2. a)
.
other works in 'Ariel:' ~
:;;. .;.'
After justice
Parts of the law (in liaison
with J. Ruiz Manero)
Anthony Weston
Keys
to
argumentacin
Hans Kelsen
that is justice?
Ronald Dworkin
Seriously Rights
Ángel Latorre Introduction
to Law
Enrique Alcaraz and Brian
Hughes Juridical Dictionary of
Terms.,
Inglés-Españbl/
SpanishEnglish
L. Martínez and J. A.
Fernández Law Course Teora
Josep
Aguiló
Teora overview
of sources of
law
Luis María Díez-Picazo
Being
able
to
acknowledge
Alejandro Nieto
The judicial discretion
Carlos
Santiago
Nino
Introduction to the analysis
of law
Enrique Alcaraz
The
Spanish
Juridical
Liborio
Hierro
The
effectiveness of
the
rules
Juridical
3. Submission
I assume that many of my fellow philosophers of law
extraeza vern with the Title put this book: The meaning of law.
Some people have resonance-ing parecerque metafsicas
inevitable and undesirable, and that the use of that language (or
of the Terms: sense) suggests a aproximacina a certain way of
understanding the philosophy Teora year the law (such as a soft
intellectual activity and given to the conceptual confusion) to be
avoided at all costs. Other Pensarn that behind of that Title must
be some law that approach is that the reader can find in the
pages that follow stas of submission.
But I own several reasons for departing in this case of
presumed (or to be fair with the reader, ms that presumably) those
of my colleagues. One is that it is not a book you've written for
them to read other philosophers of law (which, of course, little or
nothing to learn in tendrn l), the openly put that I intend to
address estformado by students of law, lawyers without special
training or terica and people outside the professional world of
law, but interested in acquiring some training or Juridical of
carcter b physical. Another reason is that the question of the
meaning of the law can be formulated, in my view it on a
reasonably clear, but that does not assume, of course, suggest that
for her there is any simple answer.
As I see it, mane-ras habrabsicamente two different-butconnected s quse understand what you mean by the law sense,
two senses of meaning. On the one hand, the question seeks an
explanation of the law as social and fenllleno Historically, this
requires, in turn, have some very s basic response to questions
composed of 10 the following: for qu, and since spread, there is a
law in qumedida consists of rules, qurelacin saved with the moral
and the power to qusirve, social qufunciones satisfies cmo must
be quobjetivos and values and can-be-achieved with l, know and
how can be built qumanera Juridical science until an activity is
qupunto argumentative, how to be understood its implemen
interpretation. On the other hand, it Also ask whether the law (or
type of law) integrates a valuable social prctica, is a kind of reality
that can reach quizsslo fully understood by assuming a certain
point of view, and a reality that estahsim-ply to be known,
criticized or used strategically, but to be enhanced by the subjects
that are part of it. Not trying to be pompous, but I will say that sta,
4. or hese are the big questions of philosophy of law, and which
revolves around this book. What the reader can find an answer l is
not deep, nor new to these issues, but I think shay in these pages
some clear indications (or at least that has been my intention) that
can help in that task might be explicaciny con1prensin (from
within, taking a participatory attitude) of the law.
Inicila task of writing this book as if it were the revision of an
earlier book, Introduction to Law, published by Barcanova in
1985, but the result is-111E seems, a different book. I have used
many materials of that Introduction, CHAPTER but some are
brand new, others have built on the basis of several of my works
from the last years, and the general approach-and even style: ms
right now ensaystico-does not coincide with the first book,
although I believe that this is a profundizacin (and simplificacin:
These last couple are not Antag Terms cal) than alltratado. The
LAST chapter, conceptions of law, is a reelaboracin of an article
written for the Italian Encyclopedia, thank the editors of this book
so the perm to appear here.
That the book is addressed to philosophers of law should not
mean that much to some of them. My companions of the
department of philosophy of law at the University of Alicante: Juan
Ruiz Manero, Josep AguilJuan Antonio Gonzlez Prez LledDaniel
Lagier, rdenas Angeles, Isabel Lifante, Pablo Larra aga, Victoria
Roca, Macario Alemany, Juan Antonio Cruz and Roberto Lara,
have contributed in many ways to enable the book and to be better
than it otherwise would have been, and I am for it (and many other
things) grateful. I have contracted some adems a special debt of
gratitude that I hope will not want to be charged very quickly. Juan
Ruiz Manero leyel book, especially the first chapter, with the rigor
and acuity that characterize it and evitla Commission of various
errors (10 does not mean that you can charge those who have left),
in addition, some approaches of the book come from work we've
done together (but it did not mean to suggest that l estde not agree
with all the basic thesis or, Perhaps above all, how to expose them).
