¡Descarga Universidad Carlos III de Madrid (UC3M) y más Exámenes en PDF de Derecho solo en Docsity! Lección 6.- The Legal System A.- The idea of legal system B.- Features of legal system. 1) Unity. The search for the last basis of validity of the legal systems. 2) Coherence. Atonomies. Conditions, types and canons to solve them. 3) Completeness. Legal loopholes. Types and canons to solve them. A.- The idea of legal system.- In the previous lesson It has been carried out an analysis on legal norms. However, legal norms do not have sense in an isolated way, but when they are connected with other legal norms. Law, thus, is a set of legal norms, but a special one, a legal system. The idea of law as a legal system has been always opposed, since classic Greece, to the idea of law as justice to the idea of law as justice in concrete situations. The systematic viewpoint of law will be the dominant one since the appearance of legal positivism during the 19th century and the codification movement in continental europe. This proto-positivism will be centered on 3 main ideas: 1) The consideration of legislator as an omniscient and omnipotent rational body capable to foresee every situation that should be regulated (completeness of law) and making it in a coherent way (coherence of law); 2) The identification of Law, exclusively, with legal norms passed by legislative bodies; 3) The defining of judicial function as a mechanical-logical work as applying law as a syllogism, with no need and no power to interpret and create law. These ideas can be better understood if we think that french (and other continental european revolutionaries) fought to overthrow the absolute monarchies and the judicial system supporting them. Thus, after the revolution, with the setting up of the liberal democracy, all the expectations to fulfill the values of the revolution were placed in the legislative body, representing the whole people. Rousseau’s idea of the infallibility of general will supported the idea of legal positivism of an omniscient and omnipotent legislature. And Montesqueieu’s idea of the judge as “only the mouth that pronounces the words of law” supported the idea of the judicial function as exclusively applying the law in a mechanical way. B.- The features of legal system. Of course, modern legal positivism has rejected these ideas of proto-positivism as they were formulated, but even yet, the idea of legal system still is a central notion for the understanding of law and these ideas may be considered valid after some clarifications. The three main features of legal system are unity, coherence and completeness. 1) Unity. The search for the last basis of validity of legal system.- First feature of legal system is unity. This feature allow us to consider different legal rules as part of the same system, and it has been developed by legal positivism. Its best version is Hart’s one. According to Herbert L. A. Hart, the last basis of validity of a legal system is to be founded on the rule of recognition, that is a mix of a rule and a social practice accepted from the internatl point of view at least by the legal operators using the rules of the system (for further explanation see Hart’s complementary material of lesson 5). 2) Coherence. Antinomies. Conditions, types and canons to solve them.- From a logical point of view, coherence means the absence of contradictions, and when referred to legal systems coherence means the absence of antinomies. An antinomy is the situation where two legal rules regulate the same case stating incompatible legal consequences. However, When It is said that legal system is coherent, this doesn’t mean there is no antinomy in the legal system, but that this antinomy can be solved through different instruments of the legal system. Before analyzing the canons to solve the antonomies, it may be interesting to explain the conditions for the existance of an antinomy, and the types of antinomies that can be distinguished. Regarding to the conditions, It seems obvious that for the appearance of an antinomy both incompatible legal rules must belong to the same legal system. Moreover, these two rules must share the same scope of validity, considering as such at least one of these: 1) Temporal scope; 2) Personal Scope; 3) Material Scope Regarding to the types of antinomies, we can make a classification of antinomies according to the degree of incompatibility existing between the legal rules. Thus, using again the deontic operators of legal rules (command, prohibition, permission), we can distinguish the antonomy..: 1) Between a command to do X and a prohibition to do X (opposite relation); 2) Between a command to do X and a negative permission of not
