Social Treatment Rules (STR): Exploring Connections and Distinctions with Law and Morals

Posted on Apr 28, 2024 in Law & Jurisprudence

Social Treatment Rules (STR) and Their Description

Connections and Distinctions with Law and Morals

Not Normative Behaviors: Some social customs, despite being accepted patterns of behavior, are not required and do not generate adverse reactions if not followed.

Normative Behaviors: Social customs with a normative nature are required, and non-compliance leads to adverse reactions from the group. These norms, called STR, contribute to social control and organization.

Connection between STR and Law:

STR form the basis for Legal Normative Rules (LNR) to be considered norms, as they are demanded by the majority. Additionally, some LNR that were once valid later become STR, contributing to group stability.

Canons to Distinguish STR from Moral and Legal Rules:

  1. Heteronomy: STR are heteronomous, not created by those who obey them, unlike autonomous moral rules. Legal rules are also heteronomous but created by a competent authority following specific procedures.
  2. Scope of Validity: STR lack a clearly defined temporal and geographical scope, unlike law. However, STR can have varying geographical scopes and may decline over time.
  3. Externality: STR and legal rules require external observance, while moral rules demand internal observance.
  4. Sanctions: STR are enforced by external sanctions from the group, moral rules by internal sanctions (remorse), and legal rules by external institutionalized sanctions.
  5. Law’s Composition: Law includes rules defining competent authorities, procedures for rule creation, and sanction determination, unlike STR and moral rules.

Law and Morals

The relationship between law and morals is complex, with various theoretical models:

  1. Confusion: Law is seen as a subset of morals, with all unlawful actions being immoral. This model is prevalent in countries with fundamentalist religious legal systems.
  2. Categorical Separation: A theoretical model with no historical reflection, where morality and legality are entirely independent.
  3. Conceptual Separation: Found in Western societies, this model acknowledges separate normative systems for law and morals, with some overlap in areas of shared interest.

Distinguishing Law and Morals:

  1. Object: Morality focuses on internal actions, while law deals with external actions.
  2. Goal: Law aims for social order and security, while morality pursues individual goals like self-realization.
  3. Will: Morality is autonomous, arising from individual conscience, while law is heteronomous, created by external authorities.
  4. Observance: Moral rules require internal observance (morality of action), while legal rules require external observance (legality).
  5. Temporal and Geographical Scope: Morality lacks a defined scope, unlike law.
  6. Sanctions: Moral rules have internal sanctions, while legal rules have external institutionalized sanctions.

Connections between Law and Morals:

  1. Structural Morality: Every legal system reflects certain moral values supported by political will.
  2. Common Element: Both law and morals aim for social control and organization, with a shared minimum content of basic rules derived from human nature and survival.
  3. Formal Justice: Law requires structural elements like generality, promulgation, prospectivity, understandability, consistency, constancy, possibility, and congruent application to achieve its function.
  4. Explicit and Implicit References: Law often explicitly or implicitly refers to moral concepts.

Public Ethics and Private Ethics

Distinguishing law and morals requires understanding private and public ethics:

  1. Private Ethics: A personal plan for achieving moral autonomy and happiness, often developed within religious or philosophical frameworks.
  2. Public Ethics: Moral values pursued by political power through law, such as security, liberty, equality, and solidarity in Western societies.

Relationship between Private and Public Ethics:

Ideally, public ethics provide a framework that protects individuals’ pursuit of private ethics. However, totalitarian and fundamentalist pathologies can distort this relationship.

Law, Force, and Power

The state holds a monopoly on the legitimate use of force, concentrating power that was previously dispersed among various entities.

Theoretical Models of Law and Power:

  1. Superiority of Power: Rule of men over the rule of law.
  2. Superiority of Law: Natural law theories posit a higher law above human-made positive law.
  3. Identification: Anarchist and Marxist theories view law as a tool of domination, while Kelsen’s pure theory of law sees power as exclusively legal.
  4. Coordination: Law is a unified, coherent, and complete system, while the state is an institutionalized, open, and complex power. The state’s use of force is justified to uphold shared values.

