Principle of Law

Private Law Functions of Law

Law is a social infrastructure that binds its members and aims primarily at solving conflicts among them and promoting their beneficial social behavior. Law exists for two overall functions:

• Prevent and solve conflicts among society (negative function of law)
• Promote socially beneficial behaviors (positive function of law)

A lawless society is not actually conceivable, and even if it was, it would hardly stand. As a matter of fact, it would be quickly upset and ruined by the conflicts arising between the members.

Law and Religion

The law exhibits remarkable commonalities with religion; all significant concepts of the modern state are secularized theological concepts. As said by important lawyers, each legal tradition is founded upon a substrate of religious nature which shapes the shared mentality of lawyers and the fundamental traits of the law. In the 18th century, we had a secularization of society and the increasing replacement of religion with the state’s legislature. Since then, religion lost its grip on politics and social life and has been confined to the private sphere of individuals.

The replacement of religion’s social authority with a state constitutionally based on the rule of law took to a large process of juridification of western societies in order to prevent class struggle and avoid political conflicts between individuals or groups. Juridification is the process by which law comes to regulate an increasing number of different activities.

Jurisdiction

The authority of a court or official organization to make decisions and judgments.

Given the nexus between society and law, it is not surprising that law is mutable throughout the world, since it mirrors the immense variety of social and cultural forms which characterize mankind. Because of the economic and political predominance of western societies, they amounted to forge the western paradigm of law which tends to be identified as the law itself. So, every organization not matching the western law might be deemed to be devoid of law at all.

Mute Law and Animal Law

At its historical outset, law consists of a corpus of oral traditions handed down from each generation to the next. For this reason, language and law are strictly correlated. In the history of mankind, law may have preceded language, so also human species existed before the homo sapiens might have had their own law, which therefore would have been mute. Also, animals seem to be organized in groups and therefore they act like members of it, so they might have rights and duties in the society.

Rules and Principles

According to tenets of legal positivism, law consists essentially of rules. This description of law is known as normativism. In the first historical stage of normativism, rules were conceived as commands issued by a king, who threatened to harm those who disobey. However, the imperatives conception of law was criticized because it was argued that it contains traces of subjectivism and also for the fact that the king was exempted from abiding by the law. Primary norms are rules directly affecting the behaviors of legal subjects and the legal effect provided thereof, while the secondary norms are rules that prescribe a sanction for the violation of the first norm.

Law is a set of rules, each characterized by a conditional structure following the IF-THEN approach: IF a state of affairs occurs THEN a sanction is applied. In other words, the sanction is triggered by the state of affairs envisaged by the norm. A rule can be general or abstract, when it is general it is applicable to anyone finding herself in the state of affairs envisaged by the IF-clause, for example, IF a good is stolen THEN the thief shall be convicted or condemned to give it back, this rule does not provide for the fact that a good is stolen by a given Tito or Caia, but for the fact that a good is stolen by anybody. Instead, it is abstract when it is applicable to whatever event or behavior matches the state of affairs envisaged by the IF-clause, so it doesn’t provide for the fact that this or that specific good is stolen, but for the fact that any good is stolen.

Types of Rules

• Legal rules: Norms characterized by a conditional structure, formulated in general and abstract terms. They are applied in a yes or no way. They have a condition part which states when the rule is applicable and a conclusion part which indicates what the consequences are when the rule is applied.
• Mandatory rules: Rules which may not be set aside via an agreement between their addressees. Most public law consists of mandatory rules. In this case, the supremacy of public interest is over the interest of the individual.
• Default rules: Rules which may be set aside via agreement between their addressees. They can be derogated by parties and they supplement private autonomy when there is no agreement between parties. Most private law consists of default rules.

Legal System

A legal order or legal system is a collection of rules. They comprise primary rules are rules of conduct; they tell you what you are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience, like the criminal law rules that prohibit theft. But a legal system also requires secondary rules, which govern the change to primary ones and provide dynamism, certainty, and efficiency of the law. The secondary rules are divided in two, the first type regulates the possible change of primary rules, ensuring the dynamism of the legal system. The second type deals with the enforcement of the primary rules ensuring the efficiency of a legal system. Those rules that regulate the possible change of the primary rules, ensuring the dynamism of a legal system are called sources of law.

