Natural Law, Social Contracts, and Legal Interpretation
Natural Rights and Social Contract Theories
Natural Law and the Concept of Natural Security in Hobbes
The rationalist natural law theory studies individual natural rights through two premises: discovering the true essence of human nature through reason, and proposing laws consistent with these natural rights. Authors of this theory envision humans in a hypothetical state of nature, agreeing upon a social contract based on human nature. Thomas Hobbes, an 18th-century English jurist and politician, is considered the first author of the social contract within natural law. Hobbes identified three natural passions in man: competition, diffidence, and vanity. He believed that within the state of nature, humans need a sovereign to provide certainty and ensure legal certainty through reason.
Natural Law and the Concept of Natural Equality in Rousseau
Jean-Jacques Rousseau is a key figure in natural law, emphasizing equality. He opposed political inequality, differentiating between representatives and the represented, government and citizens. Rousseau also criticized economic inequalities and private property. In his social contract, the noble savage, living in isolation, possesses a sense of equality. The only acceptable social pact is guided by the general will, preventing governance solely by representatives and ensuring political equality. Rousseau rejects private property as the source of inequality, advocating for material economic equality.
Interpretation and Application of Law
Justifications for Motivating Judicial Decisions
There are three legal and policy reasons justifying the need for motivation in judicial decisions:
- Referral to Law and Legal System: Judges must justify their decisions by referencing the law and explaining their interpretation of relevant legal statements. This demonstrates the link between the decision and the legal system.
- Effective Judicial Protection: A motivated decision ensures legal argumentation, fulfilling the mandate of Article 24.1. The Constitutional Court emphasizes the requirement for reasoned judgments.
- Judicial Review of Judgments: Motivation is crucial for hierarchical review by higher courts, ensuring the principle of jurisdictional unity and facilitating review up to the Supreme Court or Constitutional Court.
Criteria for Interpreting the Law
Grammatical, Theological, and Historical Criteria
These criteria limit potential arbitrariness in legal interpretation and application by judges:
- Grammatical Interpretation: This criterion prioritizes the literal meaning of legal text. In criminal law, it often prevails. In private law, it’s crucial for contract interpretation, unless the literal meaning contradicts the contract’s purpose.
- Historical Interpretation: This examines the legal history and policy context surrounding a rule’s creation. Conservative and dynamic approaches exist, balancing historical context with adaptation to current social needs.
- Theological Interpretation: This seeks the spirit and purpose of the law, considering the legislature’s intent. Legislative history helps clarify potential discrepancies between the law’s goal and its application.
Systematic and Sociological Criteria
- Systematic Interpretation: This considers the interconnectedness of laws. It includes the consistency argument (resolving contradictions), interpretation under the Constitution, the rule conservation argument (exhausting interpretive options before invalidation), and contextual arguments (considering the rule’s placement within the legal text).
- Sociological Interpretation: This adapts legal interpretation to current social realities, particularly for rules reflecting outdated contexts. It’s used in conjunction with other criteria, for specific matters, and cautiously to avoid undermining legal certainty. The jury system exemplifies the transposition of social realities into legal practice.