The Role of Law and Fundamental Rights in Society
The Role of Law in Society
Law plays several crucial roles in society:
- Orderly resolution of conflicts arising between group members and trying to avoid their occurrence.
- Incorporating certain values into the relationships established by such members.
- Establishing a legal framework within which to move not only individuals but also power.
Law and Conflicts Among Members of the Group
With an overly simplistic definition, we say that the law serves to resolve the controversies that arise within cohabitation. Human groups give rise to disputes, quarrels, and fighting every day. Taking the law into their own hands would destroy society itself. Arbitration already existed in ancient societies, where the arbitrators decided according to their conscience and not with the application of legal rules. Then the figure of the judge emerged, even though article 402 of the Civil Code remains the arbitral institution, and Article 1820 of the Civil Code provides for the possibility that some people engage in a third decision of their disputes. The essential difference between the referee and the judge’s decision is that the latter is binding under the mandatory law.
The law also resolves conflicts and anticipates them as it provides legal certainty for citizens to know beforehand the consequences of their actions.
Law and the Provision of Social Values
The initial assertion that law orders social relations implies that [the law] should project on society the values of justice, i.e., it is a just law. This requirement led to radical positions such as that unjust law is not right. Saint Augustine stated, “there is no law that is not fair.” Saint Thomas Aquinas developed the doctrine of resistance to unjust law. This thesis today is indefensible since no law is completely fair because laws are made by men. The law is always right regardless of the justice or otherwise of its prescriptions. The Socialist Group is expected to change channels in democratic systems.
Apart from the value of justice, it must also incorporate equality. This means that the laws apply to everyone without distinctions or privileges; Article 14 of the Spanish Constitution states, “Spanish people are equal before the law (…).” The law should also be carrying the value of morality, referring to social morality, not religious. This morality is modified in step with the times; the law should be parallel to adjust to changes in social morality.
Law Models the Structure and Dynamics of the Group
No law can change rapidly and immediately. Karl Schmitt speaks of risk for motorized and orthopedic legislation for two main reasons:
- Danger to the legal security of citizens.
- Risk that the legal system as a system be altered.
Therefore, reforms should only be carried out when their need is obvious and immediate, and their impact on the system should be evaluated. Usually, reforms are more frequent in lower-level standards.
The law came forward to social change by creating rules that induce a particular behavior (savings), or penalizing, for example, an offense hardest comet now more often. In short, law plays the role of shaping the group’s structure and dynamics by directing the channels of justice and the common good.
Law Creates a Legal Framework for the Exercise of Power
In any organized human society, there is an indispensable factor in its existence: the power that wields the ability to command and is the depository of force. Throughout most of history (except for Greece and Rome periods), power was exercised by the monarch in absolute power. In the early sixteenth century, the notion of the state began to be introduced by Machiavelli. But Bodin gives the essential concept of sovereignty, that is, that there is no other power over him.
In the nineteenth century, the liberal ideology brings the concept of the rule of law, which commands that not only individuals are subject to law, but also the state itself. The essence of the rule of law is that it recognizes the state’s ownership of power and strength, but these are controlled by law. With the rule of law, the human person takes center stage and is no longer subject to becoming citizens, i.e., it is not liable for the power but who has the power to control this. The rule of law can only truly function in a genuinely democratic political system. Legaz states that the rule of law is one that performs a certain conception of justice (…) This conception of justice is personality. It is respect for the values of the individual that characterizes the rule of law.
Fundamental Rights
The law also has the function of protecting the exercise of fundamental rights. Man has some value, and respect for these values makes them transmute into rights; thus, fundamental rights were born.
Concept and Name of Rights
Fundamental rights are those held by man for the mere fact of being human, without being affected by any discriminatory circumstances. They are known by various names: human rights, rights of man, and rights of the human person. It also speaks of natural rights and fundamental rights; in order, the term fundamental freedoms is used. The terms human rights and fundamental rights are the most used.
Comparing Fundamental Rights with Other Individual Rights
- Subjective: The incumbent exercises versus a particular subject.
- Fundamental: They are put forward in most cases against the state.
The exercise of human rights is often an act of defense against the intrusion of power in the sphere of freedom of the individual.
The achievement of these rights has been slow: Up to the 17th century, the idea of human rights did not break through with some clarity, and much remains to be done in many countries.
Characters of Fundamental Rights
Human rights are, of course, subjective rights. Although their fundamental condition has special relevance. Characters possess rights not shared by others:
- They are inalienable: No prescription affects them.
- Inalienable: Not transferable to another owner.
- Unrenounceable: The subject of them cannot give up their ownership.
- Universal: They are possessed by all men.
In the past, they were also attributed the character of absolute, unlimited, and could be exercised as in the Bill of Rights of Man and Citizen of the French Revolution of 1789. The doctrine now recognizes the boundaries: public, common good, and the rights of others.
Guarantee of Fundamental Rights
The State must provide safeguards to ensure the exercise thereof. Any rule of law must have procedures used by citizens when some of those rights and freedoms are undermined or nullified.
Assurance Systems
The protection and enforcement are entrusted to courts acting at the request of the injured. Competition can be an ordinary court, or as in the case of Spain, a specific court, the Constitutional Court. You can go to the same exercising the remedy of amparo or resource unconstitutional. At the international level, to the European Court of Human Rights, created in 1950 by the Rome Convention. Another guarantee instrument is the Ombudsman, whose precedent is the Swedish Ombudsman. The Ombudsman has no executive function, which severely limits their performance.
The Fundamental Rights Positivization
Positivization is necessary for its proper exercise since the courts cannot act only through the application of legal rules.
Two Areas of Doctrine
- The character is an establishing positivization: Fundamental rights are born to be proclaimed the rule that protects them.
- Positivization is simply stated: The rule does not create, only recognizes and declares it; (Doctrine more widespread).
Procedures for Positivization
- The Constitution: The expression of popular will. The first Constitution of the U.S. 1787 did not explicitly address the issue. It was the first French constitution that opened the 1791 declaration of the rights and freedoms. Then follow the majority of constitutions.
- The Universal Declaration of Human Rights: Formulated by the UN in 1948. Supra-universal declaration. It represents the will of all peoples. Given the nature of the mandatory standard, it is questionable whether it is “positive law,” since it only has a purely recommendatory nature for states.
Three Classes of Key Species of Fundamental Rights
- Civil Rights: Those that most directly affect the person. To life. Physical integrity. Property. Freedom. Dignity. Freedom of thought. Religious freedom. The inviolability of the home. etc. Its precedents are the Declaration of the People of Virginia 1776. The French declaration of 1791 lists equality, freedom, security, and property.
- Political Rights: Suffrage. To participate in government. The control of power. Freedom of association and assembly. Public expression of ideas. Those arriving by constitutional rights during the nineteenth-century liberal ideology.
- Once secured the rights to freedom, was to develop the principle of equality rather than merely a theoretical formalism happen during the nineteenth to equal participation in the benefits of social life, health, education, housing, etc. Thus born the economic rights – social. And after the Second World War, cultural rights. At work. A strike. When working. Unmarried. etc.
A Brief History of the Fundamental Rights
The onset and evolution are in the modern age. In the Middle Ages, only the monarch granted mere privileges to certain groups, subjects, or social groups, with a clear tone sporadic and fragmented. From the 16th century, these privileges were addressed to all subjects; there was a generalization. The next step is universal, with the authentic statements of rights in modern times. In Europe, France was the pioneer on August 26, 1789, with the Declaration of Rights of Man and Citizen. After the war of 1945, similar statements to the eighteenth century were produced, but this time they came from supranational bodies. This was due to the terrible experience of war. The UN, created by the Charter of San Francisco in 1945, had as one of its first tasks the drafting of a code of human rights. On December 10, 1948, it adopted the Universal Declaration of Human Rights.