SUMMARY OF INTRODUCTION TO THE STUDY OF LAW

EDUARDO GARCIA MAYNEZ

CHAPTER I

CONCEPTS AND RULES OF NATURAL LAW

The word standard is often used in two senses:

a broad one: a latu sensu applies to any rule, to any rule of behavior, obligatory or not;
another strict one: strico sensu corresponds to what imposes duties or confers rights.

Practical rules whose compliance is optional are called technical rules.

Those that are mandatory or are attributed with powers are called standards. These impose
duties or grant rights, while enunciative judgments always refer, as their name indicates, to
what is.

Practical rules of optional compliance prescribe certain means, with a view to achieving certain
ends.

Enunciative judgments are divided into true and false. In relation to norms we do not speak of
truth or falsity, but of validity or invalidity.

Natural laws are enunciative judgments whose purpose is to show the unfailing relationships
that exist in nature.

Therefore, natural law is a judgment that expresses constant relationships between

phenomena.

The following differences exist between physical laws and rules of conduct:

a) The purpose of natural law is the explanation of constant relationships between

phenomena: the purpose of the norms is to provoke behavior.

Natural laws unfailingly refer to what is, while norms state what ought to be.

b) Natural laws imply the existence of necessary relationships between phenomena.

The physical law states constant relationships, i.e. processes that always unfold in the same
way.

Unlike natural laws, which express indefectible relationships, rules are not enforceable in an
unenforceable manner.

c) A natural law is valid when it is true, that is to say, the relations to which it refers actually
occur, in the same way that it indicates. For the laws of physics to be valid, it is indispensable
that the facts confirm them.
The so-called "statistical laws" are laws in the improper sense, because of their very contingent
character. Rather than authentic legalities, these are generalizations whose value depends on
the degree or extent to which experience confirms them.

According to the doctrine of natural law, there are also legal norms and principles to which
correspond an absolute value.

It should be noted that every duty is someone's duty. Or, expressed in another way: those
imposed by an imperative are always duties of the subject. This is called obligated. Obligee is,
therefore, the person who must perform (or omit to perform) the conduct ordered (or
prohibited) by the concept.

Kant defines it as "the necessity of an action out of respect for the law".

According to the Kantian Theory of Empires; Judgments that postulate duties are divided into
categorical or hypothetical. The former order unconditionally; the latter conditionally.

Categorical imperatives are those that command an action by itself, as objectively necessary;
hypothetical, those that prescribe a conduct as a means to achieve a certain end.

Categories can be positive or negative, i.e., mandates or prohibitions.

That of the hypothetical to be expressed in terms: "if you want to achieve such and such an
end, you must employ these or those means."

Those in the second group share a common assumption, namely that a specific purpose is
desired.

Two kinds of hypothetical imperatives: the principles of skill, or technical rules, and the advice
of sagacity, or pragmatic imperatives.

According to the above doctrine, the rules of art or principles of skill are authentic norms.

Rules of conduct express a conditional necessity when they indicate the means that must be
used to achieve a certain end. These principles are usually formulated in an imperative
manner, but they are not rules, since they do not impose duties.

The technical precepts do not establish duties; they simply show the means that must be put
into practice to achieve certain ends. They are not rules, but hypothetical enunciations.

The application of a technical rule is sometimes mandatory for a subject. In such a hypothesis,
the duty to observe it does not derive from itself, but from a rule.

According to Nicolai Hartmann, there are three different moments in the approach and
relation of ends: the first is the choice of the end. The second corresponds to media selection.
The third: the relationship

The rules of the arts are not norms, but there are imperatives that conditionally express a
duty.
A rule establishes a conditional duty when it makes the existence of such a duty dependent on
the relation of certain assumptions.

The normative assumption is, consequently, the hypothesis on the realization of which the
birth of the duty established by the norm depends.

Every generic normative judgment contains one or more assumptions.

Also the so-called categorical ones have assumptions, the relation of which actualizes the
obligations they impose.

In view of the relations of its assumptions, every rule is hypothetical.

Abstract legal precepts always have one or more assumptions, on the relation of which certain
normative consequences depend.

CHAPTER II

MORALITY AND LAW

The difference between moral norms and legal precepts lies in the fact that the former are
unilateral and the latter are bilateral.

The unilaterality of ethical rules consists in the fact that there is no other person authorized to
demand the fulfillment of their duties from the subject to whom they are binding. Legal rules
are non-bilateral because they impose duties correlative to powers or grant rights correlative
to obligations.

The obligor is called the passive subject of the relationship; the person authorized to demand
from the obligee the observance of the rule is called the active subject, entitled, entitled or
pretender. The taxpayer's obligation is a debt insofar as the claimant has the right to demand
performance of the obligation.

Right, in a subjective sense, is the possibility of doing (or omitting to do) something.

The right in the subjective sense is a possibility, because the attribution of the right to a subject
does not imply the exercise of the right.

A conduct is good, according to Kant, when it agrees not only outwardly, but inwardly, with the
ethical rule.

The incoercibility of morality is usually opposed to the coercibility of law. Moral duties are
incoercibles.

Coercibility does not mean, in our terminology, the existence of a sanction.

By coercibility we mean the possibility that the rule may be complied with in a non-
spontaneous manner, and even against the will of the obligor.

Autonomy means self-legislation, spontaneous recognition of an imperative created by one's

own conscience. Heteronomy is subjection to the will of others, renouncing the faculty of
normative self-determination. In the sphere of a heteronomous legislation the legislator and
the addressee are different persons; in front of the author of the law there is a group of
subjects.

CHAPTER III

LAW AND SOCIAL CONVENTIONS

The most important examples of this kind of rules are the precepts of decorum and politeness,
the requirements of etiquette and fashion and, in general, all rules of customary origin and
unilateral structure. Social conventions are based on custom, that is, on the frequent
repetition of a certain behavior.

Attributes common to the rules and precepts of law. The first of the similarities lies in their
social character. It would be pointless to talk about the social duties of an asylum seeker.

A second point of contact we find in the exteriority-interiority, to which we alluded when

trying to distinguish law and morality, is also found between conventional rules and ethical
norms.

