State Power, Individual Rights, and Legal Systems
State Power: Arbitrariness and Limits
The problem of arbitrariness can be seen as the legal counterpart to the issue of the limits of state power against the individual. Arbitrariness has two aspects: the competence (staff, equipment, procedural) of state bodies and representatives, and the public attitude towards the exercise of that power. A third aspect is legitimacy, which relates to social justice, i.e., whether the application of positive law aligns with justice or legal justice.
Forms of the State
Considering the socioeconomic structure, a state can be tyrannical, pluralist, or social.
- In a tyrannical state, hegemony is reduced to a minimum, although forms of civil society may exist under an open dictatorship.
- A social state allows for a more or less homogeneous society where pluralism is not seen as a virtue but as inertia resisting the evolution of the new society.
- In a social state, the community is supra-individual and directs the existence of man.
The semantic difference between “tyrannical” and “plural” often conceals an ideology justifying the material reality. Accordingly, there are only two basic types of state based on their socioeconomic structure: the liberal individualist state and the social state.
State Function and the Principle of Division of Power
The relationship between the individual and the state is also affected by the type of state function that prevails.
The state may be legislative, governmental, administrative, or jurisdictional, respectively:
The Legislative State: A state dominated by impersonal, general, and predetermined rules. The law is separated from its application to specific cases, and the legislature is separated from the enforcers of the law.
The Gubernatorial State: The antithesis of the legislative state. Impersonal law and general rules are replaced by the personal, sovereign will and authoritarian rule of a head of state who personally exercises the government.
The Administrative State: One whose expression is specified by action based on the nature of things in light of a particular situation and purely objective and practical views. The ultimate formula of this type of state is that things are handled by themselves.
The Jurisdictional State: Decisions on specific cases in which righteousness, justice, and reason are manifested immediately, without the mediation of previously established general rules and without the normativism of mere legality.
Class Conflict
Social, political, or economic crises, and the subsequent intensification of hidden conflict between the ruling and oppressed classes, can affect dominance, especially when the dispossessed feel that the existing order is not the only possible one. At this juncture, the most affected and lucid classes begin to express their discontent with the existing social order, which can lead to a feeling of impotence or outright hostility towards it.
Rule of Law and the Rise of Individualism
The struggle between individual rights and the authority of the community has been a central theme in both political theory and the theory of law. This parallels the struggle between dictatorship and democracy, and to some extent, between nationalism and internationalism. The authority of law is thus linked to the individual’s struggle against state power.
Individualism and Human Rights
The hegemonic line of argument has been rather persuasive and convincing. Only in a system of bourgeois democracy (parliamentary or presidential) are the hegemony of human rights and the jurisdiction of the individual against the state recognized and guaranteed.
Regulatory Authority and Positivity
This means that the legislative authority prescribes a particular form of behavior through normative action within a social context. Closest to the concept of normative authority is that of positivity, that is, the list of standards produced or prescribed by the agent.
Normative action means behavior governed by rules, and their meaning or sense of linking, through directives (commands, permissions, prohibitions), the behavior of subordinates subject to the regulatory authority.
Modes of Regulatory Action
The concept of normative action connotes a dialectical unity of acts and rules. When we say that the concept refers to regulatory action with dialectically intertwined components, we mean that the sense or meaning of the action is the same standard that exemplifies the action.
The Rule as an Ingredient of Action
The meaning of normative action is, therefore, to discover the rules. The rules of action are an exemplification. The consequence of this view is that the norm is an ingredient of the action, and its abstraction is only one point for the year of competition to make norms that it prescribes. Kelsen alluded to this apparent circle when he said that the law regulates its own creation and implementation.
Primary and Secondary Rules
Rules of the first type impose duties; rules of the second type confer powers, both public and private. The first type of rules refers to actions involving physical movements or changes. The second type foresees acts that lead not merely to physical movement or change but to the creation or modification of duties or obligations.
Legality and Legitimacy of Revolution
We can distinguish two aspects of the problem of revolution: legality and legitimacy.
The legality of a revolution is always determined *ex post facto*, meaning that if the revolution fails, state bodies will consider and judge it as an illegal action. However, one might speak of a law originating in the revolution based on the principle of effectiveness.
Revolutionary Legitimacy
This may be ethical or sociological. The justification is the ethical legitimacy of the revolutionary movement as a hegemonic agenda. This program is actually a set of historically organic ideologies, which are an ingredient of the structure. I think the analysis of this information leads to reinforcing the concept of the historical bloc in which material forces are the content and ideologies are the form.
Inviolability of the Constitution and the Right of Resistance
Article 333 of the CRBV enshrines the inviolability of the constitutional order established by it and prescribes the duty to assist in restoring its effective application in cases of original legal production. This should be combined with the right to resist any regime that arises from an act of force or other means other than those provided in Title X of the Constitution.
The Right to the Restoration of Democracy
The true meaning of Article 333 is apparently the true right to openly resist oppression or tyranny, as in the case of regimes of force arising from a military coup or a fascist movement.
Effectiveness of Law and the Problem of Gaps
In these cases, the solution is unknown because there is no solution, or the solution is ambiguous. We can call a true or authentic lacuna a “lake,” and a lacuna arising from the existence of several incompatible solutions a “conflict lacuna.”
Gaps in Knowledge and Gaps in Recognition
As can be easily seen, so-called knowledge gaps are not really gaps. The lack of knowledge they involve is a problem of subsumption, i.e., doubt or ignorance about the properties of the individual case, so we do not know if it belongs to a particular class of cases, or the undetermined semantics of the concept characterize a generic case.
The Axiological Lacuna and Lacuna Recognition
This term applies to the agreed specification power of the court by the legislature, which constitutes a case of judicial discretion and not a lacuna.
Conditions for a Lacuna
For a lacuna to exist, two conditions are required: a) there is no outright control, and b) the court is enabled to integrate the lacuna. This last condition implies an incomplete and integrated regulatory system.
Alternative Obligation and the Right Lacuna
The concept of alternative obligation, as contained in Article 1217 of the Civil Code, implies the right of the debtor in compliance with the provision unless the election has been expressly granted to the creditor.
Integration as a Primary Regulatory Action
Integration always involves the prior modification of the incomplete system; even here, there is no objection. But to speak about the possibility of understanding as an action outfit for integrating primary legislation, i.e., recognition of primary environmental in the direction indicated above.
Argumentum a Contrario and Inconsistent and Restrictive Interpretation
The contrary conclusion means only that the contents of a legal rule apply only to a certain limitation, excluding, therefore, the interpretation extended by analogy for that limitation.
Argumentum a Contrario and the”Closed Syste”
According to the above, and as stated, a lacuna is possible where, and under *argumentum a contrario*, there is the closure of the system, i.e., the judge is not required to integrate the outfit. Outside of criminal law cases or particular provisions or rules governing the exceptional admissibility of analogy, because the exception is the application of *argumentum a contrario*.
Completeness and Consistency of Scientific Systems
The requirement of completeness is a rational ideal based on the principle of sufficient reason. The ideal of consistency, which requires that no case has two or more incompatible solutions, is based on the principle of contradiction. In turn, one must distinguish between the ideal of completeness and the postulate of completeness, i.e., between the demands that regulatory systems be complete and the claim that some or all of them are.
Ideal and Postulate of Completeness
The ideal of completeness is based on sufficient reason and is thus independent of any philosophical policy or ideology. The postulate of completeness, instead, was often linked to certain ideologies: liberalism and positivism.