Legal norms are binding rules or norms of conduct that an organization of sovereign power promulgates and enforces to regulate social relations. They can’t be seen one apart from others, they must be seen all together as a group. Norms are staked in a hierarchical order where each of them depends on the one positioned above it; a norm is valid only if it pertains to such order called legal order. Legal norms:

• Are intended for the regulation of social relations
• Determine the rights and duties of subjects of legal relations
• Have a binding character (normativity)
• Are enforceable by state impositions

Norms are behaviors and attitudes that are typical of or approved within a group. Generally speaking, anything that most members of a group consider to be normal and right. Rules are guidelines for achieving some goal. They can be formal (written out for everyone to read) or informal (passed from person to person verbally). Legal effect: the legal consequence that the occurrence of an event or behavior legally relevant produces, such as to create, extinguish or change someone’s rights and someone else’s duties.

Legal systems normally aspire to be complete, in the sense that no gaps can be encountered in its primary rules, since they regulate any relevant case, consistent, in the sense that no contradictions can be encountered in its primary rules, since each relevant case leads to just a single legal outcome. However, this is not always the case. For this reason, rules on gap-filling and antinomies are provided. Gaps in primary norms may be filled by secondary rules authorizing judges either to create new rules or to extend the scope of the ones already in place.

Some instruments to fill in lacunae when a specific case is not governed by any law are:

• Discretionary power of judges: This method is the first option that has been used in history under Anglo-American jurisdiction, so common law jurisdiction. Under this argument, judges exercise law-making power. By contrast, civil law jurisdictions have adopted normative devices to extend already existing law to unregulated cases, gathered under the institution of analogy.
• Analogia legis: Application of legal rules governing similar cases.
• Analogia iuris: Application of the general principles of law, this is used when no rules that govern similar cases are found.

The following are three criteria to solve antinomies (when rules governing the same case collide). Inconsistencies in primary norms may be solved by secondary rules authorizing judges to apply only one of the colliding primary norms:

• Hierarchical: The superior rule prevails over the lower, for example, the constitution over ordinary statutes.
• Content-based: When the first option fails because both colliding norms are at the same level, the rule with the narrower scope prevails over the one with broader scope.
• Time-based: If even the second option fails, the rule that has been more recently enacted prevails over the older one.

Legal Principles

In order to exhaustively describe a legal system, rules as a concept must be accompanied by principles, which are guidelines that express and guarantee the rationality of law. Principles do not provide for an instant fact and therefore, unlike norms, they don’t directly apply to practical cases. Legal principles are norms characterized by a non-conditional structure. They apply in a pervasive way and need to be balanced against each other. Legal principles constitute the guidelines that express and guarantee the overall rationality of a legal system and have an interpretative/supplementary (are used by judges to fill gaps in the legal system) and corrective function (when they are mandatory, they can call into question the validity of another legal rule).

Due to the high level of generality and abstractness of their content, they are often perceived as indeterminate and vague. Examples include the principle of good faith, which is also applied in contracts. Even if the principles are formulated by constitutional norms, there is no exhaustive catalog in the legislation that encapsulates and enumerates the principles. From a structural point of view, principles are characterized by the vagueness of their preceptive content, so principles prescribe an attitude that materializes in countless specific precepts while rules prescribe a specific conduct.

A norm may incorporate a principle within its structures so that judges are entrusted with the power to provide a discretionary solution to the specific case that falls within their scope of application, these are called general clauses. It is also commonly believed that principles derive from the moral values positioned at the foundation of a society, so when a judge applies a legal principle, she intends to justify her decision on the basis of a moral value that exists in the society. We can say that rules are based on a mechanical subsumption of the case into a state of affair, so are either applicable in all respects or not applicable at all, on the contrary principles are susceptible to discreet application as they must always be balanced with each other and they establish themselves in an intrinsic way.

Juridical Positions, Right and Duties

Juridical positions are concepts used in order to map what legal subjects can or cannot do, what they must and must not do. The conditional structure of a norm is really complex in particular when the state of affairs consists in a whole nexus of natural events or human behaviors. This is why a given case is regulated by many norms.

Juridical positions belong to one or more legal subjects who hold them and are called holders. A legal subject is an entity capable of holding rights or duties. Among legal concepts, a prominent role is played by rights and duties which pertain to the broader genus of juridical positions. Juridical positions mark what the holder may/can do or shall not/cannot do and what she shall/must do and shall not/must not do.

The law puts a particular bond between the holder A of a position may do /can do and the holder B of a corresponding position shall do/must do, this legally relevant bond is called legal relation. For example, the creditor and the debtor are two juridical positions where the first is the holder of the credit and the second one is the holder of the debt. Between them, there is a legal relation.

