Law, Justice, and Democracy in the Modern World
Concept of Law
Law is a system of legal norms that regulate human behavior in a society. These are mandatory standards, and the purposes of the law are: peace, equality between citizens and their safety, to protect and guarantee fundamental rights, and to promote the realization of freedom and natural justice. Natural law refers to unwritten rules appropriate to the original rights of man, while positive law refers to legal rules that are written.
Justice: Concept and Functions
Two aspects of this concept are retained: “It is the habit under which men practice what is right, act justly, and just want justice,” and “It is the first virtue of social institutions.” Justice generates law; it is an evaluative criterion of the judicial system, a rationale against illegitimate power, and contains a utopian ideal dimension. Human rights and positive law are related.
Rule of Law and its Forms
The state is a legally organized political unity, and society, as an expression of popular will, creates any right and guarantees the rights of citizens. The basic requirements of the rule of law are democratic rule of law, separation of powers, legality of the administration, and a guarantee of rights. Human rights are liberties, the raison d’etre of the rule of law. The forms of the rule of law are the liberal state of law, the social state of law, and the democratic state of law.
Rule of Law and Democracy
Democracy means “government by the people” and precludes autocracy. A political system is democratic when collective decisions are made by all representatives. It comprises its proceedings (formal democracy) and a system of rights (material democracy). It has an ultimate ethical justification and may be direct or representative democracy. Habermas proposes a deliberative democracy. For ethical, political, and utilitarian reasons, democracy is preferable. Democracy is an infinite task and requires a moral commitment from all citizens.
Key Terms and Concepts
- Right: A set of rules governing inter-subjective relations, whose transgression involves the performance of powers to be met.
- Natural Law: A set of universal and immutable rights belonging to human nature that should serve as a reference and guide to positive law.
- Positive Law: A set of laws in force in a society according to the will of the legislature.
- Iusnaturalism: A legal and political position that supports the existence of a natural law prior to all positive law. It is easily deduced in nature in general, and especially in human nature, which serves to legitimize positive law.
- Legal Positivism: A conception that argues that the origin and foundation of all law and all laws are agreements between men. For this design, there is only positive law, which is a closed area within which legal norms are legitimate.
- Justice: Represents the ideal of perfection that human beings want to capture in the empirical order of their existence, both at the individual and social level. In the latter aspect, it would be a standard valuation of political organization, a legal order value criterion, and finally, the basis of rational argument against illegitimate power.
- Democracy: Etymologically derived from “demos,” meaning people, and “kratos,” meaning power. It is the political regime in which sovereignty resides in the people, that is, the set of citizens. It is distinguished between direct democracy, in which the people exercise sovereignty directly, without intermediaries, and indirect or representative democracy, in which the people exercise sovereignty through representatives selected by them.
- Human Rights: All those subjective rights under universally to humans by the mere fact of being. The key question in the discussion is to understand these rights as natural or positive.
- Postindustrial Society: Democratic society after World War II characterized by consumerism and an economic organization known as the social security welfare state.
- Public Sphere: The scope of democratic society in which, through rational discussion and deliberation of issues of common government, the public acts as a critical reflection on political power.
- Cultural Industry: The transformation of culture and property into the form of commercial products and conversion into consumer items.
- Global Economy: The liberalization of financial flows and market existing state regulations.
- Globalization Politics: The existence of a world economic order with the resulting internalization of markets and the increasing mobility of populations requires a new political order: the various supranational organizations.