Josep Aguilme encouraged to embark on the task of writing this
book, I made many suggestions that I have been of great value and,
in particular, I influydecisivamente in no small way to approach
issues. Juan Antonio Prez Lledrealizun exhaustive examination of
all the work that has had the effect (AFTER to correct what bean to
correct) to be filled with tranquility. A rdenas angels owe especially
important algnaadido (compared to previous versions of the book),
as referred to consideracin standards as reasons for the action.
Isabel E Lifante leycon the ties that usually several versions of the
book, thereby contributing to a substantial improvement of the
whole work.
6. CHAPTER 1. For quel Law The ubiquity of law
the law of non-progress
The hiptesis Companies
Law without law?
The law and conflicto
CHAPTER 2. But one issue ques dicult law
definitions in the law
the definition of law issues and vagueness
ambigedad Some Conclusions
CHAPTER 3. Standards Law and Standards and
other standards bodies Juridical Quson Juridical Norms
and Standards Law as a set of rules of law parts
CHAPTER 4. Moral law and the standards of
morality Ques Juridical positivism and natural law that
remains CHAPTER 5. Law and Introduction to Law The
concept of power and strength
7. Law, consensus and ideological power law and
the Economic Conclusions CHAPTER 6. The
functions of the Law The law ANALYSIS
functional social functions of law Law and
Social Change CHAPTER 7. Law, justice and
human rights The concept of justice conceptions
of justice and human rights Justice CHAPTER
8. Law and Juridical Origins and development
knowledge of science Juridical Science Law and
Juridical knowledge CHAPTER 9. Law as Law
and agumentacin argumentacin argue Ques
Juridical On The interpretation argumentacin
CHAPTER 10. Conceptions of Law Introduction
The formalism Juridical Juridical Realism
Normativism The Juridical iusnaturalism
Marxism The current situation
Sinptico Index
8. Because the Law
The right is an omnipresent phenomenon in our societies.
Practically there is no social relation that not be, or may arrive to
be, regulated juridically. However, unlike the King Midas that all
that was ringing was turning into gold, the right does not turn
having nothing else to say into that juridical whole so that you
take interest . What's juridical is only an aspect of what's social
( than, according to the cases, you have a bigger or minor
relevance ), but that yes, the one that we can not do without if we
want to understand a certain amount of the world that you
surround us.
Stops proven, coarse with examining a daily newspaper of an any
day. The one that now I have at hand contains like more
outstanding news the following - of Judgment Day of the year
1999 -:
The overhead pirates continue to be inflexible when it comes true
a week of kidnapping; 35,000 people's picket comes face to face
tonight in Spain to the effect 2,000; A judge of Barcelona admits
the therapeutic use of the hashish and it absolves a prisoner; The
2.1 % will reduce the electric tariff for individuals next year;
Russians and chechenos combat business home in Grozni's front;
The bishop Uriarte blames ETA and to Government of the failure
of the dialogue ... Well Then, some of those reports have a
juridical manifest look: The kidnapping of an aircraft is a crime,
this is, a contrary act right side up prison, as also drug traffic is it (
but no consumption: The sentence of absolution of a sick person
of cancer that had been stopped with a certain amount of hashish
is based on that. But tan1bién in the other ones has a juridical
relevant aspect: The right may have contributed to palliating the
consequences of the famous effect 2,000 - and non-existent -: The
users of the affected services have perhaps obtained an
indemnification for the damages that would have been caused.
The cost-reducing measure to reduce the electric tariff is
consequence of the juridical power that it has the Government to
9. act at that field - the Piece Of Advice of Ministros -. The war is a
regulated phenomenon, to the less partially, for the right:
Standards exist . - of international Derecho that they determine
when the participation in a warlike conflict is legal ( or illegal );
And standards be more than enough how making war: For
example, be more than enough how treating the prisoners or to the
civil population: Not even the all voucher is admissible in the war.
