Legal order is the broader context in which normative production takes place. As such, it is composed of its own principles, techniques and rules of production and integration. Thus, one can speak of several legal systems.
The Law seen beyond the norm and the law
For a long time, the Law was studied from the perspective of the legal norm. However, the analysis of Law as a norm/law implied ignorance of particular problems.
These elements could only be analyzed more deeply from a broader and more systematic perspective. In other words, of Law as a whole and not only as a set of norms that are sufficient in themselves. Of Law, therefore, as a legal system formed by norms, rules and principles.
In this article, an analysis of the concept of legal system is made, as well as essential definitions to it.
What is the legal system?
Although he was not the first to approach law from the broader perspective of the legal system. Law finds its adequate definition when it is located in the legal system. One must then consider the way in which a certain rule becomes effective from a complex organization that determines the nature and entity of sanctions, the people who should exercise them and their enforcement. Thus, to approach what is a legal order would be to analyze that organization.
The concept of a legal system would thus be the context of normative production. It would therefore encompass not only the legal rules themselves, but also the techniques of production and integration of legal norms from different areas of law.
Types of orders
A system is an ordered totality, a set of entities between which there is a certain order. These entities must not only relate to the whole, but also to each other, in a relationship of coherence. Thus, when we ask ourselves if a legal order constitutes a system, we ask ourselves if the norms that compose it are in a relationship of coherence among themselves.
The legal systems are different. This is because they not only have different formal and material norms, but also because they may have different rules of structure. A parliamentary monarchy, for example, will not be structured in the same way as a presidentialist or a presidential democracy.
The legal rules are part of the legal system. Within the set of norms, there is the fundamental norm. As mentioned, it is presupposed because it is the foundation of the legal system. And to avoid discussions about a power prior to the state itself capable of instituting it, it is understood to be presupposed. It is thus the norm that attributes to the constituent power the faculty of producing legal norms. It is the supreme criterion that makes it possible to establish whether a norm belongs to an ordinance. It is also the basis for the validity of all the norms of the system.
A norm belongs to a legal system if it is valid. That is, if it belongs to a legal system and has been put by a competent authority in the right way. Thus, relevance is established from degree to degree, from power to power, to the fundamental norm.
Types of legal norms
The rules of the legal system thus serve the purpose of regulating the conduct of persons. There are, therefore, two main types of norms:
- rules of conduct, which regulate the actions – doing or not doing;
- rules of structure, which govern the way in which rules of valid conduct are issued.
However, they can also be classified as conduct norms:
The thesis of the exclusive general rule holds that a rule of the legal system that regulates a behavior not only limits regulation but, at the same time, excludes from that regulation all other behaviors. Thus, all behaviors not included in the particular rule are regulated by a general exclusive rule. That is, by the rule that excludes all behaviors other than those foreseen by the particular rule, so that all human activity is regulated – by particular and general exclusive rules.
The inclusive general rule shall include the rule of the legal system according to which the judge, in the event of a loophole in the law, must resort to the rules governing similar cases or analogous matters. Its characteristic, therefore, is that it regulates cases not regulated in the particular rule, but similar to it, in an identical manner. Thus, the argumentum a similli is used.
Principles and rules in the legal system
The view on the principles within the legal system varies according to the theoretical perspective. And it is one of the great discussions of juridical hermeneutics, especially between guarantee tendencies and principialist tendencies.
The principles, in general, are glimpsed as guiding instruments. And although they are part of the norms of a legal order, they differ from the rules themselves. While the principles structure the system, the rules define the authorized, forbidden or mandatory conduct positivized within the system. And, consequently, they must be interpreted in accordance with the former.
Definition of principles in the legal system
The principles gained prominence in legal theories especially after the end of World War II, when the will of the majority was put to the test. In the constitutionalist tendency of the 20th century, therefore, the validity of the norms began to incorporate formal and substantial elements. Legislative production is not only subject to formal or structural prerequisites. It is essential, then, that it represents values consistent with the democratic constitutional paradigm.
It is necessary to emphasize, however, that there is no prior definition of the conditions of validity of the norm or of the degree of justice expressed by them according to the theory of law; there is only a definition of what would be valid or invalid. Any and every norm produced in a given order in conformity with and consistent with the formal and substantial norms, whatever they may be, about its normative production is valid.
Legal practice is a typically interpretative activity, and it is up to the interpreter – the judge – to find the only correct decision. This will be the one that best fits the facts, the context, the tradition and the morality – a historical decision of the one who pronounces the sentence, based on precedents and the function of the Law.
The law consists of both evaluative and descriptive (positive) propositions, among which are found:
- abstract propositions;
- relatively concrete;
- very concrete.
The mere existence of guiding principles for decisions does not imply, however, the non-existence of conflicts. On the contrary, there will commonly be controversial propositions of law. New problems in the field of decisions arise from the collision of principles, especially due to vague conceptualization. In this way, disagreement will be established as to the form of procedure and conflict between the criteria of justice and validity.
Although considered to be an aspect of the postwar constitutionalist current, is based less on the valuation of principles, a thesis defended by neoconstitutionalists, than on legality and conflict resolution within the provisions of the legal system itself. The attention to the previsions of law, however, does not imply that it is synonymous with positivism, at least the conception of a paleo-positivism, centered on the literality of the law.
Finally, it is perceived that the concept of planning goes beyond the sense of a mere set of rules. In fact, it encompasses a series of theories, norms, rules and principles that regulate the different and complex contemporary societies.