A third common note is the absolute claim of validity. These are not invitations or advice, but
demands that require unconditional submission, regardless of the acquiescence of the
obligors.

Generally, conventionalisms are tactical requirements of collective life, i.e., they lack an
express and absolutely clear formulation.

Human activity - says the Italian jurist - can be subject to obligations that sometimes have a
typically moral nature and sometimes assume a juridical character. The rules that create the
former are always unilateral; those that establish the latter are bilateral.

Conventionalisms do not constitute, according to the above, a special class of norms, but
belong, commonly, to the moral sphere, in that they do not empower anyone to demand the
observance of the obligations they postulate.

According to Gustavo Radbruch's Thesis; it denies the possibility of conceptually distinguishing

legal norms and rules of social treatment.

Law, morality, religion, in a word all forms of culture, have a similar orientation and always
tend to the achievement of values. But if we ask which ones serve as a goal for
conventionalisms, we will not be able to discover them, simply because they do not exist.

"The cultural concepts referring to a value, try to define themselves with the help of the idea
to which they are oriented....

According to the Thesis of Rodolfo Stammles, the norms of law and social conventions must be
distinguished according to their different degrees of validity. The former are intended to be
unconditionally and absolutely valid, independently of the will of the individuals; the latter are
invitations that the collectivity addresses to the individual, inciting him to behave in a certain
way.
"The legal will, due to its autarchic character, prevails over the conventional rules with their
effectiveness as simple invitations....

According to Rudolph Jhering's thesis, "If in another time, before my studies on conventional
rules were deepened, I had been asked where the difference between conventional rules and
law lies, I would have answered: only in the diversity of their binding force. Law rests its own
on the coercive, purely mechanical power of the state; the uses of psychological coercion of
society.

According to Félix Somlón's doctrine, legal precepts and social conventions must be
distinguished according to their different origins: the former are the work of the state; the
latter are the creation of society.

According to the Thesis of Luis Recasens Siches; Social uses and ethical precepts have the
following points of contact.

1° It lacks coercive organizations aimed at overcoming the resistance of unruly subjects.

2° Its actions do not tend to enforce compliance with the infringed rule.

Morals and uses differ:

1° In that the former considers the obligor in his individuality, and the latter refers to him as a
"subject-functionary" or "interchangeable" member of a group.

2° Morality demands an essentially internal conduct, and uses a fundamentally external

behavior.

3° The first has ideal validity; the second has social validity.

4° Morality is autonomous; conventionalisms are heteronomous.

Uses are similar to law:

1° in its social character

2°in its exteriority

3° in its heteronomy

In our opinion, the distinction between legal regulation and social conventions must be made
taking into account the bilateral nature of the former and the unilateral nature of the latter.

Summarizing the above developments, we can state that conventionalisms coincide with legal
norms in their external nature, but differ from them in their unilaterality. On the other hand,
they coincide with the moral ones in their unilaterality.

Exteriority and bilaterality are the attributes of law; unilaterality and interiority, those of
morality; exteriority and unilaterality, those of conventionalisms.
CHAPTER IV

MAIN MEANINGS OF THE WORD LAW

Law, in its objective sense, is a set of rules. In other words, rules that, in addition to imposing
duties, grant powers.

The subjective right is a function of the objective right. The latter is the rule that permits or
prohibits; the former, the permission derived from the rule. The subjective right is not
conceivable outside the objective right.

We call the current legal order the set of imperative-attributive norms that at a certain time
and in a certain country the political authority declares obligatory. The law in force is made up
of both the rules of customary origin recognized by the public authorities, as well as the
precepts of formula. The validity always derives from a number of assumptions

Not every law in force is positive, nor is every positive law in force. The validity is a purely
formal attribute, the seal that the state stamps on the customary, jurisprudential or legislative
legal rules sanctioned by it. Positivity is a fact that lies in the observance of any precept,
whether in force or not. Custom not accepted by the political authority is positive law, but
lacks formal validity. The provisions created by the legislator are in force in any case.

The validity of each legal system has a series of sociological assumptions. And the first and
fundamental one is the existence of the state.

The natural is valid by itself, when it is intrinsically just; the positive is characterized according
to its formal value, without taking into consideration the justice or injustice of its content. Any
precept in force is formally valid.

Natural law are rules whose value does not depend on intrinsic elements. The natural one is
the only authentic one in force and can only justify itself to the extent that it carries out the
dictates of that one.

The foundation of law lies in power.

Under the title of sociological conception of natural law we can group all the theories that seek
the foundation and origin of natural law in the attributes that man possesses as a "political
animal".

The classical natural law of the seventeenth and eighteenth centuries, the true law has its
foundation in nature, and therefore represents a set of sterile and immutable principles
compared to the positive legal systems.

If we combine the three concepts we have been alluding to, we would discover 7 different
possibilities:

1- Formally valid law, without positivity or intrinsic value.

2- Intrinsically valuable law, endowed with validity or formal validity, but lacking positivity.
3- Intrinsically valid law, not recognized by the political authority and devoid of effectiveness.

4- Formally valid right, without intrinsic value, but with factitious value.

5- Formal and intrinsically valid positive law.

6- Intrinsically valid, positive law, but without formal validity.

7- Positive law (customary, without formal validity or intrinsic validity).

First sector isolated legal precepts.

Sector number two is the case of fair legal standards.

Third sector norms or legal principles for the state do not have such character, precisely
because they have not been recognized.

The fourth case of a precept endowed with formal validity occurs, for example, when a law or
an (officially recognized) custom is unjust.

Sector number five represents the ideal case, it cannot, however, make the obligatory force of
the mandates depend on their concordance with the demands of justice, let alone empower
particular hoops to condition them in such a sense of obedience.

The sixth case corresponds to customary rules not recognized by the state, this possibility
exists both from the point of view of the doctrine of natural law and from that adopted by the
Roman-canonical theory.

The latter hypothesis is only admissible in light of this theory.

The customary rules that the state does not admit, from an official point of view, have no legal
significance.

Is natural law a code of abstract and immutable precepts?

