Political Comprehension of Rights

Prof. Dr Alfredo Cruz Prados

Master in Governance and culture of Organisations
Class 01 03/XI/23

Many people think that rights aren’t directly related to politics, but they are wrong.

Normativism: understand law as norms. “Lo primero que es fundamentalmente derecho

es la norma”. A first reality.
Jurídic subjetivism: the faculty to reclaim something. This is what is present
in HUMAN RIGHTS. A second reality: because there is a norm, you have the
right to. I have the right to medical attention because there is a norm to the doctors
to attend me. Some people associate human rights to a natural law or norm, but it
seems wrong.

“Depende de cuál sea el derecho, cuál será su causa”.

Kelsen: all norms presuppose a will (this is ius-positivism), thereby, there can’t be natural
positive rights because they aren’t such a thing as natural law.

The advocates of natural law have to defend and track the original will that imposes
natural law: God or pure nature. They understand nature as a fact. By contrast, tomists
understand nature as the oeuvre of someone. But, how nature as a fact can regulate
freedom?

Law: something that gives us the measure of freedom.

All of culture and education is to correct what is spontaneous.

When we take from nature the condition of being a work done by someone
intelligent.

Function: the intention of the maker (“artífice”). What the maker would want me to do
with what he has done.
 “La reduzco a artefacto. Los puros hechos no tienen sentido, precisamente en la
medida en que los vemos como puro hecho”. For example, when you hear a noise you
immediately ask what has happened? You are seeking the meaning. What has meaning
precedes the fact. The possibility of that fact is already incorporated into our world.
However, with the case of the noise, you didn’t expect the noise, it wasn’t part of our
world, thus, it hadn’t had any meaning.

Applying this to nature, if it is a pure fact, it hasn’t a previous existence. Therefore,

it hasn’t any meaning, because it is a pure fact. It should be the work of God, of an
intelligent author. It is me that gives meaning to nature with my actions. Usefulness is the
capability of something to have meaning. Nature is waiting for us to give it meaning.

If right is a norm, then it’s impossible to avoid ius-positivism, because norms are
imposed. “No cabe un iusnaturalismo secular, mientras al derecho lo entendamos como
norma”. Right is the norm that has been imposed. It’s difficult to sustain a natural law,
unless you say that God himself imposes natural law on men. Even if we don’t like it,
Hans Kelsen affirms that nazi law was a law in the essential sense of the word. Right or
law doesn’t need to be fair in order to be a right or law, if we understand ‘fair’ as a
moral judgement.

The only way in which nature can regulate our freedom is that nature would be
superior to ourselves. Freedom can only be regulated by other freedom, but not something
that isn’t free, not by fact, but by a will (in both senses of the word).

Nevertheless, what occurs if we say that the first thing is subjective rights, and
then, there are norms. So, first there is, for example, my right of freedom of speech which
translates into the norm of letting me speak. All human rights theory affirms that norms
are a consequence of subjective rights. But, where do subjective rights come from?
Obviously, from nature. Notice that nature cannot give us norms, but it can give us
rights or faculties over others. What is my right of freedom of speech: my capacity to
shut others up. What is my right of education: my capacity of doing that others teach me.
Nonetheless, we might ask what is the foundation of nature? God?

Where do we get the criteria to determine which faculties are rights and which
not? With which faculties can I prevail over others and with which don’t? If what we have
are pure facts, we don’t have criteria.

All analyses have something artificial by itselves.

The formal cause is the final cause (intention) of the agent. Understand this. But, in the
chair, I grasp how the material cause looks like.

Where do human rights come from?

We don’t have a way of avoiding ius-positivism if we go only to the concept of law/right

itself.
Or is killing wrong or we cannot form a society? Why is it wrong to kill? Due to a social
reason (reciprocity not included).

One main point of normativism: how to distinguish between right and moral. How to
distinguish between one norms and others. “Los códigos añaden penas a las acciones; si
no se da la acción, entonces viene una pena”. The penalty adds coercion.

A juridical norm is the one that has a physical penalty. Are focused on the exterior. They
are institutionalised. But none of these criteria allows us to distinguish between juridical
and moral norms. Coercion, exteriority and institutionalisation are things external to the
norm itself. They cannot change the nature of the norm. The consequence of breaching
the norms doesn’t modify the nature of the norm. What you are doing is adding an
external motivation to comply with a norm. Punishment is a reinforcement of the norm.
Problem: when we put a menace, we allow the other person to comply with the norm
only for avoiding the punishment.
-”Thou shalt not steal” (Exodus 20:15). If you steal, you have a penalty (we add
coercion)

Why does exteriority fail in our research? Because moral norms also revolve around
external actions.

Why does institutionalisation fail in our research? Because we cannot have moral
norms for an abstract human being, we need a particular context in order for moral norms
to exist. As far as we are locating ourselves in concrete institutions or contexts, we discover
actions that we have to do to be better in those contexts or institutions (such as the
family).

Therefore, we have to conclude that jurists study moral, but a special part of moral
that we have agreed to call “law”.

As far as the parents are more concerned (interested) in that her daughter does a
particular action, they put an additional motivation (such as the menace of punishment).
There are actions that are incompatible with the definition of our institutions (e.g., when
your daughter comes back home at any hour she wants). Then, we punish those actions.
“No consentimos que no se dé, porque esas normas nos parecen imprescindibles para
nuestras instituciones o nuestra sociedad”. We don’t need to prescribe adultery to be the
kind of society that we’ve agreed to be. We have left being a familiar society, because
we’ve left to prescribe adultery.
But we are at the same plateau: we have two norms of the same nature that only
distinguish themselves because we have agreed to punish ones and others don’t (because
we are more concerned with some than others).
This was the pars destruens of normativism and subjectivism. The next class we’ll
look at the pars construens: how do we have to understand law.

How do we value distinct theories about the same thing? By the number of
problems that those theories can solve or explain. Basic principle of evaluating scientific
theories. Also, which theory can answer more questions about our main problem.

Class 02 03/XI/23

Alfredo’s proposal. We have to get back to classical realism in law. Thus, we can
avoid the problems of the subjectivist and normativist visions. Classical realism: law is a
thing (res), like an aliquid. A reality that is a being and distinct to the subject. It’s located
outside the subject. “Tiene más que ver con el tener del sujeto que con su ser”. It’s not a
“must-be”.

A law is something that equalises us in a relationship. E.g., buy and sell

relationships. Law or right is “what belongs to others” (“lo suyo”). The trait of being
attributed to someone. The bottle is made out of plastic, and it’s mine. Ius suum.

Things aren’t distributed by nature. We can distribute things. We distribute the

things that are right to someone. When we distribute seats in a class, we can now
predicate that those seats belong to someone else.

