Understanding Legal Norms and Their Application

Posted on Dec 1, 2024 in Law & Jurisprudence

Law: Its Meaning and Evolution

Law, derived from the Latin word directum, meaning “under the rule,” encompasses the mandatory rules established to achieve the common good. Law is not a precise science; rather, it’s a social construct, reflecting the values of a community. Throughout history, law has transitioned from natural law to positive law. Various perspectives define law, including:

  • Natural justice, a virtue par excellence (Justinian)
  • Acting honestly, avoiding harm, and giving each their due
  • An instrument of control or class domination
  • The constant and perpetual habit of giving each one his right (St. Thomas Aquinas)
  • The external adjustment of persons in relation to the demands of another
  • The set of mandatory rules governing actions in society, enforceable by constraint (legal system)

Characteristics of Legal Norms

  • Prescribe behavior
  • Are general and abstract
  • Imperative (order a behavior)
  • Represent or tend towards end-values (legally protected)
  • Coercible
  • Permanent
  • True (Art. 8, Civil Code)

Classification of Law

  1. Natural Law: Principles and values of fairness and good sense.
  2. Positive Law: Legal rules codified in laws.
  3. Objective Right: Written law.
  4. Subjective Right: Power conferred by legal order, enabling the holder to act, demand, or refrain from doing something.
  5. Public Law: Governs state organization, activity, and relations between political and administrative bodies.
  6. Private Law: Governs relations between individuals, and between individuals and the state acting in a private capacity.

Public law is divided into National and International, governing internal and external (inter-state) relationships, respectively.

Branches of National Public Law

  • Constitutional Law (establishes and regulates the state, its organs, powers, and duties)
  • Administrative Law (regulates state activity and its organs)
  • Criminal Law
  • Procedural Law

Branches of National Private Law

  • Civil Law
  • Commercial Law
  • Mining Law
  • Labor/Employment Law

Sources of Law

Law originates from two sources:

  1. Formal Sources: The forms through which precepts of conduct are socially imposed. These include: Law, custom, doctrine, and jurisprudence.
  2. Material/Actual Sources: Factors influencing the content of legal rules, such as historical, religious, sociological, and political circumstances.

Hierarchy of Legal Norms

(In order of descending authority):

  • Constitution (Constitution)
  • Constitutional Amendment Acts
  • Organic Constitutional Laws
  • Qualified Quorum Laws
  • Ordinary Laws
  • Decrees with Force of Law (DFL)
  • General and Special Orders
  • Ordinances and Instructions

Constitution: The supreme law, regulating all legal production and publication.

Constitutional Amendment Acts: Laws interpreting the Constitution. Require 3/5 of Deputies and Senators for approval, amendment, or repeal, and review by the Constitutional Court.

Organic Constitutional Laws: Laws concerning the organization and powers of state authorities or institutions of high importance. Require 4/7 of Deputies and Senators for approval and review by the Constitutional Court.

Qualified Quorum Laws: Require an absolute majority (50% + 1). Examples include laws on the death penalty and gun control.

Ordinary Laws: Require a simple majority of members present.

Law, while the primary formal source, is not the original. Historically, judgments of the King, Praetor, and Jurisconsults served this function.

Definitions of Law:

  • St. Thomas Aquinas: “A limitation of reason, for the common good, promulgated by those in charge of the city.”
  • Civil Code (Art. 1): “A declaration of sovereign will, expressed in the form prescribed by the Constitution, which commands, prohibits, or permits.”

Formation of Law

Initiative: Presidential message or motion by no more than 10 Deputies and 5 Senators.

  • Deputies’ sole initiative: Taxes, budget, recruiting.
  • Senate’s sole initiative: Amnesty, general pardons.
  • President’s sole initiative: Political-administrative division, financial administration.

Process:

  1. House of Origin: The chamber where the bill is introduced.
  2. Reviewing Chamber: The other chamber.
  3. Discussion: Committee review, general discussion, and particular discussion (article by article).
  4. Outcomes: Approval, amendment, or rejection.
  5. Reviewing Chamber Process: May approve, modify, or reject. Possible outcomes include agreement, further amendments, or rejection and referral to a joint committee.
  6. Joint Committee: Formed when chambers disagree. Seeks agreement and returns the bill to both houses.
  7. Decrees with Force of Law (DFL): Rules issued by the President with delegated legislative power, valid for up to one year, and subject to specific limitations.
  8. Decrees: Issued by the executive without legislative authorization.
  9. Enactment: Presidential decree promulgating the law within 10 days of approval.
  10. Publication: Publication in the Official Gazette within five working days of the decree, making the law binding and presumed known to all (Art. 8, Civil Code).

Content and Effects of Law

Laws can be imperative (commanding or prohibiting), permissive, or normative (amending, interpreting, or clarifying existing laws).

Effects Regarding Time

Laws apply from their effective date until repealed. The effective date is typically upon enactment and publication.

Retroactivity: Generally, laws apply prospectively. Retroactive application is exceptional and subject to restrictions, particularly regarding constitutional guarantees like the right to property.

  • Criminal Matters: Article 19, No. 3 of the Constitution prohibits retroactive application of criminal laws unless the new law favors the accused (also benefiting the convicted, per Art. 18 of the Criminal Code).
  • Civil Matters: Retroactivity is limited by constitutional guarantees, especially the right to property (Art. 19, No. 24).