The first thesis, now definitively overcome, lies in conceiving the natural order as a finished
system of unchangeable and perennial principles, paradigm and model of all positive law, real
or possible.

The contrary doctrine-the only true one, in our opinion-sees natural law as the just regulation
of any concrete situation. According to the first point of view, natural law is a set of abstract
principles; according to the second thesis, it cannot be codified or formulated because this
would imply prior knowledge of each of the cases susceptible of regulation.

A codified natural right would cease to be absolutely just.

Aristotle has explained this more clearly: "The equitable and the just are one and the same
thing; and both being good, the last difference between them is that the equitable is better
still. The difficulty lies in the fact that the equitable being just, is not the legal just, but a
blissful rectification of the rigorously legal justice.
CHAPTER V

THE FORMAL SOURCES OF THE LEGAL SYSTEM

In legal terminology, the word source has three meanings that must be carefully distinguished
by formal source we mean the processes of creation of legal norms.

We call real sources the factors and elements that determine the content of such rules.

The term historical sources, finally, applies to documents (inscriptions, papyrus, books, etc.)
that contain the text of a law or set of laws. In this sense it is said, for example, that the
institutions, the digest, the code and the novels, are sources of Roman law.

According to the most generalized opinion, the formal sources of law are legislation, custom
and jurisprudence.

In countries with written law, legislation is the richest and most important of the formal
sources. We could define it as the process by which one or more organs of the state formulate
and promulgate certain legal rules of general observation, which are given the specific name of
laws.

In the modern legislative process there are six different stages, namely: initiative, discussion,
approval, sanction, publication and initiation of the legislative process.

a) Initiative: This is the act by which certain government agencies submit a bill to Congress for
its consideration. The right to initiate laws or decrees is vested in:

I. To the President of the Republic.

II. To the deputies and senators of the congress of the union.

III. To state legislatures.

b) Discussion: It is the act by which the chambers deliberate on the initiatives, in order to
determine whether or not they should be approved.

"The formation of laws or decrees may begin indistinctly in either of the two chambers, with
the exception of bills dealing with enterprises, contributions or taxes, or with the recruitment
of troops, all of which must first be discussed in the chamber of deputies."

The chamber where a bill is initially discussed is usually called the chamber of origin; the other
chamber is called the revising chamber.

c) Approval: It is the act by which the chambers accept a bill. It can be total or partial.

d) Sanction: this name is given to the acceptance of an initiative of the executive branch. The
sanction must be subsequent to the approval of the bill by the chambers.

e) Publication: It is the act by which the law already approved and sanctioned is made known
to those who must comply with it. The publication is called Diario Oficial de la Federación.
"Custom is a usage implemented in a collectivity and considered by it as legally binding; it is
the law born customarily, the jus moribus constitutum".

Common law has two characteristics:

1° It is made up of a set of social rules intended for a more or less long term use; and

2° Such rules become positive law when the individuals who practice them recognize them as
binding, as if they were a law.

If we examine the relations that mediate between custom and law we will discover, according
to Heinrich, three different forms of customary law, namely: 1 delegating. 2. delegate. 3.
derogatory.

"The delegating is given when by means of the unwritten legal rule a certain instance is
authorized to create written law."

We speak of delegated customary law in those cases in which the law refers to custom for the
solution of certain controversies.

"The delegated customary cannot be contrary to the precepts of the law. The delegation
established by the legislator is neither superfluous nor unimportant, as is sometimes claimed.
It serves, at least, to dispel any doubt about the validity of certain popular uses and vigencias."

The case of the derogatory custom. Heinrich admits the possibility that it may be formed even
when the legislator expressly denies its validity, as occurs, for example, among us.

"Custom is distinguished from usage in the technical sense, in that it is an autonomous source
of law, while usage applies only because a rule of law makes express reference to it. Use,
therefore, is not in itself a source of law. Rather, it serves only to give content to a specific rule
of law, which gives effectiveness. Also the use in the technical sense supposes the existence of
a subjective element which, however, is less intense than the opinion you need, and consists
only in the condition of the generality of the use. In this case the formal element is found in
the rule conferring the use."

The word jurisprudence has two different meanings. In one of them it is equivalent to the
science of law or theory of the positive legal order. On the other hand, it serves to designate
the set of principles and doctrines contained in court decisions.

As far as our law is concerned, we can therefore speak of binding and non-binding
jurisprudence. In relation to the authorities mentioned in these precepts, the jurisprudential
theses have the same normative force of a legal text. These theses are of two kinds: either
interpretative of the laws to which they refer or integrating their gaps.

Individualized rules, which, as their name indicates, only apply to one or more individually
determined members of the class designated by the concept-subject of the general precepts
on which they are based.

The following are individualized: judicial and administrative resolutions, wills and contracts;
and, in the international order, treaties. Just as in the case of generic precepts their creation is
conditioned by a series of formal requirements, in the case of individualized precepts there are
also a series of conditions of validity, which allow us to identify the processes of the creators of
such rules.

The name doctrine is given to the scientific studies that jurists carry out on the law either for
the purely theoretical purpose of systematizing its precepts, or for the purpose of interpreting
its rules and pointing out the rules of its application. Since the doctrine represents the result of
a speculative activity of individuals, its conclusions have no binding force, no matter how great
their prestige or how profound the influence that their ideas exert on the author of the law or
the authorities in charge of applying it.

Doctrine can, however, be transformed into formal sources of law by virtue of a legislative
position that grants it such character.

CHAPTER VI

CLASSIFICATION OF LEGAL NORMS

There are as many classifications as there are division criteria. But the selection of these
should not be capricious.

Classifications only have value when they respond to the requirement of practical order or
systematic needs.

We will group the rules of law:

a. From their point of view of the system they belong to;

From the point of view of belonging or not belonging to any legal system, the precepts of law
are divided into national and foreign. But it may happen that two or more States adopt (by
means of a treaty) certain common rules, aimed at the specific regularization of legal
situations. These rules are then referred to as uniform law.