Right is a condition that happens in something. We talk about things. We don’t

talk about us, subjects. Belonging to Marcelo is something that doesn’t affect Marcelo but
the thing itself.

Law or rights are the object of justice (Saint Thomas Aquinas). If there isn’t
law or right, there can’t be justice. Likewise, if there isn’t fun, there can’t be the virtue of
eutrapelia. In reality, there are things attributed to someone, things that belong to
someone. To deal with a reality that includes things that belong to someone, we need to
be just or fair. Classical definition of justice: a habit whereby man renders to each one
his due by a constant and perpetual will.

The action of the virtue of justice is to give to each other what belongs to him.

Rights precede justice. The origin of law or rights isn’t justice. What is the good
action regarding when something belongs to someone else, giving it to him.

IUS = Lo justo (like in an adjustment).

If the possibility of doing an just act, then the norm of that exists, and then the
virtue of justice exists. When you give alms, you’re giving something that belongs to you,
no to the other person.

Not all goods are just. There is a lot more good, besides justice. And there’s a lot
more evil than injustice. If you don’t help the homeless, you are uncompassionate, but not
unjust.

We can’t deduce rights from human needs. We can’t deduce goods, but not
rights.

Lex non est ius, sed aliquis ratio iuris. Saint Thomas said that.

General justice: to follow the norms. It deals with the common good. That, in the
end, is complying with the law. Law orders us to the common good. Here, the object is
the common good; not the right or law. The act of any virtue transforms itself into the
act of general justice if it's considered under the perspective of common good. Law can
request acts that itself aren’t pertinent to justice. E.g, fasten your seatbelt when you drive:
an act of prudence turns itself into an act of general justice because it is directed to the
common good.

When Saint Thomas Aquinas gives his definition of justice, he’s referring to
particular justice, justice among particulars. In this justice, the object is the right. The just
act here is to give to each one his due.

TITULAR — IUS SUUM (res)— DEUDOR

There is only right when a thing is ius to someone and a debt for others. This has
to be simultaneously. Attributing something to someone is, at the same time, demanding
something from someone. Therefore, law always demands relationships. The subject of
law is a subject or relationships. Being a student means a relationship. You only are a
student if there is a teacher. You have a driver’s rights if you’re a driver.

Reasonable isn’t a synonym for ‘just’ or ‘fair’.

“La política ha quedado sustituida por las cortes”. The complete abandonment of
rhetorics. There isn’t dialogue, speech or argumentation. Rhetoric was the art of
persuasion. Because, we have erased that need with our obsession with rights. Thus, the
suggestion of the professor of using ‘right’ in a strict sense.

TITULAR — IUS SUUM (res)— DEUDOR

The title is the reason why the thing belongs to myself. “El título es el ropaje del
sujeto, lo que lo hace sujeto de un derecho”.

The right to vote: the title is being an adult citizen of a state.

You can be a debtor either by doing something or by not doing something.

E.g., you are a debtor of everyone when you do not privatise them in the street of their
right to move free.

Problem of human rights: how can you ensure there is a debtor for every
human right in each country?

Res: material, moral and actions, and obligations that others owe me. In realism’s
rights, you have to distinguish when the thing owed is a thing or an action.

Actions can be attributed either to me or to third parties.

Erga omnes: concerning everyone (it’s about the range of law). An action can
immediately obligate one person, but in the long term it obligates all people in a society. It
could be said that every law obliges everyone.

Potestas: a power with which a person can obligate others. An action over others.

Class 03 10/XI/23
There isn’t a need to distinguish between real rights and obligations. Right involves the
action and the “reception” of the action. The reality of right and the just action of giving it
are the same thing.

There is no difference between a right that is a material thing and a right that is an
action (e.g, receiving medical attention due to your insurance).

Rights are always something objective, that is to say, that is in front of me. Ob-jectum:
thrown forward. It doesn’t depend on my subjectivity, my interests or my qualities. What
happens with subjective “rights”? Both normativism and realism agree that “subjective
rights” aren’t anterior to rights. Both in normativism and realism, subjective right isn’t the
first form of right. When subjective rights isn’t the first thing, but a consequence, it’s easy
to distinguish among the human faculties which are rights and which not.

Euthanasia is conceived from the subjective rights’ perspective. If you have a valid
capacity, then nobody should prevent us from using that faculty. But, if I have a right to
fullfill my desire of suicide, then there should be a person that owes me killing me. I go to
the state and ask for someone who is capable of undertaking a lethal action. Someone has
to owe me my own death. From the conception of rights as subjectives, there is no reason
for discarding that I can ask my BF friend to kill if I want. If we want to be coherent;
we can’t reject euthanasia from the human rights’ perspective.

Norms — normativism
The just thing — realism

From the point of view of subjective rights, my capacity for physical integrity includes
both protecting it (“preservarla”) and being able to reduce it (“recortarla”). The norm that
compels the doctor is expression of my subjective right.

An example of defence of abortion from the subjective rights perspective. Nobody is

compelled to endure 9 months of pregnancy (it’s more like an heroic action). First, we
start from the fact that everyone is free to do what he wants with his own body. A woman,
thus, can prostitute herself. But, if you practise promiscuous sexual relationships, you
increase your chances of getting pregnant. And that baby is an usurpator of your body, an
parasit. Since my right over my body is superior to the right for life of the foetus, therefore,
I can kill the fetus or let him live.

All hierarchies in subjectives rights are merely subjective hahaha. There isn’t
juridical rationality in subjective rights.
De iure and de facto actions.

The form in which the thing is ius is what determines the subjective right, from the point
of view of realism. The thing itself determines which form of dominance is valid from the
juridical point of view. Everything, from the juridical perspective has a “manual of use or
treatment” (regime). The action that you can perform with the thing. Take notice of the
analogy with the technical world and with user manuals. There are also juridical manuals.

What is the real thing attributed to the right to live: an action or a thing? It’s clear that it
isn’t related to things. But, we can intuitively know that there are actions attributed to my
right to life: aid and not attacking my life. Nevertheless, we can organise a society in
which it’s only a right not to attack the lives of others, but not receiving aid in case of
danger. “Lo que te debo es no estorbar tu libertad para sentarte en donde quieras”. What
is due to you doesn’t depend on your yearnings or joys. It’s objective.

The professor didn’t exclude the possibility of undertaking euthanasia in really terrible
situations, but those situations are too exceptional. This from the ethics’ perspective. From
the law’s perspective, it is still a crime.

