We explain what a legal system is, its structure, importance and other characteristics. Also, legal loopholes.
What is a legal system?
The legal system It is the systematic set of laws and regulations that legally make up a State. That is, the total of the rules by which a State or a nation is governed at a given moment in history will be its legal system. In the case of modern States it corresponds to the Constitution or Magna Carta.
The legal system not only includes the “new” norms with which a society chooses to govern itself, but also the traditional set of rules that make up its way of understanding justice. For that reason, There are two different ways of understanding it and to think about its origin, which are:
- The normative current Anchor in the natural law or natural law, states that every legal system is sustained based on a series of value judgments, beliefs and convictions that would be somehow inherent to human beings.
- The institutional current Prefers to think together legal positivism that the legal system is formed by society itself, by its mechanisms for guaranteeing legality and institutionality, as well as its application criteria, the result of a consensus within society itself.
We should not confuse the legal system with the legal order, which would be the set of rules within the legal system to govern a specific area of society.
Characteristics of the legal system
All legal system It is concrete and organic. It consists not only of a body of standards, but also of those necessary for their modification, elaboration, development, application and evaluation.
Their regulations are all state that is, they are dictated by the institutions to which the National Constitution grants regulatory or sanctioning powers. have a formal unit that is, their production obeys similar patterns of reasoning.
Structure of the legal system
All legal system It is structured based on a hierarchical criterion in the laws. In this way, a system of predominance is built between the broadest ones over the more local or specific ones.
This hierarchy is understood from the so-called Kelsen Pyramid, a form of graphic representation that organizes the different types of laws and regulations of the legal system.
At the top are the constitutional laws and international treaties signed by the countries, and at the base are the local or parochial laws and institutions, passing through various steps. Each legal system establishes its own Kelsen Pyramid.
Importance of the legal system
The legal system It is essential for the construction of a peaceful society with the rule of law, capable of governing itself through a structured and coherent series of rules.
Prevent laws from contradicting each other take precedence or situations that are impossible to judge. Without a firm hierarchy and an organic legal system, there is rise to the law of the strongest and other forms of imposition that would result in social violence.
Legal loopholes
It is known as a legal loophole, legal vacuum or legal limbo. specific issues that lack legislation in a specific legal system.
It is a situation of legal vacuum, since there is no sanctioned rule that allows us to know what to do or how to deal with it. Therefore, requires judges and jurists to choose a substitute norm that is, to choose a law that regulates a similar matter or that can in some way also be applied.
Legal antinomies
Similarly, legal antinomies are called contradictions between the norms of the same legal system that is, to the case in which two or more rules apply to the same case indicating different or even contradictory behaviors or resolutions.
This antinomy can be total (when a choice must be made between one of the two norms to apply) or partial (when the issue that one norm deals with is also included in that of another norm that is different in another sense). A coherent and well-designed legal system, first of all, should be completely free of legal antinomies.
Continue with: Organic Law
References
- “Legal system” in Wikipedia.
- “Legal system” in Legal Encyclopedia.
- “Sources of law. Legal system” (video) in UNED Courses.
- “The legal system” in Color ABC (Paraguay).
