LESSON I.

LEGAL SYSTEM AND SOURCES OF LAW

Prof. Eliseo Sierra

1. RULE OF LAW

Concept of law
Law can be defined as the whole system of rules, expressing an
idea of order and justice, that everyone in a country or society,
citizens and authorities, must obey. Legal rules can be imposed in
a coercive way (judge, police, army...).

The law identifies previously which punishments apply in the case

of those who “break the law”, “are against the law” or act “as if they
were above the law”.

As a consequence of the obligation of all persons and authorities to

obey the law (and, if necessary, to try to change it¡), a legal system
provides legal certainty (seguridad jurídica) to those subject to the
law:
- Allowing them to plan their lives with less uncertainty.
- Protecting them from the arbitrary use of power (from the whims of
those in charge)

Types of legal rules

 Those which accord rights to citizens and corporations. For
example, most democratic constitutions around the world
include the Universal Declaration of Human Rights. In Spain,
i.e., fundamental rights under the Spanish constitution, like
freedom, equality and so on.
 Those which establish a behaviour to be followed by citizens
and corporations, with prohibitions and punishments. For
example, the Civil Code, the Criminal Code, the Companies
act.
 Most of the rules set out ways of organising the State and its
functioning. For example, rules regarding the functioning of a
public university.

Branches of law
The concept branch of the law is a way to separate and classify
rules according to their content:
 Civil law
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  Labour law
 Administrative law
 Commercial law
 Criminal law
 Tax law
 ...
…
Branches of law are traditionally classified as being part of private
law or public law
 Public law is linked to the functioning of Public administrations
(administrative law, criminal law, tax law, etc.).
Imperium of the Public administration before the citizens.

 Private law deals with the law

- governing citizens (civil law) (contracts, marriage,
inheritance, property and so on)
- and the law governing business (commercial law).
The basic principles of private law are freedom within legal
limits and equality among citizens.

Scope of the application of the law

- State
- European
- International law

The content of the law

The word for law in Latin was ius. So, we find modern words like
justice, judge, jurisdiction, jurist, juridical norms, etc.

Words like “right”, “derecho”, “dret”, “direito”, “droit”, “diritto”, “recht”,

etc. come from the Christianity, from the idea of following the right
path.

Both “ius” and “right” illustrate the necessary moral component

always present in appeals to the rule of law

Law express an idea of order and justice, but Law does not
completely regulates the behaviour of people in a society.

Most social behaviours are not governed by law, such as the family
relations, religion, friendships, etc.: only what is considered essential
in a particular society “becomes law”.

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Law. Exercise 1

Working in small groups, try to imagine this class as a whole country

and as citizens, and decide whether is necessary to pass a
compulsory law in the following topics or, in contrast, there must be
liberty:

 To decide which investments a firm can make.

 To limit the price of the flat rentals.
 To recognize or not the rights of employees, such as paid
holidays.
 To ban pregnant women from smoking.
 To set the salary of the Chief Executive Officer (CEO) of a
firm.
 To oblige friends to help each other financially.
 To set the contribution of the members of the family to
common expenses.
 To recognize the right of minors to a healthy diet, irrespectively
of their parents’ opinion.
 To ban politicians from holding public office if they have
plagiarised their doctoral dissertation.
 To impose the style of the legal haircuts.
 To recognize the free decision of a person to decide the
destination of their assets after death.
 To oblige politicians to resign when they break their election
promises.
 To ban forced marriages in Spain, even when they comply
with the national law of the bride and the groom.

Rule of law
The United Nations General Assembly has repeatedly identified
- “human rights”,
- “rule of law” and
- “democracy”
as universal and indivisible core values and principles of the United
Nations (Mortimer Sellers)

The Universal Declaration of Human Rights, approved by the

Assembly, recognized that “… it is essential if man is not compelled
to have recourse, as a last resort, to rebellion against tyranny and

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oppression, that human rights should be protected by the Rule of
Law”.

These values (human rights and rule of law) are incorporated into
democratic constitutions.
The rule of law entails the impartial pursuit of justice, which requires
an equal concern for the welfare of all members of society.
However, the pursuit of just laws is a difficult undertaking. It is not
easy to decide what is just or not, given that “justice” can vary
across societies and individual citizens.

Rule of law v. rule of men

The battle of the rule of law against arbitrary government takes
place in every human society when those with power seek to
expand their discretion and control.

Arbitrary government uses power without restriction and the power

is maintained in the interest of those in charge or only for a sub-
group, above the others. Therefore, the government is no longer
representative of all citizens.

Commonly, the tyrant says that the law no longer applies, due to
special circumstances or to a foreign enemy. However, more often
than not, the real desire is to fulfil the interest of their own class,
sectoral or personal interest, that is to say: privilege and unequal
treatment of citizenry.

Laws can be changed, in accordance with the established

procedures, but, while in force, they bind citizens and all authorities.
Compliance with the law cannot depend on the whim of those in
authority.

2. AUTOCRACY V. DEMOCRACY: CONSTITUTIONALISM

Autocracy is a system of government in which one person or group
has complete power (no separation or division of powers).
Democracy is a system of government in which all the people of a
country can vote for their representatives. It is based on the fair and
equal treatment of everyone, their right to take part in making
decisions, and the need of a majority to adopt decisions,

Law of the strongest. A weapon can change everything, giving its

possessor the authority to create the law, irrespectively of the

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opinion of the other. According to Hobbes’ theory of natural law, the
natural law is the law of the strongest.

In a democratic country, national sovereignty belongs to the

people, not just to one person or group, and the majority creates the
law through legal procedures.

Normally law is written law.

o The struggle for freedom usually begins with the demand
for written laws, to constrain the discretion of those in
authority.
o Previously to paper, it was common to write the law, for
example, on stones, in order to ensure that everybody
knew it. Examples are the Rosetta Stone in the British
Museum of London and the Hammurabi Code in the
Louvre Museum of Paris.
o Now modern Constitutions are published in official
Gazettes on paper.

Constitutionalism as a guarantee of the separation of powers

The term sources of Law make reference to people who create the
law and the form that the law takes: constitution, regulations, etc.
o Kelsen Pyramid. Hans Kelsen was an Austrian jurist,
who is famous for creating a pyramidal system to order
the law.
 Constitution, laws, regulations, customs, general
legal principles.
 Principle of hierarchy

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