Legal Systems, State Legitimacy, and Justice Principles
The Concept of Law
Law is a systematic set of principles and rules governing the relations among social members and with institutions, demanding certain behaviors to achieve a stable, orderly, and safe social life. It can be categorized as:
- Natural Law: A set of human rights, inherent to human nature. Some consider it timeless, immutable, and universal. Others believe that law is valid because it originates from the divine.
- Positive Law: A set of rules and laws created by human reason within a specific historical and societal context. These laws are sufficiently specific, positive, and published for all members of society to be aware of them. Their validity is derived from the constitution and can be either:
- Public Law: Governs the organization of the state and public institutions.
- Private Law: Governs relations between individuals and is not directly covered by state power.
State Legitimacy and Legal Theories
A behavior is considered legal if it conforms to the legal system. Although law often requires coercion for compliance, this alone is insufficient for its standing. The principle of legality, a historical process born from the struggle for justice and personal security, provides an important guarantee but is neither sufficient nor definitive. This is because individuals are often aware of the injustice of certain laws and may question their validity and legal arguments. Therefore, laws must be legitimized.
Legitimacy refers to the justification and rationale behind laws. The search for the legitimacy of laws is an incessant pursuit, leading to various theories on the legitimacy of the state:
- Natural Law Theory: Posits that humans possess inherent natural characteristics from which law derives.
- Legal Positivism: Asserts that all law originates from and is based on agreements among humans.
- Statist Theories: Propose that the state is the sole source and underpinning of legitimate law.
- Sociological Theories: Argue that society itself legitimizes the state and its laws.
- Marxism: Affirms that law is dependent on the economy, which forms the basic structure of human relations.
- Theories of Agreement: Suggest that for individuals to act freely, compatible with the achievement of collective goals, their conduct must be subject to agreed-upon standards.
Current Criteria for Legal Legitimacy
Considering the principles of plurality and tolerance, the legitimacy of law is now sought based on various criteria acceptable to most people:
- Social Criteria: Laws that respond to societal needs and contribute to their fulfillment.
- Scientific and Universal Criteria: It is increasingly assumed globally that law should not be linked solely to power but requires public consensus to be legitimate.
Key Features of Law
- Controls the behavior of social members and state organs.
- Protects and guarantees recognized fundamental rights and freedoms.
- Promotes social change and transformation in areas such as education, health, and safety.
- Establishes social peace.
- Regulates relations in terms of equality among social members.
- Reassures citizens, even against the State.
- Determines the economic and social relations of production in a given society.
- Establishes relationships between the State and Society.
- Combines the free action of each individual with others.
Perspectives on Society and Law
- Functionalism: Views society as a “system of elements in balance.”
- Social Conflict Theory: Conceives society as unequal, unstable, and in constant struggle for power.
The Concept of Justice
To speak of justice is to give each their due. Justice is the quality of a social order that regulates mutual relations among humans. It is a virtue whose aim is to defend citizens’ rights, promote the common good, peace, and prosperity for all people. Justice can also be defined as the legal authority to require or demand something.
Justice practices equality, fairness, and solidarity. It can manifest at several levels:
- Legal Level: Justice acknowledges laws and requires compliance. Justice in legal acts applies the law fairly, from abstract principles to concrete cases. It also encompasses the inherent justice within the law and the agents of justice who derive legal acts and laws.
- Social Level: Justice as a claim to end poverty. It aims to defend citizens’ rights and respect human dignity, promoting the common good, peace, and prosperity for all people.
- Ethico-Moral Level: Justice signifies a social order regulating mutual human relations. Increasingly, institutionalized laws embody a sense of justice.