
If not exercised its veto D º within that period, counted since the project was submitted, it is understood that approval.
The observations made by the President of the Republic in the veto should be directly related to the parent or fundamental ideas of the project.
If the houses pass the comments made by the President in the veto, we refer the project to its enactment.
By disposing of all or some of the comments may insist on the two thirds of the members present. In this case the President of the Republic is obliged to promulgate it.
Promulgation and Publication Stage
- Enactment: under it, the President of the Republic records the existence of the law and its wording and that in its enactment, are met all the requirements established by the Constitution.
- Publication: Aims to make known the law to all citizens of the Republic.
Publication according to Article 7 of the CC, should a process of publication in the Official Journal, and for all legal purposes, it is understood that the date of the law is the publication on it. This same Article states that the law can establish other forms of publication other than the Official Journal.
According to Article 75 of the CPR there is a publication within 5 working days after the date it is fully dealt with the promulgation decree.
According to Article 8 of the CC, the law is presumed known to all from the date of publication. It is a presumption that does not support D No evidence to the contrary. No one can claim ignorance to excuse their infringement of the law.
- International Treaties: is an agreement between subjects of public international º D, governed by this and intended to produce effects J º s.
Currently the subjects of public international º D are generally the E º s sovereign. However, there are other subjects of public international º D, such as international and supranational organizations. Ex: UN, OAS, etc.
Classes Treaties
According to the number of contracting parties:
Bilateral: are those signed by two subjects of public international D º.
Multilateral are those involving more than two subjects of public international º D, are subdivided:
General treaties are those which by their nature tend to be universal.
Restricted treaties are those which are limited to a certain number of subjects.
Open Treaties are those in which they can become part without having participated in the training process.
Done deal: they are only part of the original subjects. For this reason the incorporation of a new subject is a new agreement of the parties.
According to their duration are classified as:
Treaty Duration Fixed Term.
Treaty of indefinite duration.
Process Conclusion of a Treaty
Is understood as any procedures required to create an international agreement.
It begins with talks aimed at the relationship of a text, complete with the expression of consent of the individuals contracting and subsequent entry into force.
The procedure can be decomposed into the following stages:
Preliminary stage: it can distinguish the following phases:
Business: it implies a set of diplomatic technical operations, through which two or more E º s study, discuss and seek possibilities for agreement on a given subject, resulting from all this a draft treaty.
Adoption of the text: it pactantes subjects show that the host or adapt text is agreed.
Authentication Text: means that the text of the treaty, ie the document and the content of this, it is final, which implies further prevent adulteration of the text, this is achieved by affixing a signature rubric on the text by the representatives of the contracting parties.
Internal Status: is represented by the reception at the system’s E º J º negotiating the same, the international agreement. This is done through the legislative bodies of the same, generally divided into two stages:
The approval by the legislature: it is enshrined in article 54 N º 1 of our Constitution, it says, “are exclusive powers of Congress to approve or reject international treaties it presents to the President of the Republic before ratification. The adoption of a treaty shall be subject to the formalities of law. “
Ratification by the Head of E º: this is enshrined in article 32 N º 15 of our Constitution which states: “are special powers of the President of the Republic: conduct political relations with foreign powers and international organizations, and carry do business; complete, sign and ratify treaties it deems appropriate to the interests of the country, which must be submitted for congressional approval as required in article 54 N º 1 “.
Ratification is the formal confirmation that the E º ago having given his consent to the treaty.
External or Demonstration Stage of Ratification: This, in turn, is produced by:
- For the exchange of instruments of ratification (used bilateral treaties).
By the deposit of instruments of ratification with a depositary in the treaty itself is designated (used in multilateral treaties).
Following is possible to distinguish whether a 4th stage:
Promulgation and Publication of the Treaty Law of the Republic: this stage gives domestic effect to the treaty.
Effects of Treaties
With regard to persons or subjects, the general rule is that only effects on the subjects of the treaty and not about 3 º s, unless the consent thereto and the treaty permits.
In Spain, the treaty only produce effects within the territory of the E º s parts, and in time, the general rule is that it produces effects immediately and indefinitely, unless the parties have agreed otherwise.
07/06/2010
Completion of the Treaty
It is the cessation of obligations and legal situations arising from it and which are pending. Such termination may occur by:
Ground provided for in the treaty itself.
Mutual consent of the contracting parties.
Grounds provided for in international º D, eg: serious violation of a treaty, fundamental change of circumstances, and so on.