In principle, those that belong to the legal system of a country apply only in the territory of
that country.

b. From the point of view of its source;

Those created by special bodies, through a formally regulated process, are called laws or rules
of written law; those deriving from custom are called common law, or unwritten law; those
deriving from the activity of certain courts are called, finally, jurisprudential law.

c. From the point of view of its spatial scope of validity;

The scope of validity of the rules of law must be considered, according to Kelsen, from four
points of view: spatial, temporal, material and personal. The spatial scope of validity is the
portion of space in which a precept is applicable.

d. From the point of view of its temporal scope of validity;

Legal rules may be of definite or indefinite duration. The former as those whose temporal
scope of formal validity is established beforehand; the latter, as those whose period of validity
has not been established from the beginning.

e. From the point of view of its material scope of validity;

Legal precepts are grouped into public law and private law rules. The former are divided into
constitutional, administrative, criminal, procedural and international; the latter into civil and
commercial.

f. From the point of view of its personal scope of validity;

The rules of law are divided into generic and individualized. Generic are those that bind or
empower all those included within the class designated by the concept-subject of the
normative provision.

Not all standards are valid for all people. Because of their characteristics, some standards will
be applicable to a specific group or to a single individual.

g. From the point of view of their hierarchy;

They belong to a legal system and can be of the same or different rank, and are divided into

Constitutional norms.

Ordinary rules.

Regulatory standards.

4. Individualized standards.

h. From the point of view of its sanctions.

i. From the point of view of its quality;

From this point of view, they are divided into positive (or permissive) and negative (or
prohibitive). They are positive, those that permit certain conduct (action or omission);
negative, those that prohibit certain behavior (action or omission).

j. From the point of view of their complementation relationships;

There are legal rules that have full meaning by themselves, while others only have meaning
when they are related to precepts of the first type when a rule of law complements another, it
receives the qualification of secondary.

k. From the point of view of its relations with the will of individuals;

Tax rules and dispositive rules.

They are taxable those that are binding in all cases on individuals, regardless of their will.
Dispositive are those that may cease to apply, by express will of the parties, to a specific legal
situation.
PART TWO

CHAPTER VIII

Legal Disciplines

In this regard I can say that there are two disciplines that study the law and that differ from
each other not only in terms of their object but also in terms of method: the Fundamental and
the Auxiliary, in the first we find the philosophy of law as such, and the technical
jurisprudence. In the second, the history of comparative law and legal sociology are
highlighted.

With regard to the Philosophy of Law and General Philosophy it can be said that the essence of
legal philosophy is not conceivable if the content of general philosophy is ignored, in this same
line it can be said that the philosophy of law is a branch of the philosophy of the general.

Science and Philosophy

From the philosophical and scientific point of view, they have one element in common and
that is their purpose, that is to say that although they take different paths, the goal they
pursue is the attainment of truth.

However, it is necessary to emphasize that there are also differences:

o Science is a partially unified knowledge and philosophy, on the other hand, a totally unified
knowledge (Spencer).

o Science is purely explanatory and philosophy is normative.

o Science merely investigates what is and seeks to explain it, while philosophy asks only what
ought to be.

o Science merely studies phenomena and relationships, without acquiring the essence of the
real, while philosophy does acquire this essence.

Branches of Philosophy

The legal philosophy does not appear in the classifications of the disciplines that integrate the
philosophy, the omission obeys that for certain authors it is not an independent or
autonomous branch but chapter of the ethics. It should be noted that the above thesis seems
unjustifiable to the author of this book, since it is tantamount to identifying morality and law,
which is not correct.

Topics in the Philosophy of Law.

o The study of this juridical notion: it constitutes the object of the fundamental theory of law.
This theory should explain essential legal concepts.
o Values that the positive legal order must achieve: also known as legal axiology or theory of
just law, it consists of discovering the values proper to law, i.e. it studies the values to whose
achievement the positive legal order must aspire.

The General Theory of Law and Legal Philosophy

It is granted by German authors Bergbhom, Merkel and Bierling as a set of generalizations

related to legal phenomena.

The movement of the general theory of law in Germany, like the corresponding movement of
the analytical school of jurisprudence in England, aimed at the construction of a system of the
first concepts of legal science, which would put an end to the anarchy of scientific production
in particular branches. From this claim it is necessary to mention Stuart Mill's formulation in
relation to the English analytical school: "The details of the different legal systems are
different, but there is no reason why the classifications and fundamental elements of
arrangement should not be largely the same. The object is to get to have as an instrument the
generic concepts of the science of law, starting with the concept of law itself, and thus by
abstracting general characteristics of the concepts handled by the science of law, achieved a
series of valid concepts of all of them and thus introduced into a unified system".

At the beginning of the renaissance of philosophical-legal speculation at the end of the 19th
century, jurists abandoned the methodical procedures proposed by those schools and
dedicated a good part of their progress to the investigation of the methods suitable for the
development of fundamental studies on law.

CHAPTER IX

TECHNICAL JURISPRUDENCE

It is a school of the positive order, inasmuch as it does not manifest itself as the fundamental
legal theory on the essence of law nor does it study the supreme values of law as is the case of
legal axiology, but reduces to the systematization of the rules that constitute certain legal
systems and indicates how the problems that their application originates can be solved.

Technical Jurisprudence then sets out in an orderly fashion the legal precepts that are in the
spirit of a given time and place and studies the problems relating to their interpretation and
relationship.

Among its fundamental aspects we have the theoretical and the practical, the first is an
exposition of the legal rules that are proper of a temporally and spatially circumscribed order;
the second covers, as its name indicates, the art of interpretation and application of the rules
that comprise it.

Difference of General Theory of Law and Technical Jurisprudence

o The first is concerned with discovering what all systems have in common, rising inductively to
the fundamental legal concepts, the second appears as a special doctrine of each legal system
and does not study the notions but takes them for granted, explaining the content of the laws
or customs that make up the system to which it refers.
o The first, from the strictly logical point of view, only accepts a fundamental or general theory
of law, while the second can be as numerous as the positive rights that history as such records.

