Legal Relationships, Rights, and the Philosophy of Law
SUBJECT:
Who is involved? A Human Being / Natural Person OR A Non-Human Legal Person (corporations, associations,foundations). Subjects involved in Legal Relationships usually are holders of concurrent Advantages and Disadvantages:
CONTENT:
What kind of legal positions?
1)Advantages:
“Active / Prevalent positions” Who has rights, are they Subjective, Credit or Potestative rights?
2) Disavantages:
“Passive / Subordinate positions” Are we talking about duties, general obligations of respect, are there burdens? What are the downsides of a Credit/Subjective/Potestative Right?
Subjective Rights
We say that subjective rights are rights that fall directly upon things or other realities treated as things, conferring on the holder (titular) of the right:
i.
Power over things.
Ii
The right to demand an attitude of respect. Very ofte they are therefore absolute rights: They may be upheld by their holder against anyone (erga omes): it is a right “good against the world” (e.G. The Right of Property).
Credit Rights:
It is the active position in situation regarding DEBT (“relações obrigacionais”); it is the right to demand certain type of behaviour from someone else.
There are 3 types of Potestative Rights:
Constitutive modificate extinctive.
Legal Burden
Comes before (some) Legal Rights. If you don’t comply with the Burden, you lose an advantage that is within your reach.
OBJECT:
(1immidiate/2mediate)
1)
De facere:
positive activity; e.G. To build a house; to draw up a contract; to write a report
Non facere:
omisive activity; e.G. Respect of a prohibition to build; refrain from something; stand still.
De pati:
To suffer the activity of others; e.G. To accept that a neighbour builds on his own land, even if you would prefer a garden.
De dare:
Conveyance/Delivery; e.G. Delivery of shopping bought.
FACT:
Constitutive(Gives rise to a previously inexistent legal situation).
Transmissive(Transfers an already existing legal situation from person A’s legal sphere to person B.) Capable of change(Changes the content of a given legal situation that remains in the sphere of person A.)
Extinctive(Changes the content of a given legal situation that remains in the sphere of person A. E.G. Death, payment).
WARRANTY:
Negative sanctions (Disciplinary(breach of an internal law)
Civil(Breach of rules: Citizen V Citizen Citizen V PA)
Administrative(Rules protect secondary interests: Citizen V Citizen Or imposed for general interest of society.)
Criminal(Breach of rules that protect essential interests of the community. Fine, prision death)), Objective of sanctions (PPRCC).
The “conversation” between Graça and Filipa qualifies as a CONTRACT. What kind of Efficacy does that fact has? CONSTITUTIVE. …and WARRANTY: let’s imagine that one of the ladies breaches her duties. Which kind of sanction is appropriate? A NEGATIVE SANCTION. And the sanction you chose, which type is it? CIVIL. The purpose(s) of the sanction you chose was: COMPENSATORY.
LAW VS MORALITY:
3000 BC – 1st traces of codes 1760 BC – Code of Hammurabi (King of the Babylonian Empire): codes are now visible (accessible) and people make policy choices for strict liability.
600 BC – Athenian Statesman Solon: divided society in 5 financial classes and rules were made separately for each class.
455 BC – Roman Twelve Tables (Decemviri8 10 + 2) 100 BC – 300 AD
Classical Roman Jurists 529-534 AD – Corpus Juris Civilis (3 books): Digest, Codex & Institutes 1088 AD – University of Bolonha (CJC + Canon Law side by side)
1700 AD – Concise Codes:
(i) 1804 – Napoleonic: Western + Southern Europe, Latin America (ii) 1900 – BGB Germany: China, Japan, Greece, Baltic States.
CORPUS JURIS – CODES–
A collection of laws/rules that normally has an inspirational policy or philosophy that keeps the set together. And each law within the collection only makes complete sense in confluence with the others. One thing we can say about Law: it looks back, never forward (it is CONSERVATIVE in its style and SLOW in its development).
COMMON LAW:
England, USA… Origin: Anglo-Saxon countries. Adversarial system / Trial by battle. Ased on rules that have evolved from other court cases and living tradition. Essentially unwritten. Udges: interpreters + custodians of distinct body of law; “Act as a disinterested umpire who rarely descends into the dust of the fray.”“Where there is a remedy, there is a right.”
CIVIL LAW:
French; German; Scandinavian; Chiese. Origin: Roman Law.More inquisitorial/accusatorial system. Based on “codified law”, texts:
civil and penal codes. Judges: interpreters + applying the Codes; “Play a more active role in the trial.” Where there is a right, there is a remedy.”
-HART (Oxford) VS FULLER (Harvard):
Declares that the decision of the court (to convict the woman) is wrong because Nazi law of 1934 was a valid law (valid means here from a procedural point of view).
Since Nazi “Law” deviated so significantly from morality, it failed to qualify as Law
Dura Lex sed lex – the law is harsh but it must be obeyed. De lege lata/data – the law as it is
De lege ferenda – the law as it should be
Fuller defends that (Real) Law has an Internal Morality and presents 8 principles that must be present. If we detect a failure of Government/Parliament to comply with them, the context suggests that (Veritable) Law does not exist in that society:
1) Generality
2) Promulgation
3) Non retroactivity
4) Clarity
5) Non contradiction
6) Possibility of compliance
7) Constancy 8)
Congruence between declared rule and official action.
–
Lord Devlin VS
Hart
Series of lectures in 1959, challenges Wolfendon Position (some freedom of the Law)
Challenges the foundation of Devlin’s social cohesion argument
Society MAY punish conduct that in the view of the ordinary member of society (“the man in thejury box”)is grossly immoral. Harm is irrelevant, the fabric of society is maintained by shared morality. Society does NOT REQUIRE a shared morality, it can withstand competing ideologies (PATERNALISTIC ROLE) e.G. Western world (unaffected by Islamic prohibition of alcohol, albeit persons of Islamic morality live in the west). Islamic society insulates “foreigners” from own morality. Although his Paternalistic Role for the Law (differing with Mill), he states that in certain circumstances Law ought to protect individuals from harming themselves: Law should withhold the defence of consent to murder and assault, seat belts, crash helmets…
1776–
Declaration of Independence (US); o 1789 –
Declaration des droits de l’homme et du citoyen; o Nuremberg trials; o 1948 – United Nations Delaration of Human Righ.