And, in short, the right also is present at a typically political
activity like the played the lead in for the bishop ( in as much as
mediator ), Government and 1;1 terrorist organization: The
dialogue reference is done to - or the result of the same - - is not
he can not be not our own right side up -: The liberation of the
prisoners of ETA or the modification of his penitentiary situation
can not be done if not you are by means of juridical instruments
( concession of pardons, administrative dispositions ... ); And
redemptions independentistas suppose, among other things,
changes in the Constitution in Autonomía's Statute ( in the text of
the Constitution or in his interpretation ) and.
If we passed what he proves to be newsworthy in a newspaper on
to the aconteceres that configure our quotidian existence, right
side up we followed ourselves finding everywhere: Every time
that we took a bus ( and made a contract of transportation )
( according to certain standards of administrative Derecho - if it
has to do with a public University ), that we formalize a
registration to study at the University, that we bought something,
that we paid a tax or that they force a sanction of traffic on us. To
such an extent are juridificadas our societies than, frequently, what
in principle appears like alternatives right side up turns out to be
simply another way to Derecho. For example, you are spoken to
of " couples in fact;' ( their or by right ), but
In general it becomes to claim that also they should have a
juridical protection: This is, it does not have to do with an
alternative right side up, but of an alternative Right to the
established, that you not have prejudice on account of the sexual
orientation of the individuals, of the circumstance that the union
have or not formalized in a way, etc. And the crisis of the
administration of justice is making room in to one each time
principal use of form of resolution of conflicts eat arbitration, her
mediation or her negotiation negotiation - another example -; But,
again, it has to do with only alternatives to the judicial
10. mechanism, no right side up having nothing else to say: Those
procedures are, in part, regulated juridically; One negotiates
( think about his negotiations in case of divorce ) ( ( in the shade "
of the right, this is, basically taking into account what a tribunal
would annul of Justice if the case come in front of him; The
negotiators, mediators or referees use to be people with juridical
formation than, therefore, apply forms to proceed typically
juridical, etc. Otherwise, normally we regarded that as more
developed societies music also the ones that do a bigger use of the
juridical instruments.
The Law and progress
The ubiquity of the right is, would be pertinent to tell to, a
crushing fact of the than, however, not always we are aware .
As a consequence of it, neither we use to present issues as you
give her why the right exists or if you are all right that I exist, this
is, if our societies are or not improve for the fact to be organized
juridically.
This last issue is, in reality, extremely complex or, if you want,
dark. Stops answered we would need to know with certain
precision what you must get along well for ( ( Right and for fair
society ", what the right fulfills social shows, or alternatives are
which ones than exist front to the same. For the moment, it will
not be superfluous to show that the question is relevant and that
you can not do away in no time with with an appeal progress
having nothing else to say - until we not have any answer to all
those issues -. Today ( but not sien1pre has been that way ) we
tend to think that the evolution of our societies is progressive, that
our life is better than give it our forefathers and than, therefore, if they characterize our societies for the increasing importance of the
right most of all, then these last they are also progressive facts,
plus signs, the most developed - ( or of the market ).
However, things are not so simple. From the start, it is not so easy
to know in what the progress consists exactly and how measured,
in relation with what factors: Progress does not seem to have
imitated inintenumpida a linear trajectory, you do not affect all of
societies equally, neither to all of the individuals that live in a
11. same society - that want me to be -. Besides, the idea of progress
seems to have multiple facets: Civilizatorio is spoken to of costreducing progress, technical, scientific, moral, cultural, ... would It
Not Happen for societies to be progressive when you consider
them from a perspective, but no from another one - our societies -?
For example, we can give for undisputed the existence of
scientific and technological progress ( the fact that they be
common knowledge - in impersonal - more things on the natural
and social world and be more than enough how using that
knowledge stops modified ), but that is not unequivocal sign of a
positive evolution in individual or social térn1inos; It is not sign
that we live in a superior civilization: Our life like individuals is
not necessarily better simplernente because we have an
automobile, of central heating or of a connection to Internet - more
rich, more complete or more happy -; And, most of all, our
societies necessarily are not better off organized after the
Industrial Revolution and in complete era of the information and
of globalization - they are not more just -. The technological
progress and scientist it means an enormous potential of human
liberation, but you are not at all obvious that we had been able to
take advantage of it. Not only that, it would be necessary to
acknowledge to than, in no few aspects, societies with a grade of
technological development very precarious primitive societies " solved lnejor than we basic problems like the one belonging to the
social integration: His Criminal Law was much less developed
than ours, but also crueler and more efficient.