The euthanasia isn’t a right because nobody owes anybody a lethal action, even when
there are situations in which the desire of death is comprehensible. What you owe to
everyone as a particular citizen: not to attack their lives, let them live. In the case of
the death penalty, the society in general owes the death to the traitor or deserters or
renegades. Because they deserve death, that is their ius. Otherwise, if there isn't a death
penalty, they could benefit from their crimes.

A basic principle of criminal law against moral hazard: that nobody can obtain benefits
from a crime.

Saying that something is a right is to say how that thing configures our action or
behaviour. In the same way the thing is a right, the same way it shapes our behaviour. The
juridical nature of the things. We can’t explain our behaviour if we don’t go to the
juridical nature of things.

If your family doesn’t love you unconditionally, then the whole purpose of the family falls
down. What is the kind of parent that every child will desire to have? The one that loves
him unconditionally. Deliberating about whether you let your child live or not is putting
conditions to your love for him. The core of the debate about abortion is which actions is
proper of a good mother and which don’t.
DERECHO = RES, COSA, ALGO

OBJETIVO>>>>> “DERECHO” SUBJETIVO. OB–JECTUM

Before subjective rights, COSA (no NORMA)>IUS> REGIMEN — “DERECHO”

SUBJETIVO.

“MI” = USO

Once we know if a thing is a right, we can establish the moral precept: the right action or
behaviour. The norm comes after the knowledge of the right. The being of rights comes
before the prescription or the norm. The function of the judge is to state the right or law.
Juridical conflict: when two people claim that they have the same right for the same thing
or action. Cf: Solomon’s litigation.

“Juris-dicción: literalmente significa ‘decir’ el derecho.”. This is the function of the judge.
And is written in infinitive form. Because you are saying something that is, not that should
be. The sentence is an inform by an expert (from a proficient, a “perito”). “Es un informe
pericial”. The sentence, properly speaking, isn't a norm or commandement, but a dictum
or an act of knowledge. An act of knowledge: this is from this. Nowadays, this is darkened
due to the fact that people believe that the function of the judge is stating what is just and
commanding the just action at the same time. The belief that a judicial power exists and
judges aren’t just experts in crime, but have the power to command and order things.
“Que la jurisprudencia también es jurispotestad”.

For a long time, there was the belief that the judicial power was in the hands of kings and
lords, and that they also had the power to coerce the guilty ones to repair their damages
and crimes. I think the professor suggest that judges should not have power, only
authority. Society, by means of the judges, gives the beneficiary of a judgement the power
to coerce the guilty.

The punishment systems of ancient societies were based upon vengeance. The law of the
Tailon was given to regulate vengeance. Vengeance is only bad when there is another
form (cf., the case of the major and his daughter). Revenge isn’t bad in itself.

The juridical science has to understand reality in such a fashion that enables us to identify
attributions in reality. How can we determine what is due to each one? The jurist needs a
series of concepts, categories and reasonings. The vast majority of those categories have
something artificial, because reality doesn't have such clear concepts. Juridical fictions
that we create for precision. E.g, the concept of legal age is something artificial, we’ve
created this for practical purposes. With this concept we can determine what is due to that
person (being able to vote, to have a job, etc.).

Class 04 14/XI/23
 Realism states that juridical norms are norms by their content. In normativism, the
juridical norm cannot be distinguished from the moral one. Sports norms are sports norms
because their content is about sports. Normativism ignored content and focused on
coercion. Sports norms aren’t sports norms because of the possibility of punishment, but
from their content. Therefore, juridical norms are those whose content is the ius.

Juridical norms are attribution’s rules. They don’t say what to do, but who is due
something. They aren’t prescriptive norms. They don’t say who should be the owner of a
seat, but who actually is. “La norma jurídica regula el derecho en tanto que ser”.

Kelsen fortunately states that the juridical norm has an hypothetical structure.
Facts supposition — juridical consequences. However, he reduces the juridical norm to a
penalty one. Kelsen, as a normativist, is identifying the consequences with a coercitive
consequences. Ius doesn't always have to be a penalty. It can be something positive or
negative. It could be a benefit or a burden. Why is the juridical norm for Kelsen always a
penalty? Because he thinks that fact supposition is always an action. Nevertheless, it
doesn’t always have to be an action, it could only be a mere fact: your surname is Aalto.

If H (Supuesto de hecho) — C

Facts supposition is something that has happened. We have to distinguish between

moral judgement and juridical judgement. The latter is about the verification of facts. The
question is transforming an action into the cause of an attribution, that is what law is
about. There are things that we don’t bear with juridical attributions. We don’t transform
them into a fact supposition. There is a difference between legalisation and de-
penalisation of something.

Class 05 15/XI/23
 There are common good that can’t be distributed, e.g., the air. From the
distribution of common goods comes rights. Dividing a common goods isn’t decomposing
that good in its constituent parts. The example of the division of space in a park.

Common is common if it’s partaken by everyone, if it’s communicated in the

original sense of the word.

Law is something that equalises us in a relationship pertaining to common

good. We can’t establish any kind of relationship or commitment. They are only valid if
they are within the limits of common good. The foundations of contracts are the willing of
the parts, but common good.

The capacity of contracting is given to us by society. A voluntary position between

two parts regarding common good.

For the good to be concrete, the subject of the good must be concrete. The
problem of specificity is not only pertaining to the common good, but of all goods.
When we talk about common good, we are referring to the perfection of a society. Private
contracts are a specification of the common good. Good is a perfection. Goods are what
makes human beings perfect. The good of a family is what enhances the perfection of that
family.

Correct attributions rely on choosing the right principles of inequality (discerning

who enters from those who don't). Wrong inequality principles: letting enter a school only
the blonde ones. The way of access to a good must be coherent with the good itself. This
is called making correct (not unfair) discriminations. When you don’t discriminate
correctly the access of a good, you’re worsening that good: we aren’t attributing the same
good. For example, there isn’t a university if you admit equally people who have finished
high school and people that just have finished kindergarten. Relevant inequalities. We
have changed the nature of the good. There’s also the example of playing football with
elders, children and adults: that isn’t football truly.

Letting people who had not reached the legal age marry, is worsening marriages.

What Kelsen viewed as universal was really a concrete case:

If Facts (crime) — Consequences (penalty)

 Subjectivism understands penalty as taking from someone a legitimate right to
punish him. Instead, realism states that the penalty is the way in which the criminal
partakes in the common good insofar as he is a criminal. Crime hurts the common
good (the whole society). Both damages require compensation: a) material 1 compensation
for the victim (private damage) and b) penalty for repairing the common good. The
damage to the common good is questioning the validity of law (for example, the law
concerning private property when you steal something).

For sending a message that crime is an anomaly and the order of the law is true and
valid, we need to capture and punish the criminal.