Forms of positions:

• Subjective rights: Cluster of power/privileges, consisting of a claim towards someone else, directed to pursue the holder’s vested interest.
• Power: A juridical position of “can do” entitling the holder to consciously and voluntarily change a juridical position (creating a new one, altering or extinguishing a pre-existing one).
• Power-right: The power to change someone else’s juridical position granted for the sake of the holder’s own interest. The juridical position that has power is called liability. The other holder must protect themselves from the abuses of power.
• Privilege or freedom: A juridical position of “may do” which allows the holder to do something. For example, the owner of a land has the privilege to enter the land. A specific privilege can also be voluntarily vested in someone else, in this case, is termed a license or permission.

Subjective Rights

The most prominent position of can do are the rights. The term right does not coincide with the term law. When used in an objective sense, it refers to the law; when used in a subjective sense, it refers to a right. A subjective right consists of a claim towards someone else, aimed at pursuing the vested interest of its holder, so a right protects the rightsholder's interest in acquiring a good against someone else’s potential encroachment.

Rights consist in a cluster of powers and privileges. Some rights encompass a large number of powers and privileges while others encompass only a few of them. Rights can be:

• Patrimonial/non-patrimonial: Depending on whether or not the good owed to or owned by the rightsholder can be exchanged for a consideration.
• Disposable/non-disposable: Patrimonial rights are usually disposable, meaning their current holders can transfer them to someone else in exchange for a consideration. Non-patrimonial rights are non-disposable, meaning they are protected by an inalienable rule (human rights).
• Relative/absolute: A right is absolute when it entitles the holder to demand that all others refrain from interfering with the possession of the good owned by the right holder herself. An example of an absolute right is the right to freedom and the property right. Relative rights are rights that can only be asserted against a particular person or several specific persons. For example, a relative right is represented by a creditor because it entitles the credit holder to claim an economic performance that is to be rendered by someone else. The other party has a debt which obligates her (the debtor) to render the performance due to the creditor. An obligation is the relationship between debtor and creditor.

Absolute rights are characterized by an injunctive content, as they attribute to their holder the power to exclude anyone else from the possession of a specific good. The holder of an absolute right is entitled to an injunctive claim. The patrimonial rights are property rights which may be tangibles or intangibles.

• Property tangibles: Consists in the ownership and a certain number of rights in someone else’s property. The latter consists of the possession of someone else’s property (usufruct and servitude) or in providing collateral for a credit owed by the holder (pledge and mortgages).
• Property intangibles: Consists of intellectual property (copyright) and industrial property (patents and trademarks).

The non-patrimonial rights are rights of personality which can be classified as human rights, including privacy, name, image, etc. The prescription is the lapse of a certain time fixed by the law for each kind of right that may bring extinction. Within common law systems, prescription is usually conceptualized from the perspective of the relevant sources of law, namely the statutes of limitation.

Juridical Acts and Facts

Legal norms make specific events or behaviors legally relevant. An event or a behavior has a legal consequence if, and insofar as, a norm attaches legal consequences to it. An event or a behavior having legal relevance is considered juridical facts.

By facts, we denote naturalistically caused events or human behaviors producing specific legal effects, where (if having a human origin) it is irrelevant whether they were brought about intentionally or not.

By legal acts, we define intentional actions which the law considers as the basis for the production of given legal effects. Among this, we could further distinguish among:

• Mere acts: Where the action itself is intentional, but the legal effects are produced regardless of whether the author intended to bring about such legal consequences or not.
• Juridical acts: Which produce their peculiar legal effects only if the action was performed intentionally as a means to achieve specific consequences; said otherwise, the production of legal effect is not a mere by-product of the action, but rather the reason why the latter was undertaken.

Legal Subjects

Legal personhood is defined as the capacity to hold rights and duties. Those whom the law grants as legal personhood are called legal subjects, and are usually divided into natural persons and legal persons:

• Natural persons: All human beings are legal subjects and as such they are categorized as natural persons. They are considered legal subjects at birth. There are some limitations that may occur when a person is stateless; in this case, some rights are not granted. In contemporary law, legal personhood is acquired by a human being at birth. Fetuses, even if they are not considered natural persons, have some rights, like the right to health.
• Legal persons: Are organizations set up to undertake an activity either for profit or for non-profit. They can be established under public law (state) or under private law (club). For-profit legal persons aim to earn profit and distribute it to their owners, instead non-profit legal persons pursue aims that have to do with science and culture (they expect to have some tax-exemption). Under private law, legal persons may be incorporated or unincorporated legal entities:
  • Corporations: Legal entities that are completely autonomous and separated from the owners (stakeholders) as to their property and organization. So, the owners are not personally liable.