All Must-know About Law and rights | General Introduction

Roman statue of the law goddess

Due to the long amount of words and pages that we wrote about this article, we have divided it into 2 parts.

     this is the first one where we introduce to you the first chapter. check the second part here

Chapter 1: the notion of Law and right  :

The law is the set of rules enacted by a society to which every resident of the country is bound to obey.

1 - The characters of the rule of law

        A - The general and impersonal character

The rule of law is general: it is intended for all members of society. But it can also be sectoral (example: only traders), or even sectoral. 

It is not nominative, which is why it gives an impression of equality. It can, however, apply to one person (example: rule of law for the President of the Republic). Exception: a rule of law can be nominative (example: the ashes in the Pantheon, or the nationalization/denationalization of a company).

       B - The abstract character

When you read a rule of law without being a lawyer, you do not necessarily understand it because a rule of law is abstract. The words used are "framework notions" whose meaning must be known. We use this method because if the laws were too precise, we would inevitably forget a case or a situation, and we would have to constantly add new laws because of technological advances. 

It is, therefore, necessary that the rules of law do not move over the decades, or even over the centuries. They are general, and it is up to the judge to interpret these abstract sentences in light of the context. There are of course exceptions, but it is more a matter of regulation.

      C - The coercive nature

A rule of law is accompanied by the threat of a sanction because it always commands to do or not to do something. These penalties are imprisonment, fines, damages, community service, cancellations, etc. There is unenforceability: it is not possible to show the facts to a third party. However, there are also exceptions.

 Some laws are not, for example, accompanied by sanctions, they are called "lex imperfect" (example: article 371 of the civil code: children of all ages owe honor and respect to their father and mother).

2 - The foundations of law

     A - The theory of natural law

There are two kinds of law to be distinguished: natural law and positive law (law of the legislator). The fundamentals indicate that positive law conforms to an ideal that is above all else, so it surpasses the natural right (respectful of human nature, it was reminiscent of the dawn of time and would be everywhere). 

For its part, natural law contains great precepts, such as the rights to life, to procreation, to mating. Positive law must be a reflection of natural rights. 

Yet, in France, there are rights that do not respect natural rights, giving judges the possibility of interpreting the law as unfair, and thus ruling that certain regulations do not correspond to "the general principles of general rights".

     B - The theory of positivism

Legal positivism thinks that men respect the rules of law thanks to the positive law, laid down by legislators. He says that what characterizes the laws are the threats of sanctions. It is this principle that is applied in dictatorships.

Sociological positivism thinks that men respect the rules of law because of the existence of texts of positive law. Since the rule of law emanates from the social body, this positivism theorizes that it is wanted by those who must respect it and is therefore accepted.

3 - The law, a social construction

     A - The law, a normative science

"To do one's right" is to study legal norms. The work, therefore, consists of looking at the legal texts. But the behavior of men does not depend only on the norms of law: morality, religion or politeness also play their part.

Legal norms and moral rules are comparable on three points:

• Their purpose:
o Morality governs relations between men and relationships with ourselves,
o Law governs relationships with others only.
• Their purpose:
o Morality aspires to make perfect beings,
o The law aspires to regulate what is most important.
• Their sanction:
o Morality inflicts a punishment on oneself, inflicted by one's environment (friends ...),
o The law imposes a harsher sanction and decided by an impartial man.

Legal norms and norms of religion: these two norms are precise and are interpreted by people qualified for the task. Often, the rules of law and religion come together.

 However, one can be subject to the sanctions of his religion only if one submits to this religion, while the law submits its sanction to everyone. Lay judges apply the rules of religion by substitution.

Legal norms and standards of politeness: politeness is respected more or less, to give a good self-image. However, the law

4 - Both senses of the word right

     A - The objective right

Here, the right is defined because of its purpose (to govern the life of men in society). This is the most widespread meaning of the word, it is the right of the legislator, very general and applied to everyone.

     B - The subjective rights

Subjective rights are those who possess a given subject. There are two types of topics:
• Individuals (in the flesh).
• Legal persons (companies, region, state ...).

We do not all have the same subjective rights, but we have more than one.

     C - The link between objective law and subjective rights

The subjective rights derive from the objective right because the latter simply allows having rights. It follows then that if one carries out a legal action which does not respect the objective right, one immediately loses the business.

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