Ius is a partaking in the common good. But, you could enjoy it or sustain it (with
the burdens of penalties). Penalty doesn’t depend on the interest of the victim, but in the
interest of restoring the common good. Thus, investigations of those crimes starts
immediately, de oficio, not by an interest of parts.

Penalty must be public, because what is at stake is the common good. It’s of public
interest. The sense of penalty is a retribution (“re-attribution”), a revision of what the
criminal has been attributed until the present time. The penalty, essentially, doesn’t have a
medical or moral function for the redemption of the criminal. If that were the function of
the penalty, there wouldn't be the need of making it public. If the end of the penalty
were the redemption or reformation of the convict, it would be subjective, since it would
depend on the moral needs of him.

The redemption of the convict could be an objective of the execution of the

penalty, but not the core intention of it, because the end of the penalty isn’t the
reformation of the criminal. One thing is penitentiary police (pedagogical question) and
other the end of the penalty.

Moreover, the end of the penalty isn’t the discouragement of crime. The
problem, again, is the subjectivity of the penalty. We could excessively punish an
individual with a policy that isn’t related to him. You aren’t making a re-attribution here.
Of course, the penalty could have a discouraging trait or effect. However, the discouraging
trait depends on how the others are: if they are righteous people, the penalty doesn’t work;
but, if they are demons, maybe the penalty work.

For the existence of the penalty, there must be guiltiness. The property of the
action is a requisite of the property of the penalty. Liability requires guiltiness. Even
negligence is punished. Also, pure objective responsibility.

1 Well, not only material.

 The necessity of attribution is beyond the possibility of blaming. The necessity of
imputation is beyond moral blaming.

The level of risk that a society allows, determines the scope of imputation. Where
do we settle the boundaries? It depends on the society that we want.

Social reasons equals to common good reasons.

Class 06 17/XI/23
The liberal approach is based on the theory of subjective rights. Natural rights also came
into play. The role of the State is to acknowledge and protect those rights.

Rights: the capacity of the individual to prevail against any attempt of enhancement
of a society.

What is social is instrumental to those subjective rights.

The author Richard Dworkin and rights as trumps. was a legal philosopher who developed
the theory of rights as trumps. This theory is associated with his broader philosophy of
law, known as "law as integrity." The key idea behind rights as trumps is that individual
rights are so fundamental and important that they can override and take precedence over
other considerations, including utilitarian or majority interests. Dworkin argued that rights
have a special status that makes them immune to certain types of trade-offs or balancing
against other social goods. In other words, individual rights are not simply factors to be
weighed against social utility or the general welfare; instead, they function as trumps that
can override those concerns. This perspective challenges the idea of a straightforward
balancing act between individual rights and collective interests. Dworkin's theory implies
that certain rights are so essential to individual dignity and autonomy that they cannot be
sacrificed or compromised for the greater good. This emphasis on the priority of rights
helps to safeguard individual liberties and limit the power of the majority or the
government (CHAT GPT).

How can we justify punishment? We can justify punishment if we protect others' rights by
punishing the rights of the criminal . This is an instrumentalisation, because we use
punishment to enhance others’ rights despite trespassing the rights of someone.

The affirmation of the individual in terms of inviolability of certain rights (?) and the
affirmation of the bureaucracy in terms of utility.

Trump: a card of higher rank that can win over a card of a determined suit that had been
leading the game until that time.

What I have to stop a decision about the common is my own partaking in the common.

The problem of liberalism is that it states that rights and laws are pre-social. And
what is collective is instrumental regarding that individual patrimony.
Football cannot be explained as a form of satisfaction of the individual right of playing
football, due to the fact that there cannot be a desire of playing football if there weren’t
football. The individual desire of enrolling in a master comes into existence with the
existence of masters.

Individual desires are the interest of obtaining access to a social form.

Being a social being means that everything in us shapes socially.

When we are choosing a profession, we are choosing which people I want to be my

colleagues: either the doctors or the veterinarians.

We live in a liberal society. Thus, our reasoning goes from the individual to the society.

You can choose to be apart from society. Cynicism. Also monks. The habit is to show
contempt against the life of the world.

What function can marriage accomplish if it is understood that you can marry as many
people as you want, for the time you want…? It’s like if the football is composed of 200
against 300, and males, females, handicaps, etc. There isn’t football and there isn’t
marriage then. They are understood as social institutions that can be moulded in order
to satisfy and individual desire.

The relationship between moral and law is of paramount importance in the normativist
approach. Coercity doesn’t modify the moral norm. There are some people that
understand right and law as a part of morality: that concerning the virtue of justice.
Another thing is to distinguish between moral and law. There are things to which one isn’t
obliged morally, but juridically.

The menace of a penalty doesn’t transform a moral norm into mandatory, because it
already is. Nobody is obliged to avoid a penalty. Being obliged to something isn’t the
same as being exposed to a punishment. The menace of the fee while I’m driving. There
isn’t such a thing as a juridical duty.

Juridical norm: If Facts — Consequences. There isn’t any obligation here. Juridical
norms only state what happens in each case.

This approach doesn’t differentiate between moral and law. We are in the realm of
morality when we talk about actions that should be realised and actions that should
be avoided. We pass into the juridical realm when we talk about how should we answer
the action: attributions and actions. The moral question is “thou shall not kill”. Juridical
question: “if someone kills, then something is attributed to him?”. Juridical stuff is about
attributions to determined subjects.

Saint Thomas Aquinas said that suicide was an offense to the commong good. Today, we
don’t punish suicide.

Norms make sense if it is possible to do the good but not virtuously. The norm prescribe
the action, but not the perfect motives.

The difference between moral and law relies in that the moral norm that prescribe an
action when you combined it with the menace of penalty (reinforces the prescription with
the menace of punishment) is transformed into a juridical norm. When a criteria of
attribution comes into play.

Saint Thomas Aquinas: Lex non est ipsum ius, sed aliqualis ratio iuris. Concrete law is a
rationalisation of law.

Morality: what kind of person you become. Types of people.

The difference between natural law and positive law

This has become a moral debate. The debate between iusnaturalist and iuspositivist. One
thing is law and the other is moral.

LAW=NORMS

Lex iniusta est aut non est lex? Iusnaturalists say that this norm isn’t a law because
it is immoral. However, iuspositivist would say that it’s a law even if it is immoral.

The debate between natural and positive law has become a debate on whether the
relationship between moral and law is essential or accidental.

One thing is that the desirable law was just, another is that it should be necessarily
just.

Positivist solutions:
a) Law should be given by a superior instance, like the Constitution.
 b) We can put a limit to immorality. Problem: there isn't a law without a legislator.
So, the power makes the laws.
c)

Positivism was good until Hitler.