Branches of Technical Jurisprudence

The denomination of legal systematics and legal technique or doctrine of the application of
the law, the first in its theoretical aspect is a descriptive discipline whose object is to expose in
an orderly and coherent manner, the customary, jurisprudential and legal provisions that make
up each legal system. The second is the art of interpretation and application of the precepts of
the law in force. All legal precepts have a meaning, but this meaning is not always apparent to
the naked eye.

Regarding conflicts of laws, the technical jurisprudence must point out the rules to be used to
solve the problems arising from the diversity of laws. The above are called problems on the
application of laws in space, to distinguish them from those relating to the application of legal
norms in time (Retroaction).

CHAPTER X

PUBLIC LAW AND PRIVATE LAW

This division of the two legal rules into two branches of law was made by Roman jurists. The
distinction between the two matters has been much disputed by various jurists. This
controversy was approached and synthesized by the classical doctrine in the so-called
sentence of the Jurisconsult Ulpiano "Publicum jus est quod ad statum rei romanae spectat,
privatum quod ad singulorum utilitatem" which establishes that the norms of public law
correspond to the collective interest while those of private law are inclined to the particular
interest, that is why it is said that public law is that which benefits the community.This is why it
is said that public law is that which benefits the community.

Public law governs the powers that are directly at the service of all or of the people. Private
law, on the other hand, has the interest for itself before anyone else.

In this same line, it is necessary to point out that there are theories that tried to establish the
difference between both branches, but none has done so in a satisfactory manner, due to lack
of theoretical foundations.

CHAPTER XI

Special Legal Disciplines and Ancillary Legal Disciplines

Public and private law is divided into several disciplines called special, belonging to Public Law
the Constitutional, Administrative, Criminal and Procedural Law and to Private Law the Civil
and Commercial Law, but taking into account that legal relations can go beyond the scope of a
legal system, it is logical to emphasize public and private international law, which frames the
same content of public and private law but each one has its own rules.However, taking into
account that legal relations can go beyond the scope of a legal system, it is logical to
emphasize public law and international private law, which frame the same content of public
and private law, but each one has its own rules.
Constitutional Law

Relating to the fundamental structure of the state, its functions and the connection of these
with each other and with individuals.

The former refers to the political organization, the competence of the various powers
and the principles concerning the status of persons, while the latter applies to the document
containing the norms relating to the fundamental structure of the state.

In the same way the political can be broken down, in the material aspect it refers to
the recognition of the constitution in all the states that is applicable at all times and places, in
the formal aspect all the states have a constitution, which in the material aspect is not the case
since only those whose political organization appears regulated in a solemn document
(constitution) have it.

Administrative Law

Its specific purpose is public administration. These are the activities through which the state
and its auxiliary subjects tend to the satisfaction of the collective interest.

Public administration from the material point of view is the activity of the state aimed at
satisfying the general interest regardless of the organ that performs it.

In a formal sense, public administration is defined as any act emanating from the executive
branch, even if it is of a different nature.

It was necessary to decide in which sense to take the denomination Public Administration, and
although this generated controversy, the jurists were inclined in the formal criteria, that is why
they proceeded to define Administrative Law as the complex of legal norms that regulate the
organization and activity of the public administration in the formal sense. Administrative Law
was defined as the complex of legal norms that regulate the organization and activity of the
public administration in the formal sense.

Criminal Law

It is known as the set of rules that determine the crimes, the penalties imposed by the state on
the offender and the security measures that the state establishes for the prevention of crime.

Crime means anti-social actions prohibited by law. In most modern legal systems, only those
actions or omissions considered as such by the law are considered criminal acts. It is up to the
public power to prosecute and judge the offender, that is why criminal law is considered as
one of the branches of political law, both the interests protected and the sanction (penalty,
security measure) is public to whoever attacks them.

Disciplinary Criminal Law and Military Law

Criminal disciplinary law is derived from the exercise of the disciplinary power that belongs to
the state, whose purpose is the maintenance of a conduct adjusted to the duties and
obligations imposed by its professional regulations, on the part of the civil servants.
Military Law is not only limited to the study of the laws that punish military infractions, but
also encompasses the norms that coordinate, synchronize and coordinate the relations derived
from war life. In conclusion, military law must be dealt with independently or autonomously.

Procedural Law

It is the set of rules relating to the development of the procedural relationship, these aimed at
the application of the rules of law to particular cases, in order to establish a doubtful legal
relationship, so that the courts declare the existence of a certain obligation and, if necessary,
order it to be enforced.

Procedural law is consequently an instrumental or adjective law, endowed with autonomy vis-
à-vis the material or substantive law.

Public International Law

This, through a set of norms, governs the relations of the states among themselves and
indicates their reciprocal rights and duties.

The legal nature of the rules that make up so-called international law has been discussed at
length on this subject. It lacks the difference between punishment and enforcement and the
principle of equivalence between the crime and the sanction. While it is true that reprisals and
war represent two different degrees of sanction, i.e. two degrees of forced intervention in the
sphere of interests of a State. But international law does not decide in favor of one or the
other of the sanctions, the difference between which depends on the gravity of the
international crime against which the sanction constitutes a reaction.

International law in general establishes that the injured state is free to choose the sanction
with which it wishes to react against the person who injured it without taking into account the
gravity of the crime, this being the worst omission made by international law as such.

Civil Law

This branch is usually divided into five parts:

o Personal Law (legal personality, capacity, civil status and domicile),

o Family Law (marriage, divorce, legitimation, adoption, parental authority, guardianship and
conservatorship),

o Property Law (classification, possession, ownership, property, usufruct, use, habitation,

easements, etc.),

o Inheritance Law (testamentary and legitimate successions),

o Law of Obligations.

Along the same lines, it can be said that Civil Law determines the essential consequences of
the main facts and acts of human life (birth, majority, marriage) and the legal situation of
human beings in relation to their fellow human beings (civil capacity, debts and credits) or in
relation to things (property, usufruct, etc.).

Commercial Law

It is the branch of law that studies and regulates commerce, it is a normative complex of
special private law for merchants and commercial activity.

All acts of a similar nature are mercantile.

Private International Law

It is formed by a set of rules that indicate how to solve the problems of application of laws in
space, derived from a plurality of legislations in private matters.