For example, indiums cheyennes - the savages of the films of the
Oestecastigaban the death of a member of the tribe to not our own
hands simply with grief of exile of one to five years. The
judgment for part of the piece of advice of the tribe went
accompanied from a ceremony of purification ( the act of murder
was considered one sinned q and affected all of the tribe ) that
they were cutting in all of the members on, with the exception of
the murderer and of its family; It turned out well not only to avoid
the revenge, new bloodsheds or a cruel punishment with it ( as
without a doubt the grief comes from prison - not say the
capitalusual in our Rights ), but also reinforcing the social links in
critical moments Hoebel 1979, p . 158 .
Naturally, this and another referent data to the equilibrium
between the individual's elbowroom and the need to safeguard the
well-being of the tribe ( ( comunitarismo than, apparently,
12. cheyenne characterized the society, you do not have reason to take
to her life of thoses indium about them grasslands to North
American be superior ) toing her give them to that es called
develop advances by her policy actu to the enter ( ( liberalism and
- preferable. In reality, a similar judgment ( the comparison
between two or more ways of life ) can not be done from the
vacuum, but relating to certain system of moral values ( the very
of who emits the judgment ) and taking into account the
conditions of development out of every culture. That explains that
few of us would be willing to change our life for give it a
cheyenne ( enclosure if not they inhabited in a reserve ), the same
way that you are not of supposing neither that they feel
themselves very at ease taking the typical stock - of middle class's
individual of an one belonging to our cities let's put -. However,
that definitely makes sense to affirm he is than, according to the
notion of ( an association that procures the well-being, the
freedom and the equality of the individuals that integrate her ), the
cheyennes's social organization - once the cir were given unst
ra.n's ncias adversity you developed in - - has been but rational but
that the mavar inform her about the contemporary societies ( ( the
society jousts " that many members of the occidental culture share
Justa -.
. It is certainly difficult to think that ours is a world well-ordered
lníniIna, a just world. Even laying aside the fact of than the
century xx has been the most violent one of history, how no
considering radically unjust a situation you get ready in of
resources enough to fulfill the basic needs, and less than basic, of
all those that we inhabited it, but the greater part of humanity
lacks the most essential - to planetary level -: One out of every
five inhabitants of the planet suffers from hunger and:Are glás of
one half poor? Besides, even in the capitalist societies more
opulent, people's proportion that his basic needs do not manage to
fulfill is very loud and, apparently, it tends to increase, while they
increase also the differences between haves and have nots. The
prison population's numbers are also a character's eloquent index
less than showing a deficit of our social order: There are today
two million recluses at United States ( and six million others
people that have gone by the jail ); And the situation is less
outrageous in occidental Europe but neither it is enough to throw
the bells to the pilot - without a doubt, something has to do with
the social State's existence with it -: In Spain, the prison
population promotes some 45,000 people ( a percentage
something like 10 inferior times to the one belonging to the United
13. States ), that means approximately that he has bent down in the
course of the last ones 20 years.
In a word, societies puederi becoming, in various senses, more
complex unless it mean that they are more just; The principal
witnesses of the right, of juridical instruments, to govern the
conduct of the men in the society do not carry a social order of
superior type necessarily matched up.
The hypothesis of the Right-Hand no
Certainly, a reflection once the previous was seemed ( you
raise her consciousness to live in a deeply unjust society ) is what
the existence of a primitive Saturnian Age men were living in in a
status of freedom and natural harmony that institutions'
establishment was not doing necessary should have carried to
authors of varied epoches to hipotizar than, like the right, they
bring with themselves the exercise of power, the use of the
coercion of some men on other ones. Examples thereby were
found by Ovidio, Virgilio in the Bible ( the story of the Garden of
Eden ), in many classical authors like HesÍodo,, or Séneca, and
also at The Quixote's passage in the than, after pondering the
walking cavalry that you equal everything, the Mr. Quijote
addresses himself to some goatherds that had been accepted,
along these lines: " happy age and centuries those whom the
ancient put name of golds ... because then them than they lived in
her they were ignorant of these two words of yours and my.