In positivism, there isn’t another law than positive law. They supposed the disapparition of
natural law. There isn’t a natural norm that is in itself coercitive. The coercion is added by
the ruling power. Non coercitive norm is equal to the moral norm. Thus, it’s the power
that adds the coercion, so it puts the juridical norm.

In realism, the distinction between natural and positive law is the distinction between two
different causes of law. In realism, law is the thing (ius). The two causes: a) human will
and b) nature. STA: just is what adjusts to something: a) ipsa natura rei (by the nature of
the thing) and b) ex condicto (by convention, either public or private, the public convention
is law, and the private is the contract).

The practical living within mankind.

It’s just by nature to punish crime. It’s just by nature to pay what you’ve bought.

You can do an action that is both just naturally and positively. The two sources of
fairness: nature and convention. Assassination is naturally a crime, but the punishment is
concreted by the positive or conventional dimension.

Natural law doesn’t mean that the context is a natural one, it could be rather a historical
one. For example, buy and sell are things that have evolved with history. What causes the
thing to be ius is the nature of the relation with the thing.

Aristotle and the discussion regarding natural law. He said that some people said that
there isn’t natural law in human things because human stuff is mudable. Instead, natural
things aren’t mudable: the same fire heats equally here than in Persia. Aristotle answers
saying that human nature is mudable. But not the metaphysical nature, rather the
practical nature of subjects. He illustrates this with the example of a man that has got
mad and wants us to give him back his weapons, and we do the just thing by not giving
him back the weapons. In this case, the nature of the loan was changed (more concretely,
the nature of the lender). How we understand the human being in the relationship of
loanship. This is how we understand practical nature. A nature for establishing
relationships.
Class 07 22/XI/23

The nature of the thing, nor the metaphysical nature. The condition of the lender can
change, so what is just by nature can change also. This is the classic conception of natural
law. Natural law is a part of the political configuration or political order (“ordenamiento
político”). Outside the polis, there can be rights, because only within the cities the
conditions of attributions are fulfilled.

The distinction between natural law and positive law is the cause of being a law. There
isn't a distinction between two modes of law. They share the same mode or type of being a
law. The common good has to be real for the rights to be real.

Loans don't exist by nature, but it’s of nature that we consider just to give back what we
have lent. The nature of the thing is contextual. The sense that things adopt in a given
situation or in a given society. The sense acquired by things when we live together.

Writing natural law isn’t the same as transforming it into positive law.

Natural law has a critical function, not a dogmatic one. Habermas said that a potter
sometimes has to renounce to perfection. The same applies to judges. A judge can
understand that the letter of the law sometimes isn’t just. He has to interpret the law in a
way to favour the case. I have to step aside a little from the law to find what is just. This is
what Aristotle called επιείκεια (an interpretation of the law). This correction of the law is
based upon what is fair by nature. This is the critical function of the classical natural
law: to correct the law.

What is just by nature (in the classical teaching) is the result of prudency. You can see
prudence when you don’t give back the weapons to someone who has gone mad. Law
requests you to forget the circumstances of the case, better said, to take them as
irrelevant. But, sometimes you gotta take into account those circumstances to decree
what is just or fair in a given case.

Classical iusnaturalism means that to know what is just or fair we have to consult the
nature of the things. There, we can find the perfect measure of what is just.

In this approach, the judge doesn’t reason like a syllogism. He, instead, interprets the law
and adjusts it to the case. The sentence in that case isn’t acceptable. He presupposes that
there is a measure of what is fair that isn’t within the law. This is due to the fact that we
perceive that there is a measure of what is just that isn’t in the law.
Law is exhaustive (taxative), that is to say, not flexible.

“La ley no se dicta para la muerte, sino para la vida”.

Law students are taught to consult the positive law, but not to consult reality. To
approach reality as a measure of what is just.

One objection from positivists is that they say that iusnaturalists’ approach tends to let
loose subjective interpretations of laws. A justice with subjective elements. Introducing
subjective factors. But, reality demands us to be prudent. Reality just doesn’t fit 100%
to the law. The correct subjectivity is the subjectivity of the prudent. Only he is in
condition to give a correct appreciation of the matter. Law isn’t the only and, of course
not definitely, measure of what is fair.

The reality itself of things establishes attributions. There are attributed things by the
nature of things itself.

The modern conception of natural law. Here, the natural law is beyond the scope of the
political order. Here, natural law is an extra-political approach. Here, natural and positive
law differentiates as meta-political law and political law. Natural law (here) has evolved
into human rights. Rights we have for being human beings. Supposedly, from the human
nature one detaches some rights. In positive law, you are a subject of rights only if you’re
a citizen of a given society.

There isn’t derivation from the natural law in the classical approach. In modern times,
people understand that the positive law is derived from the natural law. Thus, positive law
would be the concentration of natural law in a given society. The relationship between
what is universal and what is particular.

In the classical approach, natural and positive law are exclusive to each other.

Rationalism sought to convert all human knowledge into exact sciences. Let’s transform
ethics into an exact science. Remember Spinoza: Ethica more geometrico demonstrata.
They’ll try the same with law. Authors: Hugo Grotius, Pufendorf, Wolf and Kant. To
transform prudence into science. There is only science if it is a deduction present.

The starting point is human nature. From human nature we should derive rights.
Universal laws are perfectly deduced. For human nature being universal, what you can
deduce from that should be universal too. This will give us a perfectly rational law. A law
that hasn’t emerged from history.

Law can be understood in two fashions: a) as a norm and b) as a faculty (“facultad”).

Let’s now rationalise positive law with natural law. Natural law is gradually transformed
into the rationalisation of positive law. From codes to positivism. A paradoxical journey.

Then some people deduce from human nature, not norms, but subjective rights. Authors
here: Hobbes and Locke. Maybe Rousseau is in this line also. Hence, the theory of natural
rights. Two lines: rationalist line and empiricist line.

Normativisim postulates a universal normative system based on human nature.

Class 08 23/XI/23

The other vision of the natural law: subjectivism.

Natural law will be the set of subjective rights that you can derive from human
nature. Faculties of the subject. Here, ‘nature’ refers to the human nature considered
metaphysical and meta-historically and meta-political. Natural: pre-political or meta-
political. We are diverging from the classical approach. Faculty, power or freedom. Right
in this approach is a capacity of action by the subject.

Classical approach starts from a shared world, a common world in which

everybody partakes. So, you can determine the ius. The starting point of law and rights
is an experience of a shared world. Rights are ways of participating in a world.