Value of the Treaty as a formal source of D º
International treaties have the force of law, from the time they are incorporated into national law subject to the formalities of a law.
Institutional Control of International Treaties
Under Article 93 N º 3 of the CPR, is the organism called the constitutional court to ensure the constitutionality of international treaties that have been subject to the approval of Congress.
- The Hierarchy Decrees Act: legislation is called irregular. Distinguished Decrees with Force of Law (DFL) and Decree Law (DL).
- DFL: are decrees issued by the President of the Republic on matters specific to law and according to an authorization granted by Congress through a law delegatoria of legislative powers. In terms of shape are decrees, and in particular, are of supreme decrees; and as to substance (matter), are laws and have the force of law. When a SFD is issued under a law delegatoria, President of the Republic must conform to the law and the Constitution.
Limitations DFL
- Temporary Order Limitation: The approval granted to the President of the republic can not exceed the period of 1 year.
- Limitation on the content: in general authorization can only lie in matters of legal domain. Under no circumstances permits may be extended to the following subjects:
Nationality and Citizenship.
Elections and Referendums.
Subjects covered by constitutional guarantees.
Materials to be Constitutional Act (LOC) or quorum Act (LQC).
Nor may include powers that affect the organization, powers and system of judiciary officials, the National Congress of the Constitutional Court and the Comptroller General of the Republic.
- Limitation of the Act granting this authorization, the law delegatoria bring procedural matters on which the delegation will fall.
The DFL are subject, in their publication, validity and effects to the same rules to which the Act is subject
Control of legality and constitutionality of the DFL
There are two bodies that ensure this control:
The Comptroller General of the Republic, according to Article 99 of the CPR.
The Constitutional Court, according to Article 93 No. 4 and 99 inc. 3 of the CPR.
DL: are decrees issued by the President of the Republic in matters relating to the Act without any authorization by Congress. In terms of its form are decrees, in their background are laws. The DL pose a constitutional break.
In Chile there have been three historical periods have been issued DL (XX century):
Period in Sep. 1924 to Dec. 1925.
Period from Jun. to Sep. 1932.
Sep. period of 1973 to March 1981.
Discussion and debate on these DL Constitutionality
According to the opinion of Arturo Alessandri must distinguish between:
- The DL that have been applied by the Courts of Justice, that is, conflicts have been resolved J º s. These decrees, for one reason J safety meetings, should be recognized by the laws J º.
- The DL that have been modified by any constitutionally elected government rule, it must also be recognized, since the new government to refer to them through laws, has sanctioned.
- All other DL should be estimated zero.
- Decrees, Regulations, Instructions, Ordinances and Resolutions: in general:
Decree: can be defined as a written order emanating from an administrative authority and covered with certain formalities, for example.: Alcaldisio decree.
Classifications:
- According to their scope:
If the agreement is narrowly on application in a particular case, this is, has a specific effect, a decree is “simple.” But its scope is generally called a decree or regulation.
According to the authority that dictated:
Decree: is that dictated by any administrative authority.
Supreme Decree: is he made by the President of the Republic.
Depending on the scope of Presidential Decree:
Regulatory decrees or regulations: they are written order issued by the President of the Republic, signed by him and the respective ministers and contain general rules.
Supreme Decrees simple: they are written orders, including outreach, issued by the President of the Republic, signed by him or the respective ministers.
According to the exercise of regulatory powers:
Self-regulation: the issued by the President of the Republic in the exercise of regulatory power.
Regulations for Implementation: those issued by the President of the Republic in the exercise of statutory authority for the implementation of laws.
According to the role of supreme decrees:
Supreme Decree Regular is one that rests on issues that make the ordinary administration of E º and held general formalities.
Supreme Decree insistence is that issued by the President of the Republic with the signature of all his ministers to organize expenditures not authorized by law under the constitutional 2%.
Supreme Decree promulgates: is one that gives the President of the Republic as co-legislator to sanction the existence of a law and to record its final text.
Parallel between Order and Law
- Both are formal sources emanating from the regulatory authority’s E º.
- Both are subordinate to the CPR.
- In terms of its purpose, matter or content, the law has a set of materials that constitute the domain max. legal (Art. 63 of the CPR), but instead the decree no.
- As for the body, the law emanates from the legislature, the decree, the President of the Republic.
- The law has a hierarchical superiority in relation to the decrees.
- The training procedure of each are different.