In principle, the spatial scope of a legal system was limited to the territory of the state
organization to which it belonged.

Legal Branches of Resilient Creation

The most important is the Agrarian Law, Labor Law and Air Law. The first is the branch of law
that contains the rules regulating the legal relations concerning agriculture. In other words,
agrarian law is made up of norms related to rural property, agriculture and livestock, rural
credit, water use, forests, colonization, agricultural insurance and, in general, all those related
to agriculture. The second are the legal norms that regulate the relations between workers
(laborers, day laborers, domestic workers, artisans and in general any person who puts his or
her labor power at the disposal of another) and their employers. It is important to emphasize
that only the mandate, the rendering of professional services and the work of senior
employees of companies are exempt from its regulation under certain conditions. The Third is
the discipline that studies the rules that allude to air navigation, aircraft and airspace as an
indispensable element of navigation.

History of Law

It is a branch or chapter of general history. According to the traditional conception, it is defined

as the narration of events that occurred in the past. The foregoing is very broad in that it
cannot cover all preterit events.

There was some doubt as to whether the history of law is a science, and Shopenhauer rightly
states that history is a knowledge, not a science. It is a creative imitation, not an invention for
art, nor an abstract synthesis like the sciences, nor an intuition of universal principles like
philosophy.

In short, we can say that the history of law is a discipline whose object is the knowledge of the
legal systems of the past. Therefore, it will show us the events of production and modification
of the law in its own real individuality: it will offer the film of the development of law
embedded in the rest of the historical facts.
Comparative Law

This discipline consists of the comparative study of institutions or legal systems of different
places or times in order to determine the common or differential notes that exist between
them and from such analysis draw conclusions on the conclusion of such institutions or
systems or criteria for their improvement and reform.

PART THREE

LEGAL ASSUMPTIONS AND FACTS

The Rule of Law and Legal Assumptions

The legal assumptions is one of the integral elements of the precept of law and its importance
is paramount since it indicates the requirements that condition the powers and duties
established by the same precept.

The consequences to which the condition of the assumption gives rise may occur in the birth,
transmission, modification or extinction of powers and obligations.

Legal assumptions can be simple or complex, the former are made up of a single hypothesis,
while the latter are composed of two or more simple assumptions.

The Law of Legal Causation

In short, this means that there are no legal consequences without legal assumptions. In other
words, "any legal consequence is conditioned by certain assumptions".

The law of legal causality tells us that if the legal conditions do not change, the legal
consequences should not change.

CHAPTER XIII

MAIN THEORIES OF SUBJECTIVE RIGHTS

The subjective right for Bernardo Windscheid in his thesis is a power of the will recognized by
the legal order. This is usually used in two senses: first, subjective right is understood as the
power to demand certain behavior, whether positive or negative, from the person or persons
who have the right in front of the holder. On the other hand, it is stated, for example, that the
owner has the right to dispose of his property, that the creditor may assign his claims, or that a
contracting party is entitled to terminate a contract if the parties do not comply with the
agreement. In these cases what is to be emphasized is that the will of the holder is decisive for
the birth of wills of the first type or for the extinction or modification of the pre-existing ones.

Thesis of Rudolph Jhering

In Book II of "The Spirit of Roman Law" he concludes that in all law there are two elements of
equal importance, the formal and the substantial. The interest represents an internal element,
the action the protector of the subjective right, so it must be defined as a legally protected
interest.

Jhering gives the name of good to anything that is used for a subject, the aforementioned is
linked to value and interest, understanding by the first the measure of utility of a good and by
the second the value in its peculiar relation to the individual and his aspirations.

It should be noted that criticisms were generated to the theory of interest, the most important
of which is summarized as follows: "if the note of interest were essential to the subjective
right, the latter would not exist in the absence of the former".

Eclectic Theory - Jorge Jellinek

It defines subjective right as an interest protected by law through the recognition of individual
will.

Kelsen's thesis

He argues that subjective law must be studied according to an exclusively normative and
formal criterion, making total abstraction of the elements of a psychological nature that in the
world of facts may correspond to the norms of demanding law.

These theories left the formal element, which is legally the only relevant element, on a
secondary plane.

CHAPTER XIV

CLASSIFICATION OF SUBJECTIVE RIGHTS

The subjective right is usually divided into: one's own conduct and the conduct of others, in
the first case alluding to the right of property, it is constituted by the right to the omission of
the conduct of others, while in the second case everyone does not exercise his right when
these are not based on an obligation of his own.

Relative Rights and Absolute Rights

When the obligation is incumbent upon or corresponds to several individually determined

subjects it is relative, therefore it is absolute when the obligation is universal. In other words,
absolute rights apply to all persons.

Dependent and Independent Subjective Rights: the former are those based on another right or
on a legal duty of the holder. The second are those not based on a duty or on another right of
the same subject; they may be based on an obligation.

Part Four.

Application of the Law.

Legal Technique: its purpose is the study of problems related to the application of objective
law in specific cases. This concept must be studied in depth in order to unravel the true
application of the law.

What we call technique of application, adequate means for the achievement of artistic
purposes but necessarily implies a minimun of knowledge; therefore the juridical technique
consists in the handling of the means that allow the achievement of the objectives pursued,
but these objectives are obtained by formulation and application of rules, distinguishing the
technique of formulation and the technique of application of the precepts of law.Therefore,
the legal technique consists in the management of the means that allow the achievement of
the objectives pursued, but these objectives are obtained by formulation and application of
rules, distinguishing the technique of formulation and application of the precepts of law.

As for the formulation; call it legislative technique, the art of elaboration or formation of laws
and the application to singular cases, concrete legal purposes.

To apply a rule is to formulate an imputational judgment in relation to the subjects who, as a

result of the realization of the assumption, become obliged or entitled.

Determination of the subjects.

It is the individualization of the possible subjects of the obligations or holders of the rights
conditioned by the legal event.

The individualization of the subjects presupposes the proof that the legal act is imputable to
them and sometimes that of a different one by which they have acquired a certain quality in
the absence of which the imputation could not be carried out.

