Legal positivism" "meaning and scope of legal rules

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c) Social State based on the rule of law This type of State is based on the conviction that the legal recognition of individual freedoms is indispensable, but insufficient. In order for the State to be fair to the citizens, it must not only adjust to law, but the State must also correct the deficiencies and inequalities generated by the system itself. In order to make many of the individual freedoms effective, it is also necessary to ensure a minimum social equality among citizens. State must intervene directly in the realization of rights,  the State also has to carry out a fundamental task in the social sphere. Thus, it is understood that among its functions the State also has to promote the material well-being and economic security for its citizens. In particular, the State is responsible for the organization of free health and education system.

Types of legitimate domination (Max weber)

  • Traditional: power is legitimized by resorting to tradition (families, dynasties), it seems naural that they should continue to do so. Is based on the belief in its hereditary or divine character. It's difficul to argue rationally in favour or against this kind of authority. Tribal leaders, monarchies..
  • Charismatic: power is legitimised by means of charisma of the ruler, depending of the kind of quality that peolpe have to mobilize other people. Its silimilar to the traditional based of the quality of the leader but it's consider personal and not hereditary. Prestige of the leader base on the emotions that they provoke. Leader such us Hitler.
  • Rational-Legal: power legitimized by resorting of law. Law is what confers authority beacause it amanates from the popular will (Democratically established). It's the result of an agreement amog citizens and it's the only type of fully rational authory that allow arguments for ans against. Current democracies.

Derecho objetivo (law): set of priciples and norms human relations in society are subject to. Its a code broad enough to address all aspect that can arise in every personal or social interaction.

  • Positive law: system of rules established by a particular state that is applicable at a particular time and place. Known as legislationof a country.
  • natural law:set of principles and rules that are universal and immutable. It established what is fair.

Derecho subjetivo (right): faculty or ability of every human being to do what is allowed according to their dignity. (Human rights)

Principle of legality: This principle consists in being in conformity with the law both in the relations between the State and citizens. This principle belongs to the field of positive law. Something is legal, simply, if it matches the current laws, although these laws may seem unfair to us.

principle of legitimacy is often contrasted with the principle of legality. What is legal may not be legitimate, since what is legitimate is what coincides with justice and morality. Legitimate State will try to ensure that what is legal is also fair.

a) Legal iusnaturalism defends the existence of natural rights of the individual that are universal. Main function of the State is to protect and ensure that individuals can enjoy these natural rights. From that perspective, the positive recognition of these fundamental natural rights in the laws is interpreted as a formal recognition by the State of a series of previous ethical principles,(Uivelsal decleration of human rights)

b) Legal positivism  position radically opposed to iusnaturalism. There is only a legal norm, a law.  any belief in the existence of some valid law prior to positive law is interpreted by legal positivists as the result of an unacceptable metaphysical position

c) Legal realism From this perspective, the positivization process does not mean the declaration of preexisting rights (iusnaturalism), nor the constitutions of new rights (positivism), but is a further requirement to take into account for the effective and real enjoyment of certain moral and political demands of freedom and justice.

Liberal model Adam Smith, during the 18th century, the one who better linked both its political and economic dimension. Defends that the State's main purpose is to ensure the economic growth that will lead to the prosperity of nations enforcing laws. So, Smith defended the non-intervention of the State in the free market because the welfare and wealth of a society depend on these three factors:

1) The individual egoism or the pursuit of the self-interest. In the commercial exchange, the consumer is willing to pay the minimum and the producer wants to win the maximum,

2) The law of supply and demand as a market regulator. When there is a lot of demand for a product and a low supply, the prices of that product go up, while if the demand falls and the supply increases, prices go down.

3) The division and mechanization of the productive process. With the increase in productivity, as a result of a more efficient division of labour and mechanization, production costs fall. That way, the products can be sold cheaper

the free market regulates itself without the intervention of the State in order to achieve the greatest benefits for the whole society.

Marxist model historical materialism". According to this theory, it is possible to explain the social and political changes from the changes taking place in the material base (economy) of a society, “modes of production”. So, from Marx's point of view, every transformation of the society requires a previous transformation of the economic base.

Marx thought that mode of production can be understood as a structure compose by economic structure refers to the material basis of a society, that is its infrastructure or base; the legal-political structure and the ideological structure correspond to what Marx calls the social superstructure.

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