Instructions: These are statements that government officials directed their subordinates. The shows them how to implement a law or regulation, or action to be taken to improve the operation of public service. The instructions are called circular when is general in nature and automatically when addressing one or more officers in particular.
Resolution: those rules issued by Heads of decentralized service, delivered to the proper administration of the public service.
Ordinances: are rules issued by the mayoral authority that regulates matters concerning the operation and organization of the municipality.
Control of Constitutionality and Legality of Administrative Acts
We distinguish two bodies:
Comptroller General of the Republic (CGR): This is done through the process of making reason, to review the legality and constitutionality of acts of administration.
Constitutional Court (TC) controls the constitutionality only when, having represented the comptroller a decree unconstitutional, President of the Republic does not conform to this representation and within 10 days of submitting the paperwork to TC to resolve the dispute.
- Jurisprudence: etymologically means knowledge or wisdom about the D º.
Today we know two basic meanings:
Doctrine of treatises or Science J ª: understood in this way is no formal source of D º, but rather source material and knowledge.
Case Law: This agreement in turn supports two meanings.
Court as a set of principles or general rules, which stem from failures uniforms, issued by courts of appeal.
ª J Court as a rule particular contained in any court of law.
- The Custom J ª: is constant and uniform repetition of similar acts over a long period of time within a given locality, together with the conviction that stem from a need J ª.
Custom element J ª
The doctrine generally distinguishes two elements:
Material or External Element: This element consists of the repetition of a number of acts, conduct or form, which must meet the following requirements:
Generality (to be repeated by most members of the community).
Consistency and Uniformity (must be repeated frequently and consistently).
Advertising (must be known and accepted by the community).
Seasonality (must be repeated for a long time).
Spatiality (acts to be repeated in a particular place).
Spiritual or Internal element: the belief that this repetition is due to an imperative J º.
Custom Classification
According to his subject:
Civil custom.
Administrative practices.
Custom commercial.
International custom.
According to law relationship:
Custom as Law: Is that what the law itself recognizes, giving binding force. It is also called “custom according to the law.”
Customary Law was: is that which governs in the absence of law, when there is a legal vacuum, ie a matter which the law does not regulate.
Custom against law: is one that has power to repeal a law, its existence leads to is called “obsolete”. Such a practice is not applicable in Chile.
Custom Value of the Land J º Chileno
Traditionalists in the D J ª º Civil: According to Article 2 of the CC’s Custom D º is not only in cases where the law refers to it “. That habit does not constitute D º means it has no binding force in itself, but acquires the force when the law provides, the value of usual J th in the D º civil Chilean therefore according to law. The CC does not refer the usual but minor matters, usually in terms of the lease, or pay for the mandate.
Traditionalists in the D J ª º Commercial: Commercial Code not only accepts custom according to law, but also the custom in the absence of law.
The custom as law is not specifically regulated in the Commercial Code, so that rules supplementarily CC.
The custom in silence of the law is regulated in the Arts. 4 and 5 of the Code of Commerce.
Unlike DC, the Code. trading in its Article 5, which notes are the evidence used to test commercial practice. In effect, this Art expresses “not aware of the commercial courts that deal with an issue between the parties, the authenticity of the usual it is claimed, can only be tested by some of these ways:
Authenticated by the testimony of two sentences, which assert the existence of custom, have been delivered in accordance with them.
For three deeds prior to the events that led the trial, that evidence should be doing. “
It should be noted that this test is required only when the custom does not appear to the court concerned.
The custom in the Criminal º D: in criminal matters, the practice has no value either by a constitutional provision (Art. 19 N º 4) and by the Code. Criminal (CP Art.18). Is not applicable here under the usual rule of law, or subject in criminal matters. This principle states that there is no crime nor punishment without law enacted prior to the occurrence of fact.
Acts J º s (A. J º s)
A. To properly understand the J º s advance is necessary to refer to facts and relevance J th of the same. For this, we distinguish:
Fact: is any event that happens in time and space.
Ajuridico fact: it is one that has no relevance to the D º. Eg opening a window.
J º s facts are those that have one or more consequences J ª s. It comes from nature, for eg birth, death, etc..; Also come from the man, these in turn may be voluntary or involuntary.
The fact involuntary J No man is the one executed by man, but without full participation of its volitional powers.
The fact J º volunteer man is one that produces J º s loved by its author, or different from the ones for this, they may be lawful or unlawful. Tenderers may have been made with the intent to produce effects J º s (A. J º s) or without the intention of producing them as quasi-contracts. The wrongful made with fraudulent intent are called crimes and those made by mistake are called torts.