Everything were in that holy age common ... ] Todo era paz
entonces, todo amistad, todo concordia [ ... not even malice Did
Not Have the fraud, the deceit mezcládose with the truth and
plainness. The justice was itself in his of one's own terms, unless
they dare to disturb her neither being offensive give them the
favor and give them interest, that so much now they undermine it,
they disturb and they chase ; Not yet the law of the lace had been
established in the judge's understanding, because then there was
not what passing judgement, neither who stand for trial ... "
The ideal of society that the anarchists and the Marxists in the
century nominated XIX as a candidate and it serves to be, in a
way, a version of that myth of the Saturnian Age, past for the
ideology of the progress in the xx: The existence of that fortunate
age is not thing of the past that way, but of the future and if the
future we placed it not in the over this way more, at the land, but
in the beyond, in the skies, the myth, acquire religious dyes: The
original sin, in the Christian religion, supposes the loss of the
14. Garden of Eden, the appearing of evil in the world and, with it, the
surging of the Right and of the State; Many Christian authors
deduced of there the need of the use of the coercion in this world,
while the true justice got flunked to the other world, to the
kingdom of heaven.
In the event of Marxism, the central idea is existing a logic of
the social development and than the key to understand each kind
of society finds itself in the
Mode of production, this is, in the way that men make a
living, and in the kind of the ciones s ciales that they establish
among themselves in this respect; They distinguish aSl, like
moments of a succession no right now only of chronological type,
but logician: The primitive communities' mode of production, the
mode of Asiatic production, the mode of ancient production or
enslaver, the mode of feudal production and the mode of capitalist
production. The right and the State would not have existed
always. They happen historically when the social classes appear,
what happens with the mode of Asiatic production or of hydraulic
despotism, this is, forms it of social organization of the Ancient
Egypt or of Mesopotamia and, until recently, of China or of the
India, and they will stop existing when you exceed the capitalist
society to the communist society that again a classless society ( as
it happened in the primitive communities ) is social and without
conflicts. " once in the course of development the high-class
differences had disappeared and all production had focused on the
associated individuals' hands, the public power his political
character will lose - it can be read in Marx's and Engels's
communist Manifesto, article in 1847 -. For Marx and Engels, the
political power is the violence organized of a classroom for the
oppression of another one and it will stop existing ( like the right )
when in substitution of ancient bourgeois society, with his
classrooms and his high-class antagonisms, happen an association
that the free development out of every one will be the condition of
the free development of all in. In an one belonging to his last
works, Crítica of Gotha's Program ( of 1875 ), Marx wrote than in
the superior phase of the communist society, when with the
development of the individuals in all his aspects, grow also you
force them productive and run to full jet the collective riches's
springs it will can at last " passing over the narrow horizon of the
bourgeois right totally, and the society will be able to write on her
flag: Of each one, according to his capability, to each one,
according to his needs!.
15. Now then, is the Marxist hypothesis plausible or give it
anarchists or give it certain type of Christianity like the one
belonging to Tolstoi that the turn was upholding to the first
Christian communities? The anarchism like political conception
does not seem to enjoy today good health, had it not been in the
way degenerated of certain extreme neoliberalism that is
characterized to detest of all what's state-owned; But, obviously,
the ideal of human liberation that traditionally has held the
anarchism and that was based on the belief in that the voluntary
cooperation and education would allow abolishing all type of
laws, little it has to do with the one belonging to the neoliberal
ideologists of extreme right that the State for the market is to the
one thing they extract to to substitute - like in the event of Godwin
1945 -. Christianity continues to be without a doubt a rising
ideology, but what is in rise is not a project like the one belonging
to Tolstoi precisely. And Marxism seems to have come
completely swept from the scene, after the fall of the wall of
Berlin and of the ending of the USSR. Today tends to consider
himself like a conception been in danger of the world, that does
not stop being a little bit surprising if one thinks than during a
good part of the century XX it worked like one of the two or three
big ideologies that were moving the world. Certainly, there are not
not enough reasons to call into question many aspects of the
Marxist philosophy; For example, his conception of the history
according to which, the arrival of Communism has an inevitable
character, which, among other things, took fatally to
underestimate the issue of the means to come to that ultimate goal
- than, in reality, it is a religious conception -. But there are many
other theses that it would be perhaps precipitated to hit for refuted
simply to the sight of the failure of the communist systems - or
something worse -; After all, also the Christianity ( to put an
example of related ideology in many aspects to Marxism ) has
produced the history throughout history one or another disaster
( the inquiry, crusades or the wars of religion are only some
examples ) than, however, it has not destroyed him. It would look
like, for example, there is no reason to abandon the Marxist theses
that do not have scatological character having nothing else to say,
so what not even they intend to transform the world but to explain
it. Join theirs you are the idea that the right happens of the conflict
between social ranks and that, in consequence, is a historic
phenomenon that you accompany only the development of certain
type of societies. Is that true? Societies without Derecho have
existed really - or do exist -?
