Legal Systems: Sources, Theories, and Concepts
Ordering: According to Nunes (2002), the study of law helps understand the legal system’s complex aspects. It explores how thinkers, philosophers, and jurists view the concept of ‘right’.
Laws: Laws serve as a form of punishment for illegal acts and a way to preserve good conduct. They are the means through which the state is governed.
MSMA.
Neocias Sources: Legal rules on contracts involve home-autonomy of will-power bargaining, subject to the principle of legality (Art 5, CF II). Minimum System Requirements include free will, proper form, a lawful object, and proportionality.
Doctrine: This refers to the work of legal researchers, not directly connected to the state’s power. It serves as a material/formal source, encompassing texts by legal authors.
Renaissance: The law loses its sacred character, shifting towards the technical aspects of legal knowledge and losing its ethical dimension. Modern thinkers focus on the effective and rational conditions for survival, moving away from theological questions. This period saw the rationalization and critique of formal law, with laws systematically replaced by general and abstract principles. The Renaissance also saw the creation of universities, where anyone could study, not just the clergy, marking the end of unquestioning respect for religious texts. The focus shifted to practical application, assessing what works and what does not. Machiavelli viewed law as a tool to maintain power.
School of Exaggerating: The Napoleonic Code, a modern code created by natural law, is considered the first school of Positivism. It advocates Legalism, where law is the sole source of law. Legal systems are also subject to laws, with the will of the people predominating. This school, prevalent in the nineteenth century, views the judge as the ‘mouth of the law’.
Historical School: This older school views a lawyer as a historian. It sees law as a science of expression, intended to guide the legislature in creating laws. It criticizes the imposed legality of the exaggerating school.
Theory of Rule of Law: A command (order) must be shared, belonging to the realm of ethics and duty. For a jurist, it is an interpretive framework (Kelsen), with modes including permission and obligation. Elements of the rule of law include a binding normative character and normative hypotheses, which describe possible conduct. Standards can only be created for behaviors where freedom can be exercised. The binding character is the duty to be, always an order, but not necessarily governed by the order.
Public Law: This relates to life in society, with the community’s sovereign interest overriding special interests, thus limiting legal relevance.
Private Law: This concerns private interests, with individuals having parity and autonomy to set standards according to their interests, limited by legality.
Diffuse Rights: These are new categories of law (environmental, consumer) with uncertain, collective, and diffuse interests.
Land: A set of legal rules. Bobbio argues that the rule of law must be clearly distinguished from land, not the opposite.
Duress: In business law, duress is a vice of consent characterized by physical or moral constraint, causing someone to act under the fear of imminent and substantial harm to themselves, their family, or their property (Art.151 CC).
Coercion: This is the act of inducing, pressing, or compelling someone to do something by force, intimidation, or threat. Coercion is a common form of motivation, where avoiding pain or negative consequences has an immediate effect on victims. When permanent, it is considered slavery. While morally reprehensible in many philosophies, coercion is widely practiced on prisoners or in the form of conscription. Critics of modern capitalism argue that without social safety nets, ‘wage slavery’ is inevitable. Meanwhile, liberals view taxes as a form of state coercion.