Execution of Coordination Model:

Elements of democracy ensure coordination between law and power:

  1. Rule of Law: Government operates under the law, reflecting the general will and subjecting itself to legal constraints.
  2. Separation of Powers: Legislative, executive, and judicial powers are separated and balanced to prevent abuse.
  3. Fundamental Rights: Recognition and protection of fundamental rights limit state power and ensure individual freedoms.

Types of Democracy and Legal Framework:

  1. Classic Liberal Democracy: Limited suffrage, focus on individual and civil rights, and distrust of executive and judicial power.
  2. Modern Liberal Democracy: Universal suffrage, expansion of political participation and social rights.
  3. Social Democracy: Emphasis on social justice, redistribution of wealth, and welfare state policies.

Introduction to Sources of Law

The understanding of law creation has evolved, recognizing the role of various sources beyond the legislative power:

  1. Rise of the Constitutional State: Constitutions serve as the highest legal authority, guiding and limiting other sources of law.
  2. Limitations of Legislation: The complexity of legal issues necessitates interpretation and application of laws by other authorities.
  3. Expansion of Executive Power: The welfare state has led to increased lawmaking by the executive branch and public administration.

Statutory Law

Parliament and government are key centers of normative production:

Parliament:

  • Organic Acts: Regulate fundamental matters and require an overall majority for passage.
  • Ordinary Acts: Regulate other matters and require a simple majority.
  • Acts of Basic Principles: Delegate legislative power to the government for specific matters and timeframes.

Government:

  • Legislative Decrees: Issued based on delegated power from Parliament.
  • Decree-Laws: Issued in cases of extraordinary urgency and subject to parliamentary approval.

Judicial Law

While the normative status of jurisprudence is debated, judges play a role in law creation through interpretation and application:

  • Supreme Court: Its jurisprudence is binding on lower courts.
  • Constitutional Court: Issues rulings on appeals for legal protection and constitutional challenges, shaping legal understanding.

Legal Interpretation and Law Application

Interpretation and application of legal rules are essential activities for public authorities, including judges and legislators.

Legal Formalism vs. Anti-Legal Formalism:

Formalism views law as clear and complete, requiring mechanical application by judges. Anti-formalism recognizes the need for interpretation due to legal indeterminacy and gaps.

Hart’s Position:

Hart takes a middle ground, acknowledging the need for interpretation while recognizing limits to judicial discretion.

Quirks of Legal Interpretation:

  • Open texture of language requires interpretation.
  • Interpretation is subject to rules and presumptions.
  • Interpretation is a dialectical, problematic, and valorative activity.

Canons of Legal Interpretation:

Guidelines used to attribute meaning to legal rules:

  1. Grammatical Canon: Focuses on the plain meaning of words.
  2. Systematic Canon: Interprets rules within the context of the broader legal system.
  3. Historical Canon: Considers the intent of the framers and historical context.
  4. Teleological Canon: Interprets rules based on their purpose or aim.
  5. Sociological Canon: Adapts interpretation to current social realities.

Constitutional Interpretation

Constitutions, as the highest law, require special consideration in interpretation:

Interpretation According to the Constitution:

The Constitution acts as a guide and limit for interpreting other legal rules.

Interpretation of the Constitution:

Technical and political considerations influence constitutional interpretation:

  • Technical: The structure of constitutional clauses, including principles and open-ended language, affects interpretation.
  • Political: The legitimacy of judicial review and the balance between judicial activism and deference to the legislature are key issues.

Interpretivism vs. Non-Interpretivism:

Different approaches to constitutional interpretation exist, ranging from strict adherence to original intent to a more flexible approach that considers evolving social values.

Understanding the sources of law, legal interpretation, and the relationship between law and morals is crucial for navigating the complexities of the legal system and ensuring its effective functioning in a democratic society.