The starting point of subjectivism is a being (the human being) against a world that
he can domain. Our capacity for prevailing against the world. What action of domain can
we exert upon the world. We are not seeing the world as something we partake in. An
instrumental relationship with the world. The world is a pure object. Something put in
front of us. Subjectivism supposes an individualisation of the law. Subjective law: forms
of domain. Thus, law and rights contrast themselves, because laws limit my forms of
dominion. Hence, the exercise of imaging a natural state like Hobbes did. That situation
will be a bellum omnium contra omnes situation. The limit of my domain is a greater
domain than mine. Hobbes: natural law is an ius in omnia (right to all things).

Human nature hasn’t limits neither in their capacities nor in their needs.
Satisfaction of needs is relative. The enumeration of natural rights are limitless. Every limit
we put is just conventional and not real. Nowadays, we have the difficulty of arguing
against doing what I’m capable of doing (that would be my right). The only limitation
for my rights are the factical, that is to say, what in fact resists my power. In this approach,
we can’t understand penalty as a right, because it would be (here) a dominion against your
dominion.

(Alfredo) Freddy (Cruz) Krueger.

 Nature is pre-political. Politics are instrumental to this approach. The arithmetics
of power. How much we have to restrain natural freedom in order to obtain the
maximum of effective freedom. How much we have to limit the rights of others. It’s a
calculation. Human rights implies that this is the logic of politics. A calculation of profit or
utility. This is reducing social life to economics. The benefits-costs calculation.

Politics are good if they recognise facts (what has been given).

The two major liberal revolutions: a) American and b) French. They overthrow
their political orders and justify these actions by appealing to facts or what is natural.
Hence, the Declaration of Rights of Man and of the Citizen and the Bill of Rights of the
Declaration of Independence. Revolution is a circular movement (like those of the stars).
Revolutions means coming back to the origin. Tradition is the loss of paradise.

The intention of The Universal Declaration of Human Rights is to anchor

ourselves in nature against history. Justification is to justify a better acknowledgement of
what is natural. It’s important to realise that this way of thinking is ingrained in our heads.

All human rights are based on the fundamental form of dominion: self-dominion.
In this approach, the paradigmatic form is the right of property. Saying that
something is my property, then I have attributed a total dominion of a thing.

The theory of John Locke (it has its origins in Francisco Suárez). Locke states that
the foundation of property is labour. Through labour man footprints nature. The Moses of
MichelAngelo says a lot about MichelAngelo, not about the marble. Property is a pre-
political right. The State can’t redistribute property, because property was established
before the State.

Marx has the same theory of property as Locke. However, Marx affirms that labour
is always collective, therefore, property is always collective. Hence, Marx’s theory of
surplus-value. The worker’s labour always surpasses his wage. That is what the theory of
surplus-value says. Alienation We’ve seen that this approach can also be applied to the
contrary political intention. Nothing ensures that we can’t use this to support the contrary
position. It’s an ambiguous approach.

In Hobbes, the theory of natural rights has the intention of limiting political power.

It’s commonly said that human rights are untransferible (inalianables). This is a
non-sense, because it would imply a limit to my self-dominion. If I have right to live, then
I can kill myself too.
 If we want security and exit from the state of nature, we have to establish a power
that protects us. But we need an unlimited power to protect us. So, we establish the State
as a Leviathan. It’s false that the theory of human rights is an instrument to limit
power. Hobbes is another example of using Locke’s theory to a contrary end. NB: we are
amplifying the power of the State. As far as we need the protection of the State, we are
giving more and more power to the State.

In the modern approach, the family is an instrument to acknowledge the individual

rights of the father, the mother, and the children. What is just is determined by the
individual rights, not by the nature itself of what is a family and what behaviours are
expected to occur within the family.

Giving up my self-dominion is an exercise of self-dominion. Why not?

Damage to others is illicit when the others don’t want it, because it limits their self-
dominion. I can do every action I want, except if that action limits or denies the self-
dominion of others. But, wait, the limit of my self-dominion has to be determined by
myself, by my interests. If not, that would be a damage to my self-dominion. We give
up our self-dominion because we have an interest in being subdued to the interest of
others. That happens when I got a reason to limit my self-dominion.

Being punished is voluntary, but the punishment itself is determined by others.

But, to not to trespass my self-dominion I have, as well as to accept it, determined the
punishment.

The concept of dignity. Human dignity is related to human rights. People say that
human rights are an expression of human nature. Dignity is based on human nature.
Dignity is, again, sui iuris (self-dominium). We fall into the same problems again: legal
prostitution, euthanasia and so on. This concept of dignity is incompatible with one
important dimension of the human being: his social nature. Respecting human dignity
means to respect a limit: that man is not only a “piece” of society. Well, we have to reach
a concept of dignity that means that enhancing the social dimension of the human
being enhances his dignity. Nevertheless, we need to develop a concept of dignity that is
not based on sui iuris, but that consists of what happens when men enter in society or how
the process of socialisation affects men. The process of socialisation implies that men left
to be an individual. Men are capable of being more than just individuals. That
transcendence of individuality implies that we are able to partake in common goods. A
pure individual is only capable of individual goods. Being able to go from an individual
good to a common goods is what provides human beings with dignity, because the latter
are more perfect than the former. Bonus est difussivum sui. The more perfect the good, the
more shareable. This is also the difference between phonos and logos. Animals have voices.
But, only humans have languages. When pure voices you can only express individual
things: fear, hunger… Instead, languages are the capacity to explain what is common. All
languages aren’t individual. All languages incorporate us into a community. Incorporating
in a community means being able to share common goods. Thus, in some sense, languages
give us dignity. Being a subject of common goods. But for that I have to belong to a
community.
Class 09 24/XI/23

Dignity has to be understood in accordance with the natural sociability of man.

The transcendence of our own individuality. Learning a language is surpassing my

condition of individuality. Being able to partake in common goods. Cutting your tongue is
attempting to your own dignity, because it enclaustrates you in your individuality.

Slavery is serving in a society but not forming part of it. Aristotle said that slaves
were “animated instruments”, like animals. Life: to move by oneself. It’s possible that a
society isn’t unjust even though we have slaves. The incorporation in society implies a set
of rights. That means there are a set of things in society assigned to me. This set of right
would be the expression of my dignity in such a society.

Therefore, the expression in rights of human dignity doesn’t admit an

universal measure. A society cannot be held in an approach in which you can do
whatever you like with your self-dominion.

In certain societies, polygamy is a form of respecting human dignity. It isn’t the

best form either. Surprise, madafacka. Burka can seem wrong with our western eyes, but it
has its benefits for a muslims societies.

The starting point is establishing universal laws for everyone.

The more perfect the human, the more capable of what is common. Virtues make
ourselves more capable of the common.

