Chapter 1: Concept of Law Flashcards
(23 cards)
what did Aristotle say in regards to the nature of men?
“man is a social animal”
- life in a society is a necessary condition for men, we depend on relationships/interactions
society
agglomerate of people with a common purpose, that has stability and that is organized
3 main types of societies
International societies: w/ international purposes (EU, UN…)
State societies: different states
Infra-state societies: individuals oriented towards non-state interest (family, companies, churches…)
social authority (4)
Social authority is vital to ensure fluidity in social life. This authority must:
Take collective decisions = decision- making power
Create system of rules = legislative power
Set of organs to implement the rules = institutional power
Apply corresponding penalties = sanctioning power
naturalist conception of man in society
natural tendency to socialize in order to meet basic needs
-> only in close collaboration with other can men develop their full potential and find fulfilment as individuals
classic authors: Aristotle, Cicero and Saint Aquinas
contractual conception of man in society
in a state of nature, man possesses a natural tendency to disrespect - >theory argues that life of men in society is based on a social contract (agreement of wills) that limits the nature of men
-> without this, “men would be in a permanent state of war among themselves”
major contractual theories: Leviathan, Optimism, Realism…
law
set of rules imposed to a group of people indistinctively
objective law
set of rules of social conduct objectively binding on all men = law
-> Positive Law: set of rules regulating social relationships
-> Natural Law: set of rules and principles superior to the Positive Law, which allow measuring the legitimacy or illegitimacy of the Positive Law
(unwritten and is connected to human rights (example: bury the dead and respect them…))
subjective law
as a power is conferred by law to the holder of an objective law, to act or not according to its content = right
e:. through purchase and sale agreement, the purchaser has the right to receive the goods and the seller is entitled to receive the money
state the differences b/w the positivist & naturalist school of though (objective law)
Positivist School of Thought: Natural Law does not exist, or is not true law, therefore, nothing interferes or affects the Positive Law.
Naturalist School of Thought: Natural Law does exist, and is superior to Positive Law
normative social orders
promote harmonization of social activities & solve conflicts of interests
- moral order: order of consciousness and seeks the betterment of the individual
- religious order: order of faith and transcendence, regulates relations established b/w individual and God/s
- social conduct order: order that comprises rules of courtesy and politeness
- legal order: comprises set of legal rules, governing the most important aspects of life in society (most important)
sanctions in normative social orders
remorse for:
- social conduct order
- religious order
- moral order
imprisonment for: legal order
legal order holds 3 principles
principle of freedom = recipients of legal rule are neither required a total loss of
freedom in order to meet such legal rules, nor a relative loss of freedom
principle of plenitude = law, despite not covering all situations of social
life, has a solution for all the issues that may arise (ART 8 CC)
principle of perfection = always assume solutions given by lawmaker are the most accurate (ART 9 3))
differences b/w law & religion
purpose = law refers to relations of men with other
men whilst religion focuses of relations with divinity
nature= law is inter-subjective & religion is intra-subjective
subjective conscience = law is not related to faith
coercivity = not present in religion, only spirital sanctions
religion in portugal
article 41 (freedom of religion) CRP
portuguese state = secular, does not give privilege neither persecutes any religion
differences b/w law & morality
purpose = law aims to improve men by means of rules & morality aims to lead the individual towards the good
nature= law is inter-subjective, morality is intra-subjective
coercivity= morality: psychic coercivity (remorse, guilt)
law: material coercivity (force if necessary)
example where law & morality coincide and where they differ
coincide = self defense (337 CC) & the fact that human life is inviolable (24 CRP)
laws w/out moral meaning = rode code (right when circulating)
immoral legal rules = abortion & euthanasia
differences b/w law & social conduct
social conduct = one-way rule: it does not impose any rights and duties
law = two-way rule: it imposes rights and duties
social coercivity (social conduct) & material coercivity (law)
-> social uses are completely indifferent to Law
legal justice
value or set of values that are assumed in every law
social justice (3)
equality (13, 16-18, 81, 103 CRP)
proportionality (1, 2, 9, 23 n1, 205 n1, 266 n2 CRP)
alterity (1 CRP)
safety
hierarchical lower than justice, but still a value law seeks to ensure
safety vs justice
sometimes we must put aside justice to reach legal safety
- > article 6 CC = ignorance of law is not an excuse
- > res judicata = a matter [already] judged: you reach a point where your case is closed
- > article 12 CC = prohibits retoroactive effect of law (past is safeguarded from new law)
- > statute of limitation: expiry of rights (298 CC)
- > adverse possession: a person who doesn’t have legal title to a piece of property, acquires legal ownership based on continuous possession w/out the permission legal owner.
three dimensional conception of law
law is a set of:
- rules (principles and rules)
- facts
- values:
