Understanding the Foundations of Law: Functions, Branches, and Sources
Concept of Law
Currently, we perform everyday acts that connect us with the law (like buying a newspaper, getting on a bus, etc.). Sometimes the juridical scope of an act is more clear and manifest (e.g., we receive a fine for not having stopped at a red light). The common element of all these facts is a legal meaning: we can demand of others a certain behavior, and they may require us to do the same.
We have to distinguish legal rules from other types of standards:
- First, social norms: these are the generally accepted practices in a community or in sectors whose infraction leads exclusively to a social sanction.
- The law is also distinguished from moral norms involving the consciousness of a duty, and moral reproach holds true even though in many cases it coincides with the rule of law.
Ultimately, the distinction between social, moral, and legal norms does not seem difficult. The latter are mandatory; they may require coercive implementation through their organs in place and have their own standards, while others lack this support.
These rules of conduct of the subject are set by the competent bodies and imposed coercively on citizens, who delineate the powers and duties of each. The articulation of these standards is the task of the legislature, but that organization requires the intervention of an authority to give effect to these standards and ensure their general interests. This coercive organization is manifested through the courts and other visibly distinct means.
Functions and Purposes of the Law
The law responds to the need to organize the world based on a social dimension of man, so the first function is the regulation of social relations. The complexity of this relationship derives from the need to regulate human behavior in all its aspects, taking into account not only economic interests (property, etc.) but also other non-economic reasons such as family relations or rights and freedoms.
The second function or purpose is the resolution of conflicts that may arise in social relations. The right side shows then in recession.
We must point out that the first order is security, which is threefold: peace, order, and certainty of the law or against state security.
- Peace must be understood that the law ensures that every individual is protected against the aggression of others, that social relations occur normally without resorting to violence.
- The second tier is order. In this sense, the role of law is to organize an order imposing any confidence, that is, that is equitable for all (the legislature requires all vehicles traveling in the same direction to go on the right rail, etc.).
- The third strand: certainty of law and security with the state. It is man’s safety against state power. Anyone who has a tendency to abuse power, and one of the main functions of law in that concept is used as a limit to state power and exercise control.
The third function is justice: the rule must respect a proportion, a balance in the allocation of rights or penalties. As well, an act punishable by one year in jail because the driver had not passed his car’s ITV would be unjust. However, the concept of justice is far from universal and unchanging, so that what is now just may be tomorrow, and stop what is right for one may not be for others. Therefore, the basic human values and development rights and freedoms proclaimed by the constitution are to act as the necessary framework in the organization of human society, and we will exercise the distinction between public law and private law.
Distinction Between Public Law and Private Law
Within the law, huge groups tend to distinguish the most important distinction is the difference between standards of public law and private law.
- Public law is the set of legal rules to regulate the organization of public authorities, the relations they can keep with each other and with other citizens, and always acting as a body clothed with power.
- Private law is formed by the set of legal rules governing relations between individuals and between public when not acting as individuals but as public carriers. In public law relationships of the parties, one that covered acts of power occupies a position of dominance or superiority.
The Branches of Private Law
- Commercial law regulates relations between them or the employers of these with their customers, thus qualifying him as particularly used only to certain individuals against civil common or general.
- Civil law applies to all persons subject to a general order given by the mere fact of people without requiring any additional requirement, and the rules of the governing key aspects of a person’s life (his birth, his marriage, his family, etc.).
- Labor law: ascription is difficult to either category (public or private law) as well as the study of the employment contract (private law) addresses public right material and the right to social security or law association.
The Branches of Public Law
- Public international law governs relations between states.
- Criminal law: on crimes and punishments consequent own.
- Administrative law governing the public administration, the organizational, service, and relations with citizens.
- Procedural law regulates both the judicial process and the integration of the organs of state.
- Tax law studies the legal rules through which the state exercises its power of taxation for the purpose of obtaining income from individuals that serve to cover public expenditure.
- Constitutional law: aimed at the form of state and government and regulating authorities.
Sources of Law
The sources of law are the elements used by trial judges and courts to settle disputes submitted to them.
It is particularly important to define the hierarchy of the sources, and not all standards have the same rules. Rules may clash with others, and in this case, the primacy of the rules will resolve this conflict. Article 1 of the Civil Code enumerates hierarchically by law, custom, and general principles of law. However, to identify parcels of law as criminal and administrative, it would not accept custom as a source.
In Spain, after the formation of 1978, it is particularly important with the distribution of powers between the state and autonomous communities. In effect, the rest of the classical principles to solve problems arising in the relationship between sources are:
- The principle of hierarchy, whereby the higher law prevails over the lower law.
- The principle of temporality, the later law supersedes.
- The specialty, which means that the special law prevails over the general.
- It incorporates a new principle, which is the distribution of competence.
The Spanish Constitution should be understood as any other rule in the historical context in which it came; it was the result of a consensus after many years of a political regime that emerged after the Civil War.
The solution to the problem between the state and regional autonomy is far from resolved. Since the promulgation of the Constitution of 1978, there have been disputes between communities and the state administration, and as this raised the distribution of powers in Articles 148 and 149 of the Constitution, it is not surprising the trend of the autonomous communities to incorporate increasing competition in their care.
The competition is accompanied by a budget and increases the power of rulers of autonomy. This process seems to have no return and has been and is a source of conflict between the state and the autonomy that is more marked in communities where there is a marked interest of certain separatist regions.
Outside of the rules, we have as a source the manners and customs of policy law and general principles of law.
The habit is the behavior observed in a long time in obedience to a hypothetical rule of law is expected and is recognized decent, that is, the personal conviction that this behavior is set by the legislation in force. Thus, it is essential in determining whether a repetition of acts can be admitted to indicate the validity of the rule.
Our management considers custom as a source of law according to Article 1 Paragraph 3 of the Civil Code. The practice will only govern in the absence of applicable law provided it is not contrary to morality, public order, and is authenticated. The usual rules in the place where they are playing, be it a village, a town, or a huge territory, and the Civil Code expressly excludes the effect of customs contrary to good faith.
The legal or regulatory purposes referred to in Article 1, paragraph 3, provide that applications that are not purely legal interpretation of a will shall be considered usual. These uses frequent traffic or mode of proceeding in the development of trade relations supplement the gaps in the contract, differ from the usual in that it is not necessary to practice the condition to be meeting a standard.
Finally, the so-called general principles of law do not occur independently of the law or custom, but who are and will be discovered within it, forming and realizing the broad outline of the whole.