The subjectivist would say that you can renounce to your right of others respecting
your life. Nobody has the obligation to kill you. Euthansia is demanding death from the
State. Euthanasia can’t be denied from the natural rights approach, because they’d be
limiting my self dominion if they don’t kill me. If someone isn’t obligated to kill me, then
my self-dominion would be limited. To respect my self-dominion, society has to obliged
someone to kill me.
 “Partaking in society by my part consists in not killing you” — that would be
Alfredo’s words. That would be the words of a republicanist.

Justifying a political change consists that that change refers to the pre-political.
Natural rights can only enter political life in a revolutionary way. Natural rights only can
be summoned to delegitimize a political order, but never to legitimate one. Because
there isn’t a historical way of satisfying human rights. E.g, there isn’t a educative system
that is the perfect institutionalisation of the human right to education. The same also
applies to human rights to free speech, etc.

We could always say that there is inequality in societies. Human nature, abstractly
considered hasn’t limitations.

The American Revolution had as an immediate motive the treatment of the

colonies by the British Parliament. The metropolis wasn’t respecting the rights the
colonists had as Englishmen.

This change of rethorics occurs with every natural right. The first being the right to
free consciousness and religion. In the religion wars, the idea of faith was broken, but
not the relation of politics and religion. However, politics passed to be the base in which
you will put the religion: we are the French, subjects to the King of France, we can be
huguenots or catholics. This is introducing freedom of conscience. We now see a change
in the political order in order to preserve the political order. A change for political
reasons. But some people converted this prudential decision into a dogma. Prudent
decisions can work on a determined context, but not in all.

At some time, it was decided prudently that kids went to school instead of
working. But, we have turned this decision into dogma. This makes all the theory about
human rights a hazard to democracy and for politics. They present as dogma what would
be a prudent decision. They’re limiting the field of political prudence.

We have an a-political certainty about human rights. Thus, we are shortening the
field of prudence in politics. This supposes a menace to democracy. More and more we see
questions that are out of political deliberation because they are “human rights”.

Nowadays, there is less and less politics.

Class 10 30/XI/23

Intransferability limits authority.

Hierarchy among human rights is fully subjective. All hierarchies would imply a subjective
valuation.

They cannot be measure in function of something common. They aren’t

“conmeasurable”, that is to say, being able to be reduced to a common measure.
Because they don’t have anything in common.

The fundamental rights’s theory. People identified them with natural rights. They are a
limit to the action of power.

However, in a realist approach, we can also talk of fundamental rights. We only have to
valuate what is fundamental and what is ordinary within our common good. Thus, we’ll
have ordinary rights and fundamental rights. BOOM. Political life requires debate and
dialogue. The contrary is called administration. A Constitution with too much material
content instead of formal one, paralyses political life. E.g, you cannot debate about the
speed limits if they are written in the Constitution.

When a Constitution has parts that cannot be reformed, you’re unconsciously establishing
the need of a revolution to change those parts.

That fundamental part depends on the self-consciousness of a given society. How a society
understands itself. Which aspects are more concerned with the core of our identity. For
example, religion.

Even something that was related to the identity like being christian, could be subject to
disputes (protestants against catholics). Discrepancies.

We can only debate in a frame in which there are things that are undecidable.
Paul Ricoeur: in our societies, we understand rights in accordance with merits.

Nowadays, everything can be turned into a right. Think on the WOKE movement in
United States. If we accept the causes (human rights) we should accept the effects (Woke
culture) .
Author: Mary Ann Glendon. Willful thinking.

Human rights as the fair thing is like establishing the same diet for every human being!
Class 11 01/XII/23

Human rights again. The spirit of the Universal Declaration of Human Rights was initially
a proposal of ideals that should be assumed by all countries as far as their historic
circumstances allow them. A proposal of rights. They weren’t initially a letter of rights.
You can find this in the preamble, but latter in the document you’ll find the contrary.
You’ll find the contrary because the redaction is extensive: all human beings have… So,
they just messed it up.

Some people say that we should keep human rights and discern when we can apply them.
The problem with human rights is that if they aren’t absolute, they are unreal.

Maritain said that in the death penalty we don’t take from the prisoner the right to life,
only his exercise. But that is a psychedelic solution to the problem. Whereas, John Finnis
said something similar about a case when you have to choose between the life of the
mother and that of the foetus. They’re walking on the balance rope.

The simplest thing is to recognise that there aren’t the absolute morals that John
Finnis stated. NB: killing is not the same as homicide. Something like that happens with
human rights. There doesn’t exist rights that depend only on the human condition of the
subject.

An obsolete distinction: prima facie rights (moral rights or hypothetical rights) & effective
rights. The firsts ones aren’t rights, they are in potency. They are waiting for the adequate
circumstance to be rights. Their effectiveness depends on historical or contextual factors.
But, the Human Right Courts are super-contextual instances that judge about those
rights. That, my friend, is a contradiction.

One option is to call them “juridic ideals”. Then, you’ll never judge about juridic ideals
and neither will you have an international court that judges on them.

Cases when you have the right and not the exercise: when you inherit a property being not
of legal age. In this case is different due to the fact that the exercise is limit for a given
period of time, and not forever like the case of Maritain.
Giving a right’s definition implies making that right real.

You can only punish a traitor or a deserter with capital punishment, because a deserter
flies from death on the battlefield. One principle of law is that you cannot benefit from
your crimes.

What should we do? To create the conditions of the common good that allows to increase
the rights of education, health, etc.. Anyway, we should enhance human life. Education
right should be a form of partaking in the common good of a given society that is
education. This approaches confirm the policity of the law. That is to say, that rights
only exist within a polis, a given political society. The only way in which these rights
can be applied is to create a corresponding political model. Rights aren’t independent of
political order.

A vindictive culture: woke movement. In contrast, the Japanese example of rights based
on merits. Rights are true as long as burdens are true.

Human rights are stated in order not to instrumentalise human beings. What have we
got? Reciprocal instrumentalisation in our societies. The employee instrumentalists the
firm and vice-versa.

What gives human dignity is its capacity to enter a given society, that is where value is.
The value of freedom doesn’t rely on the mere choosing of options, but in the options I
have available.

Human rights are an answer to totalitarianism, because totalitarianism reduces the human
being to being only a part of society. We gotta limit the socialisation of human beings. For
that reason, we give each human being a set of individual rights that doesn’t depend
on society. They aren’t the result of partaking in a society. However, the socialisation
problem isn’t a problem at all of totalitarianism. The real problem of totalitarianism is that
the state instrumentalises men. Is not a problem of excessive socialisation, but a lack of it.
The slavery societies didn’t instrumentalise citizens, they only instrumentalised slaves
because they weren’t citizens (lack of socialisation).

Hayek and neoliberalists: the theory of spontaneous order of society and the absence of
politics. It’s like building the house from the roof.

