Sources and Theories of Law
1. Formal Sources of Law
Hans Kelsen argues that while the law provides a framework of possibilities for judges to make decisions, it doesn’t dictate a single solution. Judges must choose between these options when sentencing. This choice, according to Kelsen, is an act of will that establishes the law. In other words, judges don’t merely discover and formulate pre-existing rights; they create them through their judgments. Each judicial decision under a particular law introduces a specific legal standard that didn’t exist before sentencing. This individual standard differs from the general rule established by the statute. Kelsen suggests that a flawed understanding of the judiciary’s role, which focuses solely on general rules and ignores individual legal norms, has obscured the fact that court rulings are part of the law’s production process.
Article 3 of the Civil Code reinforces the idea that individual and specific legal rules, as decided in a given case, constitute a formal source of law. However, this character is not extended to the understanding of law as knowledge or jurisprudence as a set of judgments. This is because judgments are binding only on the specific cases they address and don’t mandate how other judges should rule. Nevertheless, these judgments are crucial as sources of legal knowledge and material. Studying significant judicial decisions, especially if they are consistent and uniform on a particular matter, allows for a deeper understanding of the law beyond simply examining legal texts.
2. Functions of General Principles of Law
2.1 Explanatory Function
General principles serve as a technical description of the legal system or parts of it. They provide relevant legal information and highlight fundamental legal rules. Importantly, they are used to reconstruct and systematically present the normative material being analyzed.
2.2 Regulatory Function
Principles contribute to the implementation and production of rules by legal bodies. They are used to address gaps in the law, interpretational difficulties, and potential unfair consequences of applying the law. They also guide legislative activity by informing the content of legal standards. In essence, principles act as a foundation for judges, legislators, and other legal practitioners in their decision-making processes related to implementing and producing law.
3. Validity of Law According to Hobbes
Thomas Hobbes, a 17th-century English philosopher and proponent of absolutism, advocated for a contractarian concept of legal validity. His doctrine rests on two philosophical assumptions: first, that humans are naturally sociable; and second, that humans are inherently selfish, seeking their own good and indifferent to others. Based on this, Hobbes argues that if humans were governed solely by nature, a perpetual “war of all against all” would be inevitable, as each individual would strive for personal gain at the expense of others. Thus, the human condition before the existence of law was a state of constant conflict, where individual rights were unlimited. This absolute individual freedom in the primitive state is the root cause of the ongoing war. Hobbes suggests that it’s in humanity’s best interest to abandon this state of nature due to the dangers of continued conflict. This can only be achieved through a social contract, where each individual relinquishes their unlimited freedom. This renunciation must be complete and unconditional to avoid reverting to the state of nature. Therefore, all individuals must surrender their original rights to a sovereign power that will impose laws and define justice. In Hobbes’ theory, the validity of law is grounded in this social contract – the unconditional subordination of the individual to an authority that represents them and holds all power. It’s important to note that this social contract is a theoretical construct used to explain a particular state of affairs, not a historical event.
4. Theory of the Exclusionary Rule
Developed primarily by Ernesto Zitelman, this theory posits that there are no legally irrelevant facts and no gaps in the law. Every specific legal rule regulating certain acts is implicitly accompanied by a second, general rule that excludes from the scope of the specific rule all unforeseen events. These excluded events are either unregulated or subject to a legal regulation that is contrary or antithetical to the specific rule. This second, general rule is called the exclusionary rule. For example, a rule prohibiting the export of cigarettes implicitly contains another rule permitting the export of everything except cigarettes. The legal order is then the result of the combination of all specific rules and all exclusionary rules. The latter can be expressed by a single rule: “Everything that is not legally prohibited is lawful or permitted.” This rule, also known as the Closing Statement, ensures the completeness of the legal system by guaranteeing a legal qualification for all facts not covered by other standards. Thus, facts that constitute a legal vacuum in other theories belong to the realm of the legally permitted in this theory. This different classification has significant consequences. If the realm of the legally permitted or lawful is considered the area of freedom granted to citizens, it becomes legally relevant. This means that other citizens have an obligation not to infringe upon that area, and if they do, the affected citizen has the legal right to seek redress through various state agencies.
5. Definitions
5.1 Legal Persons
A legal person is a fictitious entity capable of exercising rights and assuming civil obligations. It can be represented in and out of court (Art. 545 CC).
5.2 Capacity to Enjoy
Capacity to enjoy refers to the ability to have rights and obligations. Legal capacity is the ability or aptitude of individuals to exercise their rights themselves.
5.3 Sanctions
A sanction is the legal consequence of breaching a duty imposed by a legal norm, such as a law, a sentence, or a contract.
5.4 Bilateral Contract
A bilateral contract is an agreement that creates rights and obligations for all parties involved. Both parties are mutually bound, as in a sale, lease, etc.
6. Responsibility According to Kelsen (Classification)
6.1 Direct and Indirect Responsibility
An individual is directly responsible when sanctioned for an act they performed. In other words, the person who commits the unlawful act is the same person subject to the sanction.
6.2 Contemporary Criminal Law and Vicarious Liability
Contemporary criminal law only recognizes direct responsibility. Vicarious liability exists only in civil law.
6.3 Subjective or Objective Responsibility
Vicarious liability arises when a sanction is applied because the subject caused or contributed to the result of their unlawful conduct.
Levels of Objective Responsibility
- When the unlawful act is committed with malicious intent, i.e., with the intention of causing harm.
- When the unlawful act is committed without the intent to cause harm, but with the possibility of an unfavorable outcome.
Furthermore, under objective responsibility, an individual can be punished regardless of whether they intended or anticipated the result of the unlawful act. In criminal law, the principle of subjective responsibility is generally accepted.
7. Denial of Legal Right in American Legal Realism
American Legal Realism focuses on the application of law and the relationship between legal concepts and the facts of reality. For legal realists, law is primarily a body of judgments influenced by emotions that prevent it from achieving complete unity and coherence. This perspective leads to a reassessment of the sources of law.
While law and other legal sources guide judicial decisions, they don’t fully determine them. Judges’ decisions are also affected by their emotions, beliefs, ideology, religion, prejudices, etc. Therefore, from the perspective of legal realists, it doesn’t make sense to defend the existence of subjective rights derived from and protected by legal rules. Since legal rules don’t fully determine judicial decisions, there’s no certainty in attributing faculties based on them.
Furthermore, Scandinavian legal realism argues that most traditional legal concepts are fictional and exist only in people’s imaginations. Only what can be empirically verified and demonstrated by facts is considered real. This is not the case with legal concepts, including subjective rights. The concept of subjective right is seen as imaginary and projected onto human psychology as a feeling of obligation. This feeling of obligation is the only reality, not the existence of subjective rights.