16. Societies without Law?
Let's revert to the cheyennes's case, that they were hunters' town
and collectors it would be very unlikely in properly of social ranks
and where there was a system of private property, but very limited:
In principle, with the exception of the land and of the fetishes of
the tribe, assets could be object of private appropriation, but the
obligation existed of shared with the other ones. Did a cheyennes's
Right exist really? As we have seen, in that society standards that
were forbidding and were sanctioning the act of murder, as well as
another types of violent conducts or, in general, you antagonize to
the community's interests were in force . Now then, the base of all
those prescriptions had a religious character, that does not happen
with our juridical systems, that they are based on the separation
between the right and the religion - give them the occidental
societies -: The cheyennes believed than the man estásubordinado
to supernatural forces and to spirits of benevolent nature; The
death of a cheyenne for another one contaminated the murderer,
but also to the tribe's fetishes: Until these fail to match, you would
pursue the bad luck to the tribe. In addition, authorities elected
regularly ( the piece of advice of the tribe and the bosses of the
military societies all warriors were integrating in ) with power to
change or adapting the standards to the new circumstances existed
also and stops applied in same cases of conflict or of unfulfillment
of them, but naturally those authorities differed from in various
aspects the legislatures, executives and judicial of our systems: For
example, between the cheyennes there was not a legislative organ
properly, neither division of powers ( between the executive and
the judicial ), neither codes or professional jurists. Does it make
sense to talk of Derecho in those circumstances?
The jurists use to repeat an adage according to law Roman,
according to which, where there is a society there is also a Right
( ubi societas ibi ius ). But it does not look like for me to have no
convincing reason stops accepted having nothing else to say. A
thing is that it may be told than where there is a society - for little
of Sarrollada that be standards and sanctions exist also; For ejen1plo,
in1aginable is not a society that not establish any prohibition in
front of the job of violence ( although prohibition not be enough to
all of the members neither to any type of violent act ) and
sanctions in front of the infringers ( although it not have to do with
more than a social diffuse reproach ); If it were not that way ( and
granted that we can not think up circumstances that root out the
possibility to act violently ), a human group would be able to not
17. simply last. But something else is that to those standards and to
those sanctions we call them juridical; As did we see at the
beginning, the right is a so'dedad's aspect, not the society having
nothing else to say, and so that we use to tell apart between
juridical standards, nuns, moralses, of the social deal, habits ...
Why to consider that the standards that they put to some limit
violence ( or that do they forbid the incest or adultery ) are
juridical and no very habits, moral standards or nuns?
There is not an expeditious way to reply to this question, because
for it we would need to depart from an unequivocal item of what it
is Straight ( and what you do not come from ), in reality and a
consent is far from existing with regard to this matter. For
example, the Marxist authors and many jurists would lay eggs like
necessary condition to speak of Derecho the existence of
centralized authorities's State and, this is, of an appliance that the
use of the physical force monopolizes . But this would not be
acceptable for many anthropologists. Bronislaw Malinowski, in a
famous work you supported 20 ( Crime and habit in the savage
society ) that some regard as the birth of the juridical
anthropology, of the years that all those standards that are
conceived and that are applicable like binding obligations were
juridical; But stops than exist those binding obligations, tacking
with that a relation of reciprocity be given, this is, with that any
pressure for part of the group exist, which can take place without
authorities's need. Otherwise, all anthropologists do not agree with
this last thesis, but among themselves queen a situation of true
dispute with regard to this matter: The issue of when begin to there
be Straight she is not by no means pacific, although, in general, it
can be said that anthropologists tend to hold Derecho's more ample
concepts of what he is usual to find between the jurists.
To the chance of this difficulty, a procedure that it enables arriving
to a reasonable answer to the presented issue exists perhaps. It
would involve finding out which ones the striking features that
characterize what normally we use to call Derechu to are, and
checking next even what point those elements are or not present in
all the other types of society. Well then, if we departed of what
usually we considered that a juridical system is ( for example the
Spanish present-day right ), we can come to an agreement in than
the same it is formed not only for nonnas of conduct that they
establish prohibitions, obligations or permissions; After all, also
religion, morals or the cost umbre they produce a regulation of the
human conduct in those terms. What's privative one belonging to
the right seems to be in the existence of public, authorities organs,
of several types. For example: Authorities ( members of the
18. parliament or white-collar workers ) that have to can to establish
or to modify rules of conduct that link music to you s for the other
members of the group; Authorities Uudiciales ) that they have
somebody can to apply those standards to the cases in dispute and
to resolve the conflicts into binding form for the parts; Authorities
( policeman broadly ) with caning to enforce the previous
decisions turning as a last resort to the exercise of the physical
force.