Aristotle and Cicero: we all are servants of the law to be free men. They said that law and
freedom are compatible.
Methodological individualism: what is social is determined by the actions of individuals.
Natural sciences: from the individual to the systemic. The same model is applied to social
sciences. They think that collective equals spontaneous. Going from micro to macro.
Solution to this: returning to practical reason. In human beings, everything is a relation
of means to ends, but the ends are intended. There can’t be unintended ends. This is the
return of politics.

You know what an order is when you apprehend the end or the objective. The end
can only be intended. A human state of things can only be an order if the end is
intelligible.

The concept of order applied to nature is theological: you need God to provide nature
with an end. If we lack this, we never perceive an order in nature: we’ll see an equilibrium.
Order is not the same as equilibrium.
Class 12 05/XII/23

Liberal critics of utilitarianism

Totalitarianism: according to the liberals is the excess of socialisation of the human being.
Human rights are the way to stop it. However, instead of excess socialisation, there is
an instrumentalisation of men. Humans are exploited to reach a common good in which
they won’t partake.

Kantianian critics of utilitarianism

The other diagnostic is also erroneous: the Kantianian diagnostic of utilitarianism. All
means ordered to an end: that’s utilitarianism for Kant. If duty is justified by a good,
then that duty is hypothetical, and is utilitarianism. The way to avoid utilitarianism is
that duty must be absolute. What does this imply for rights? It implies that rights
must be absolutes in order to avoid utilitarianism. In other words, you cannot justify
rights by goods or the bloody common good.

Starvation robbery. We justify private property according to the common good (its basis).
When private property is opposed to the common good, then private property has failed
as a peaceful and diligent form of partaking in the patrimony of society. Therefore,
starvation robbery (“hurto famélico”) is licit. The right to partake in that patrimony
prevails over private property. Private property isn’t an absolute right, but it’s ordered
to the common good. Property depends on the common good. The bread of the
shopkeeper doesn’t belong to him when someone has just been kicked out of the equation
by the private property system.

Stealing is always bad, but you have to discern when it’s morally wrong to take other’s
things. Sometimes killing isn’t homicide. One bloody thing is the description and the
other bloody thing is the moral qualification of the act. The thing that put these lads
nervous is that it seems that it all depends on the circumstances. Modern minds seek
certainty. They avoid uncertainty. They want bloody Newton’s certainty. They seek
science, but they’ll only get prudence.

Prudence is the kind of knowledge that concerns truths about the human being. A
wrong action is an action in which we falsify ourselves. The knowledge about what is
specifically human it’s called prudence. Without prudence, justice becomes pure science,
like with classical mechanics and the law of gravitation. The relation is fixed.
When we lose human rights we lose an “instrumental” that had given us security. We feel
insecure without them. The problem lies on that such a security is fictitious/fictional.
Human rights foster that the formation of jurists is technical and not prudential. They’re
trained to apply a formula.

What kind of knowledge is the knowledge about rights? Both the legalist (normativist)
and subjective rights approach understands law as an application of certain rules or
measures (given beforehand). Subsuming a particular case into a measure or what the
norm says. Norms are the glasses we wear to see reality. Norm is like a rake with which
you rake from reality what you can. They postulate that the norm’s system is complete.
They think that juridical reasoning has the same structure as a syllogism. As a matter of
fact, juridical reasoning isn’t deductive. Judges make argumentations, not
deductions. Many people said that the juridical sentence is generated in an inverted order
compared to its mental genesis. The “germen” of the sentence is a tentative
pronouncement of judgement. E.g., “uh, this seems like a first grade homicide”.

A case is an interpretation. What are we seeking to define the case? Judges seek to
reduce the case to a juridical type they know well, like reducing a fact to a first grade
murder. But that is an interpretation, for there aren't two identical facts. We are
applying an analogy, since there aren’t two identical cases or facts. We’re making an
interpretation. The judge gotta choose which traits he selects or not.

Erroneous: first stating the case and then seeking the norm is a posteriori
arrangement. There isn’t any sequence like first establishing the case and then seeking
for the norm. That linear structure isn’t real. The only thing real is that both the case
and the norm (the applicable norm) and the fair sentence are elements that are determined
at the same time. It’s like juggling balls, man. Prudence isn’t a technique of application.
We finally get to know the law in its application. The same thing happens with the
case. I only establish the case when I applied the right law?

You don’t apply the law. Instead, while you’re seeking the application of the law in the
case, you’re finally understanding it. Understanding a law is about knowing what that law
says in the concrete case. Who bloody knows the law? Who knows it in the particular
case.

Some people say that interpreting the law is understanding it.

Cover legal vacuums. We go from the case to the normative system. If it happens that
there is a case that cannot be “connected” to norms, we must admit that such a case
doesn’t belong to law. It probably belongs to other fields. If we do this, there will never
be legal vacuums. We are stating that the lawful (what is juridical) happens before
what is legal.

What Alfredo is saying is that law occurs independently of the legal system or set of
norms that already exist. The phenomenon of legal vacuums is only explainable from a
realist approach of law. Normativists: if there isn’t norms, there neither is law nor legal
vacuums. If we can judge a legal system with legal vacuums, we are supposing that
there is something more than just the normative system. It could be compared with
medicine: disease is more extensive than medicine. A syndrome is a set of symptoms that
cannot be classified as a determined disease. The same happens in law. You valuate the
system with the problem.

How do we palliate legal vacuums? Going to the sources of law and acting as a legislator.

Is the legal system a device to know reality? Yes, If we want to know reality, we consult the
“instrumental” that we have. We consult the laws that could aid us in our search. Laws are
means to know what is just. “Interpretar la ley en función de aquello para lo que la quiero”.
That is the fundamental criteria.

The criteria of interpretation of the norms is to state what is just. A judge cannot interpret a
norm like a scientific of law. For the correct interpretation of the norm, we need that the
judge was a correct judge. In other words, that he does his job as a judge.

Law is, therefore, a resource to aid the judgement. But it isn't the only resources: you also
have facts, circumstances, your own sense of justice. The problem of law is that it can also
limit our capacity to discern. It limits the “prudenciality” of our judgement. That limitation
precisely usually serves to avoid errors or mistakes.

We must reject the deductive, technical conception of the application of the law. The court
decision or judgement never is a logical deduction from the law. This logicist conception of
the application of law belongs to a normativist concept of law. Truly, the law doesn’t
apply, but interpret. The law is understood only in the context of the case. The law is an
instrument to find what is fair in the particular case. Law accommodates to reality. This is the
realist conception of law. Law is a res that is in reality and we should find it. We should
identify it.
 LAUS DEO

EXAM!!!! 13/XII/23

Maximum: 2 pages.