Act J º: defined as the manifestation of the will made in order to create, modify or extinguish D º s, and produces the effects desired by the author or by the parties, because the D º punishes the expression of will (as recognized by the system J º).
The fundamental principle in terms of A. J ° is called the principle of autonomy. This means that individuals may hold all A. J º s own choosing, set contents and freely determine their effects, taking into account as the only limitation that these A. J º s not contrary to law, public order and morality. The Art where this principle is enshrined in the 1545 CC.
Rating A. J º s
- In response to No. of parts whose will is necessary for the A. J º is formed:
A. Unilateral º s J: are those to be born into the life J ª require the expression of will of a single party. For eg will.
A. Bilateral J º s are those that to be born into the life J ª require the expression of will of two parties. For eg contracts.
The doctrine refers to A. J º bilateral convention with the name.
The convention is the agreement of the wills of two parties with a purpose, and typically produces the effect of the acquisition, modification or termination of D º s subjective.
- A. In response to whether J °, to produce effects, intended or not the death of its author or of a party is classified as:
A. J º s during life are those that produce the effects of its own does not require the death of its author. Eg sale.
A. J º s by cause of death: those that produce fully its effects require the death of its author or one of the parties.
- Given the usefulness or benefits of the A. J th for those who run:
A. J º gratis are those that are held for the exclusive benefit of one person or one party. For eg the deed of gift.
A. J th for consideration are those that take place taking into consideration the utility or benefit of both parties. For eg contract of sale.
- A. In response to whether J º produce or immediate effect and without limitation:
A. J º s Pure and Simple: those that produce their effects immediately, without limitations.
A. J º s Subject to offer are those whose effects are subordinate to one modality.
It defines the terms as clauses are incorporated into an A. J º to alter their normal effects, the main modes are provided, the time and mode.
- Given the content of A. J º s:
A. J º s family are those pertaining to the E º of persons or an individual’s relations within his family. For eg marriage, adoption, etc..
A. J º s Heritage: are those aiming at the modification, acquisition or extinction of a pecuniary º D, ie a D No cash value. For eg mutual contract (borrowing money).
- A. In response to whether J º exists or not for yourself:
A. Main J º s are those who subsist by themselves, without any further act that serves as a support or support. Eg the sale.
A. J No accessories are those that need to survive a main event that underpin it and to which access. By eg the bond (the bond is formed to ensure compliance with a debt obligation, so that it can not survive without it). eg the pledge, the mortgage.
- Response if the law requires or formalities for its conclusion:
A. J º s Solemn are those subject to the observance of certain formalities necessary special, whether for the very existence of the act, is even its validity, so that their omission results in the absence of the act or invalid. For eg : buying and selling of real property.
A. Solemn J º s not: those who are not subject to any external or formal requirement for their existence or validity.
Constituent elements of A. J º
There are three elements, which are indicated in article 1444 of the CC:
- Essential elements: they are the essence of a contract for those things without which no effect or degenerates into a different one. Although this provision speaks of the CC contracts, applies to all A. J º s. According to her, there are two types of essential elements:
- Essence Elements of general or common: they are the will, purpose and cause. Your failure does not produce any effect.
- Essence Element specific or specific to each act are those whose lack determines that this act degenerates into a different, eg in the sale are the things and price.
- Element of Nature are those that remain essential to the act, means belong to them, under a law, without a special clause. The things of the nature of an A. J No part of it, without the author or the parties expressly say, because the law makes up his will.
- Accidental elements are those that the parties incorporated in a A. J º through clauses and special provisions. For Example: If the parties do not stipulate in a contract of sale, the price must be paid at the time of delivery (part of nature), but the parties may stipulate a clause in which it is established that the price be paid within three months.
Conditions of Existence and Validity of an A. J º
The doctrine distinguishes between requirements of existence and validity requirements. According to her, the absence of the conditions of existence produces the absence of A. J º. This not born to the life of D º. The omission of the requirements of validity, however would not sanction the absence, but invalid.
Conditions of existence of A. J º
- Will.
- The Object.
- La Causa.
- The solemnity (in some cases).
A. Validity Requirements J º
- Will free from vice.
- Ability of the parties.
- Lawful purpose.
- Lawful cause.
- Solemnities (in some cases).
D º: Right.
T-second time.
J ª: law.