For the determination of the subjects on whom the normative consequences fall, it is not
always necessary to establish the existence of a different legal fact. It is often sufficient to
verify that the realization of the assumption of the rule to be applied has been caused by a
certain subject.

The legal syllogism.

The reasoning of the application of the precepts of law is of a syllogistic type; the major
premise is constituted by the generic rule; the minor premise by the judgment that declares
the assumption of that rule to have been made and the conclusion by the one that imputes to
the subjects involved in the case the consequences of law.

Private application and official application of legal norms.

The application of the rules of law to specific cases may be private or public. In the first case it
has a simple knowledge purpose; in the second case, which is the application itself; it consists
of the official determination of the consequences that derive from the realization of a
normative hypothesis, with a view to the execution or fulfillment of such consequences.

Problems related to the application process.

The fundamental questions that the application of objective law to specific cases may raise:

* Determination of the validity.

* Interpretation

* Integration

* Retroactivity

* Conflicts of laws in space.

Concept of Interpretation.

The interpretation of the law is a sui generis form, it is one of the multiple interpretative
problems, since it is possible to interpret not only the law but, in general, any expression that
contains a meaning.

To interpret is to unravel the meaning of an expression; expressions are interpreted to

discover what they mean.

The expression is a set of signs:

* The expression in its physical aspect, the sensitive sign.

* The significance, what the expression means is the meaning of the expression, it seems to
be the object to which the expression refers.

* The object

The interpretation of the law is to discover its meaning. The law appears before us as a form of
expression, which can be the set of signs written on paper, which form the articles of the
Codes.

Authors of the interpretation, which is not the exclusive task of the judge, but can be carried
out by anyone who can ascertain the meaning of a legal provision. But the quality of the
interpreter is not irrelevant, at least from a practical point of view, because not all interpreting
is compulsory.

Interpretation is an art and consequently has a special technique, but as any technique
involves the correct use of a series of means to obtain certain purposes, it is necessary to study
the interpretative methods, and I will specify the following ones, which are numerous;

The exegetical method

The interpretation or exegesis of the law holds that if the judge is faced with contradictory
laws, which make it impossible to discover the will of the legislator, he must abstain from
judging, consider such precepts as non-existent and reject the claim.
The work of exegesis is not always difficult; when a law is clear, it is not licit to evade its letter,
under the pretext of penetrating its spirit. At this juncture, the interpretation is purely
grammatical, although sometimes the expression is obscure and incomplete, so it is necessary
to resort to the so-called logical interpretation, the purpose of which is to discover the spirit of
the law, in order to control, complete, restrict or extend its letter.

There are auxiliary means that the interpreter must use to achieve such interpretation:

* Review of preparatory work, explanatory statements and parliamentary discussions.

* Analysis of historical tradition and custom.

* In any case where these means are unsuccessful, indirect procedures will have to be used.

But in cases not foreseen, the following means are foreseen in the meantime:

* Argument a contrario, when a legal text contains a restrictive solution, in relation to the
case to which it refers, it can be inferred that those not included in it must be the object of a
contrary solution.

* Argument a pari, a majori ad minus, a minori ad majus, arguments of this kind are based on
the idea that in all those cases where the same legal reason exists, the provision must be the
same. For the application of analogical reasoning to be correct, the simple similarity of two
factual situations, one foreseen and the other not foreseen by the law, is not sufficient.

Geny's criticism of the traditional method, the conclusions reached by the School of Exegesis
derive from a false idea about the importance and meaning of legislation and codifications.
The legislator cannot attribute to himself the monopoly of the formulation of law, because his
activity encounters a series of insurmountable barriers that derive from the very nature of
things.

As for the Interpretation of the Law, according to Geny, he maintains that the interpretation of
the law must be made according to the will of its authors, but it is necessary to discover the
whole content of that will, when the legislator dictates a law, naturally using a general and
abstract formula, he only has in mind a few concrete cases, perhaps he could not foresee other
applications of the same.

Geny recommends the study of preparatory work, but is careful not to exaggerate its
importance and to specify the value to be attributed to it.

Some of the supporters of the emancipation of the judge argue that the conceptual legal
construction should be replaced by the appreciation of the interests that concur in each
specific case, thus giving rise to the so-called jurisprudence of interests.

Likewise, in the years 1900 and 1906, efforts were mainly oriented towards demonstrating the
insufficiency of the traditional method and emphasizing the need to grant the judge a creative
role, not only in the interpretative work, but, above all, in those cases in which the law
presents gaps.

There is a Thesis that has been inspired by Gustavo Radbruch, in the School of Free Law; where
inspired by some of the ideas defended by the Historical School and related to his convictions
about the essence of culture. It consists essentially of a reconstruction of the legislator's
thinking. The meaning of the law cannot reside in the will of the legislators, because it is not
valid as an expression of a subjective will, but as the will of the State, therefore it is convenient
to separate the subjective will of the legislator and the objective meaning of the norm.

For Kelsen, when a person asserts a certain legal claim, it is necessary to examine whether or
not such claim is supported by the law, reaching the conclusion that there are no real gaps,
because if the legal precepts do not grant the subject the power to demand something, it
means that his claim must be rejected. And the solution will be based on the law in accordance
with the principle that whatever is not prohibited is permitted.

When we speak of loopholes, what is meant is that the possible solutions are considered
unfair, as soon as it is thought that if the legislator had had the special case in mind, he would
have regulated it in a completely different way from that or those.

Kelsen refers to the so-called technical gaps, which exist when the legislator has omitted to
regulate something that was indispensable to make the application of a precept possible. It is a
difference between positive and desired law.

The Law and Judicial Decisions.

There are three types of Resolutions:

* Resolutions based on the Law.

* Resolutions in the absence of the Law.

* Resolutions against the Law.

There are conflicts of laws in time, in principle, legal rules govern all the facts that, during the
time they are in force, occur in accordance with their assumptions. If an event occurs while a
law is in force, the legal consequences, which the provision indicates, must be imputed to the
conditioning event.

The general principle that dominates this matter is that the law should not be applied
retroactively to the detriment of any person.