In the event of the cheyennes's society, granted that in the same the
organs seem to exist to the less than the last few types, sentldo
would have somebody talk of Derecho; If you want, in order to
mark the difference with our juridical systems, we would be able
to use expressions like Rudimentary right, Primitive right or some
1 similar other. But can you say to oneself the same thing of all
the socjeoades? What would happen if we find out that societies
that it is not neither legislator in exist he is, neither judges, neither
policeman, neither no type of permanent authority - or have they
existed -? Would it make sense in such a case to keep talking
about a juridical ordf"n?
19. Let's take the case of the Eskimo that are considerate by the
anthropologists like one of the most primitive towns.
They live ( some 10,000 km ) fundamentally on hunting and of
fishing, to long of an extensísima stripe in the arctic - or they lived
-. They are organized in local groups very pequeI10s that use to
integrate a dozen of families than, in total, rarely the 100
individuals surpass . No type of authority constituted of permanent
way does not exist among themselves. A boss is in each group, but
a primus is not more than this you stop inter; No procedure
regulated of election does not have chief l he is almost always the
defttest hunter and that position occupies only in the meantime the
other ones itself accept your judgments and opinions.
Now then, authorities's lack does not mean for quarrels between
the members of the group between members or not to exist of
several groups - of a personal power of a man on another one -.
Apparently, they happen with certain frequency and they use to
have a sexual motivation. The males' ideal of realization ( women as it happens in many primitive societies - they have a place
socially subordinated ) is to succeed in to obtain food and women.
The first thing does not seem provócar too many conflicts; The
Eskimo consider that nobody must have more than what you can
use, so that prestige is obtained not simply to possess goods ( food
) but for being a public benefactor. But relating to the women's
possession, quarrels are frequent for adultery ( that for the Eskimo
you signify : Having sexual intercourses with a married woman
against the will express or tacit of the husband ) or for the
appropriation for the force of the woman of another man. In some
cases, the victim of an offense can be content with defying the
offender to a tournament of songs, what certainly a curious
mechanism of resolution of conflicts constitutes ; The
reconciliation between conqueror and beaten it is not produced
20. properly establishing rights and obligations ( so that it be difficult
considered like a procedure of juridical type ), rather what is
chased is that parties to the suit feel satisfied psychologically; And,
apparently, that spectacle produces such fascination they
participate between in the same like contenders or like spectators,
that you are usual than in the passing of the same forget him the
origin of the dispute, what a obvious lead that the conflict has been
surpassed constitutes . Other times, the conflicts resolve by means
of combats reglan1entados contenders fight in hitting oneself with
the fists themselves or with the head. But in many instances, the
conflict provokes the offender's death. The rate of acts of murder
between the Eskimo is, apparently, very tall: In part because - as a
consequence of the hardness of vidase's conditions you depart from
that the society can not tolerate unproductive members' existence,
that results in that they consider justified forms of act of murder
( like infanticide, the invalicidio, the senilicidio ) and of suicide
( the assistance can constitute even an obligation to the suicide ) giving death to another one is a form to solve conflicts, and in part
because I eat he has just seen oneself -.
Certainly, all the above does not signify than in the Eskimo society
not exist limits in front of the exercise of violence. Somebody that
you give to death in an occasion one or cans to several people not
only not to suffer a disapproval for part'e of the group, but even
seeing how increase your prestige. But this does not happen with
the recidivistic murderer, which is considered like a social threat;
The murderer becomes a public enemy and he is punished with the
death to hands of an agent of the community; However, the
executer is not a community's stable organ, but somebody that has
gotten the approval from the group to act in that case, approval that
it is necessary for which his act not be considered like a new act of
murder that cause future revenges.
In short, the anarchist, without permanent authorities, tribunals,
can say that the Eskimo society is a society policeman or written
standards. Does it not seem then reasonable to say that a
jurisprudence does not exist here, but a social order obte
intervening nest standards ( if you want, habits ) of moral character
or priest?
