Chapter 1: Concept of Law Flashcards
what did Aristotle say in regards to the nature of men?
“man is a social animal”
- life in a society is a necessary condition for men, we depend on relationships/interactions
society
agglomerate of people with a common purpose, that has stability and that is organized
3 main types of societies
International societies: w/ international purposes (EU, UN…)
State societies: different states
Infra-state societies: individuals oriented towards non-state interest (family, companies, churches…)
social authority (4)
Social authority is vital to ensure fluidity in social life. This authority must:
Take collective decisions = decision- making power
Create system of rules = legislative power
Set of organs to implement the rules = institutional power
Apply corresponding penalties = sanctioning power
naturalist conception of man in society
natural tendency to socialize in order to meet basic needs
-> only in close collaboration with other can men develop their full potential and find fulfilment as individuals
classic authors: Aristotle, Cicero and Saint Aquinas
contractual conception of man in society
in a state of nature, man possesses a natural tendency to disrespect - >theory argues that life of men in society is based on a social contract (agreement of wills) that limits the nature of men
-> without this, “men would be in a permanent state of war among themselves”
major contractual theories: Leviathan, Optimism, Realism…
law
set of rules imposed to a group of people indistinctively
objective law
set of rules of social conduct objectively binding on all men = law
-> Positive Law: set of rules regulating social relationships
-> Natural Law: set of rules and principles superior to the Positive Law, which allow measuring the legitimacy or illegitimacy of the Positive Law
(unwritten and is connected to human rights (example: bury the dead and respect them…))
subjective law
as a power is conferred by law to the holder of an objective law, to act or not according to its content = right
e:. through purchase and sale agreement, the purchaser has the right to receive the goods and the seller is entitled to receive the money
state the differences b/w the positivist & naturalist school of though (objective law)
Positivist School of Thought: Natural Law does not exist, or is not true law, therefore, nothing interferes or affects the Positive Law.
Naturalist School of Thought: Natural Law does exist, and is superior to Positive Law
normative social orders
promote harmonization of social activities & solve conflicts of interests
- moral order: order of consciousness and seeks the betterment of the individual
- religious order: order of faith and transcendence, regulates relations established b/w individual and God/s
- social conduct order: order that comprises rules of courtesy and politeness
- legal order: comprises set of legal rules, governing the most important aspects of life in society (most important)
sanctions in normative social orders
remorse for:
- social conduct order
- religious order
- moral order
imprisonment for: legal order
legal order holds 3 principles
principle of freedom = recipients of legal rule are neither required a total loss of
freedom in order to meet such legal rules, nor a relative loss of freedom
principle of plenitude = law, despite not covering all situations of social
life, has a solution for all the issues that may arise (ART 8 CC)
principle of perfection = always assume solutions given by lawmaker are the most accurate (ART 9 3))
differences b/w law & religion
purpose = law refers to relations of men with other
men whilst religion focuses of relations with divinity
nature= law is inter-subjective & religion is intra-subjective
subjective conscience = law is not related to faith
coercivity = not present in religion, only spirital sanctions
religion in portugal
article 41 (freedom of religion) CRP
portuguese state = secular, does not give privilege neither persecutes any religion