Theory of acquired rights; a law is retroactive when it destroys or restricts a right acquired
under the rule of a previous law, but not if it annihilates a legal power or a simple expectation.
The thesis revolves around three fundamental concepts, namely, the vested right, the faculty is
and the expectation. Acquired rights are those that have entered our domain and,
consequently, are part of it and cannot be taken away from us by the one from whom we have
them, as an example of acquired rights, Merlin cites the case of those derived from the
execution of a contract.

The Thesis of Baudry, La Cantinerie and Houques Fourcade on vested rights; the starting point
of these is the distinction of legal power and exercise. The unexercised legal power is a mere
expectation that only becomes vested rights by virtue of the exercise. The exercise of the legal
power is constituted by the acquired right and this right belongs to us from then on, to the
point that a new law cannot deprive us of it without being retroactive. There is no difficulty in
understanding this, for the law would destroy itself by annihilating the work it has permitted in
the past, since then there would be nothing stable in social life. When the new law destroys or
restricts a power not exercised during the effectiveness of the previous law. The application
can no longer be seen, according to the aforementioned authors, as retroactive because such
application does not harm anyone.

Thesis of Paul Roubier, the basis of the theory of conflict of laws in time lies, according to
Roubier, in the distinction between the retroactive effect and the immediate effect of the law.

Legal rules have retroactive effect when applied;

If the new law applies to the consequences not yet realized of a fact occurred under the rule of
the preceding one, it has no retroactive effect if not, immediate, as regards future events, it is
clear that the new law can never be retroactive, the problem of retroactivity arises relatively to
the legal consequences of a fact realized under the rule of a law, when at the time when the
validity of a new rule begins. These consequences have not yet come to fruition.

Exceptions to the principle of non-retroactivity of the law; in matters of retroactivity there are
two fundamental problems, the first is to establish when the application of a law is retroactive.
The second is to determine when a law can be applied retroactively.

In which cases should the law be applied retroactively? Retroactive application is lawful in
cases where no one is harmed.

Exceptions to the principle of non-retroactivity in criminal matters. The general principle that
no law should produce retroactive effects to the detriment of any person, leads to the
conclusion that retroactivity is lawful when, far from being detrimental, it benefits individuals.

Conflict of laws in space.

Every law has a temporal scope and a special scope of effectiveness. This means that it only
binds for a certain period of time and in a certain portion of space in terms of time, we have
seen how it is already possible that a law applies not only to the legal facts occurred from the
initiation of its validity, but also to the normative consequences of previous rights, initially
governed by another law. Problems related to the application of laws in different areas are
often referred to as conflicts of laws over time.
It has been said that the expression conflict of laws is not correct, because when dealing with
problems of application of different rules, it is thought that it would be preferable to use the
expression problems of extraterritorial authority of the law.

The so-called conflict of laws in space is always reduced to establish the territorial or
extraterritorial character of a certain precept, the laws in force in a state are applied within the
territory of the same. The possibility is admitted that the mandatory law in the territory of a
State may be applied outside it, or that of a foreign law may be applied in the national
territory.

Conflicts of laws and Private International Law; the problem of conflicts of laws in space is the
most important:

* Nationality problem.

* Problem of the status of foreigners.

* Conflicts of laws in space.

According to the first principle, the laws of each state apply exclusively. Within its territory and
to all persons within it, whether nationals or foreigners, residents or passers-by. This form of
solution, conceivable in theory but unfeasible in practice, would in fact be the elimination of
the problem because if the laws in force in a country, only within the territory of the same to
all persons without exception, the conflict of laws would never arise.

CONCLUSION

Garcia Maynez took us by the hand to learn the normative or enunciative character of the
precepts of Law, by asking us the first question of our discipline: What is Law? to then refer us
to the Kantian theory of imperatives and end by criticizing the classic logical structure of the
legal norm of the father of the Pure Theory of Law and tell us that he overlooks the term of
subjective right, complement of the legal duty, as consequences of the realization of the legal
assumption. And so, he does not go on delimiting the notions of Law from those of Morality
and social conventionalisms; continuing with the sources of Law, the classification of the
norms that integrate it and giving us the pristine bases of the problematic of the relations that
exist between the State and the Legal Order. In a systematic way -a pretense that he fully
achieves- he explains the fundamental and auxiliary disciplines that study the Law. It already
prepares us to learn what it calls the fundamental legal concepts: legal assumption, legal fact,
legal consequence, subjective right, person, sanction and coercion. Finally, it teaches us the
main problems of the Technique or Application of Law in practical life: determination of
validity, interpretation, integration, conflicts of laws in time and space.

Of the importance of the text, he pointed out its basic points: a). It provides an overview of the
law; b). It studies its general concepts; and c). Discusses the problems of legal technique.
Regarding the first point, its importance lies in the fact that it is essential to offer an overview
of our discipline; the notion of law, its sources, classification of legal rules, branches of law,
disciplines that study them, problems of each of them and so on. "Only by possessing these
preliminary notions will they be able to successfully pursue a career as a lawyer," he wrote.
Without knowledge of the usual legal nomenclature and the fundamental problems of law, the
task is very difficult.

Regarding the second point, he stated that there are two types of concepts: general and
particular. The former apply to all branches of law and the latter only to certain divisions of
law. The Introduction to the study of Law corresponds to the exposition of general concepts;
and the special legal disciplines to the study of particular concepts. Without knowledge of the
former, it is not possible to understand the latter.

The third point is justified since the science of law consists of two parts: legal systematics and
the technique or application of law. The purpose of the first is the orderly and coherent
exposition of the rules of a given positive law. The second studies the problems that arise from
the application to specific cases, such as the determination of validity, interpretation,
integration, retroactivity and conflicts of laws in space.

It is, therefore, necessary to have a general subject that offers an overall view of the law.

Then as a conclusion we can say that within the Law, in all its areas there are rules created and
implemented for a single purpose, the common good, the nature of the legal rules is
essentially social, thus q the task of making the common good effective is not only incumbent
upon all of us, but will only be possible to the extent that the conduct of individuals is
intertwined with each other, supporting each other.