Introduction To Private Law

Introduction To Law

Textbook: P. Sirena. Introduction to private law, Il Mulino, 2020.Chapters: 1, 4, 5, 6, 7, 8 (only 6, 6.1, 6.2) and 11.

What is law in general?

We can find numbers of definitions of law by reading texts and documents coming from different cultures and different times. For instance:

• Dictionary of Han's Dynasty (III century b.C) Law is punishment.
• Carl Marx: Law is a tool of oppression to exploit the working class.
• John Austin: A laid down for the guidance of an intelligent being by an intelligent being having power over him.
• Oliver Wendell Holmes: The prophecies of what courts will do.

Modern definitions of law:

• US legal dictionary: A Body of rules of conduct of binding legal force and effect, prescribed, recognized, and enforced by a controlling authority;
• Oxford Dictionary: The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties;
• Sirena (or book): Law is a social infrastructure which binds its members in that aims primarily to solving conflicts among them and secondarily to promoting their beneficial behavior.

Recurrent features:

• Law is somehow connected to prescriptions and sanctions;
• Law is always in relation to society.

Every man needs to get into relation with others. Humans are ‘society beings’ at least in the sense that getting what we need and wish requires to engage ourselves in relation with other members of our community. Humans are relational beings.

We use to call society the typical organization of a community of men and women.

Like any other organization, society needs a certain level of stability. In order to reach stability we need rules governing both the organization of the community, and the relations between the members, that we call social order.

We need rules establishing what is permitted and what is prohibited, to what extent a member of the society is free to do whatever he wants and what kind of behaviors are mandatory, and so on. Without such rules no society can resist stable and even exist.

We have numbers of different kinds of rules dealing with the organization of the society and the relations among its members (religion, morality, customs ecc). They are all techniques of social control.

In our daily life we can appreciate that sometimes these rules match perfectly, sometimes they differ or even collide.

EXAMPLES:

• Helping poor and needy people is a religious and moral rule, but not a legal rule;
• Leaving your seat to a pregnant woman is a moral rule (good manners), but neither a religious nor a legal prescription;
• Keeping your words, or paying your dues are at the same time moral, religious and legal rules;
• Refusing blood transfers is a religious rule but not a legal rule.

The relations among these set of rules can be indifference, coincidence and conflict.

What is the key feature of a legal rule? What is the difference between a rule of law and any other social rule?

It is commonly said that the distinctive character of law is the provision of a sanction, a negative consequence in case of violation of a legal rule, such as damages, imprisonment, fines, restitutions and so on.

The sanction in itself is not a typical consequence of infringing a rule of law, because all the social sets of rules provide for such negative consequences.

We could say that the law provides for particularly strong negative consequences, but again it is true also for those who follow a religion in which - for instance - eternal damnation is connected to single behaviours.

We could say that the general scope of a rule of law makes the real difference: a rule of law is meant to be applied to everyone in a community. But it is not true; it occurs that a certain law applies only to a limited number of people in the society.

The rules of law are the only social rules whose duties must be fulfilled and whose sanctions are inflicted by entities that can legitimately use the force to make people respect the law.

The legitimate use of the force is what makes a social rule a rule of law, and what makes the rules of law so effective and reliable to achieve the goal of the social order.

Given a society, the whole of the applicable rules of law in that society is called legal system. The legal system is therefore the law applicable to that specific community of men and women, to that particular society.

Nowadays, the most significant society is the national State, and so the most important legal systems in the world are the national legal systems which are the products of the State sovereignty.

Notwithstanding the outlined differences, the two systems incline to converge more and more:

• In common law countries Parliaments enact more and more written law which applies with preference to the judge made law in case of contrast between the two.
• In civil law countries the authority of precedents of the Superior Courts persuades the inferior judges as a matter of fact.

PERSON

When we analyse how an individual right works in practice, we must take into account that every right is held by a person, who is said to be entitled to that right. No rights can be thought if not connected to a person or a group of persons who hold it. A right without a holder is a nonsense in law. Thus it is necessary to understand who or what can be considered as a person to the law.

Natural Person

The expression “natural person” in legal language means a person in biological sense, a human being. Every human being, since the very beginning of his life, is a person to the law, and therefore can be a holder of a right.

The possibility of being holder of a right is called legal capacity. For every human being, once born, is a person in legal language, therefore every human being has legal capacity. This last statement is one of the most important achievements of the modern age of the law. In the past not all human beings were considered persons in a legal sense, because some of them had no (or limited) legal capacity (e.g. slaves, foreign people, people belonging to different religions). Legal capacity is nowadays recognised to all men and women due to the general acquisition in the modern legal systems of the principle of formal equality.

What does ‘formal equality’ mean?

Formal equality means that every human being is equal to every other human being, no matters the differences in race, language, religion, sex, social conditions etc.

Therefore we can say that it is generally acknowledged that legal capacity can be acquired at birth, no matters the personal, social and familiar condition of the born. In many legal systems it is possible to be entitled to a right even before being born, in the sense that even before birth a human being is not without legal recognition as a potential recipient of a right.

Example 1 It is possible to give a child who is not born or who is only conceived a property interest by a will (“I leave 1.000,00 euros to my nephew”). Of course, if the child is never born (alive), things will remain as if it had never existed. But if the child is born alive, the provision made in his favor enters into force. The right is of course attributed under condition of birth, but it is already attributed to the still-not-born person.

Governments of some Far East countries say that Asian values are significantly different from western values, included a strong sense of community that sacrifices personal freedoms for the sake of social stability and prosperity, and therefore authoritarian governments are tolerated more in those cultures than in Western culture.

The Universal approach replies that:

• in many cases those perplexities hide chagrin or exploitation of the freedoms and Liberties of the people of those countries;
• Declarations like the UDHR have been drafted not only by people coming from western countries and cultures, but also by people belonging to different traditions, including Far East and Arab League representative, and received advices from independent like Gandhi.

There are many situation potentially involving fundamental rights that are under debate in the international scenario in the last years.

Environmental rights

Three perspectives confront one each other:

1. The right to a healthy or adequate environment is in itself a human right;
2. Environmental interests are just an aspect of already existing human rights (right to Life, right to health, right to private family life);
3. The right to a healthy environment cannot be put before the interest to the best possible development of human wealth.

Death Penalty

The UDHR states that everyone has the “right to life”. According to many human rights activists, death penalty violates this right.

The UN came to a formal state of mind few years ago, under a strong pressure from some States, first of all Italy, to common death penalty as such and persuade all the States still using death penalty to abolish it. A long way must be walked to get the abolition of death penalty due to the strong opposition of many countries around the world.

CONSTITUTIONS

Constitutions are other sources of fundamental rights. In this case we do not have the problem of the force and effectiveness of fundamental rights with respect to the people who are holder of constitutional rights and must respect other people’s rights, since all the people living in the State are subject to the Constitution, with no exceptions.

If we take a look at the most important Constitutions in terms of history and influence, we can immediately notice that fundamental rights are not their only content. We discover that almost always the Constitutions hold the rules of functioning of the main Powers of the state: Legislative, Administrative and Judiciary Powers.