Understanding Law: Concepts, History, and Branches
Law: Concept and Implications
Jorge J. Llambías defines law as a just social order – a set of rules that organize the lives of individuals in society, enabling them to pursue their goals and live with dignity. Humans, by nature, tend to live together, and this coexistence requires regulation to ensure everyone can achieve common goals. This social life must be fair.
Hans Kelsen’s Perspective
Hans Kelsen views law as an order promoting peace. It aims to enable individuals to live together and resolve conflicts peacefully, without resorting to force, and in accordance with generally valid rules. This is the order of law.
Two Key Concepts
The first concept emphasizes the pursuit of justice, while the latter focuses on regulations and law as a system.
Defining Law
In essence, law is a set of mandatory rules governing human life in society. Legal rules regulate, govern, manage, and rate behavior, distinguishing them from other norms. Individuals must adjust their behavior to these rules, and non-compliance can result in sanctions to compel adherence.
Objective and Subjective Law
Objective Law
Objective law encompasses the rules governing human actions in society, such as those found in the Constitution, Civil Code, Commercial Code, and other legal texts.
Subjective Right
Subjective right is the power to demand specific actions from others, such as requiring someone to fulfill a contractual obligation or demanding respect for one’s integrity.
Moral and Legal Standards
While both moral and legal norms guide human conduct, legal norms are mandatory and enforceable by authorities. Moral norms, on the other hand, rely on individual conscience. Non-compliance with moral norms may lead to social disapproval, while violating legal norms can result in legal sanctions.
Evolution of Law: Roman and Indian Law
Roman Law
Roman law refers to the legal system that governed Roman citizens and later extended throughout the Roman Empire. It spanned from the founding of Rome (c. 753 BC) to the mid-sixth century AD, culminating in Emperor Justinian I’s compilation known as the Corpus Juris Civilis. While primarily focused on private law, Roman law also encompassed criminal, public, and administrative law.
Sources of Law in Early Rome
The earliest source of Roman law was the customs of their ancestors, which gradually evolved into distinct legal norms.
Influence and Significance of Roman Law
Roman law serves as the foundation for civil and commercial law in many countries. Common law systems, prevalent in England, the United States, and former British colonies, were initially based on Roman law. Continental law systems, found in most of continental Europe and South America, are more directly derived from Roman law, often through the Napoleonic Code.
Indian Law
Indian law refers to the legal system that prevailed in the West Indies during Spanish colonial rule. It had several key characteristics:
- Evangelical: The Spanish Crown was tasked with evangelizing the territories.
- Unsystematic: Indian legislation lacked unity and was dispersed.
- Case Law: Rules from Spain were reviewed by American authorities.
- Public Law Dominance: Focused on administrative rules and organization.
- Protection of Indigenous Peoples: Aimed to prevent abuses by conquerors.
- Principle of Personality of Law: Applied law based on individual circumstances.
- Emphasis on Morality: Morality played a significant role in legal decisions.
Sources of Indian Law
The sources of Indian law included municipal law (created in the Indies), indigenous rights, and Castilian law (applied to private matters).
The Law in Argentina
Argentine law is a blend of rules from various legal systems, including Roman Law, the Law of the Indies, and Patriot Law. The Patriot Law period is divided into two phases:
- Pre-Coded Patriot Law (1810-1853): Marked by the movement towards independence and the eventual enactment of the national constitution in 1853.
- Coded Patriot Law (1853-present): Characterized by the codification of laws and the establishment of a republic with substantive laws.
Sources of Law: Formal and Material
Sources of law are the means by which legal professionals understand the positive law of a community at a specific time. They indicate the origins of the law. The two primary categories are material and formal sources.
Material Sources
Material sources are institutions or social groups with the authority to create legal norms, such as the legislature, the executive branch, and even the people themselves through customs.
Formal Sources
Formal sources refer to the ways in which law is manifested externally, primarily through legislation and custom.
Branches of Law
Natural Law and Positive Law
Natural Law: Encompasses fundamental legal principles of right and wrong, such as the right to life, liberty, and property.
Positive Law: Refers to the set of rules coercively enforced by public authority.
Domestic Law and International Law
Domestic Law: Governs within a specific state.
International Law: Governs relations between states and individuals in different states, as well as between states and international organizations.
Public Law and Private Law
Public Law: Concerns the state and its functions, including constitutional law, administrative law, and international law.
Private Law: Governs relationships between individuals and between individuals and the state when the state acts as a private entity. Key branches include civil law, commercial law, and labor law.