SUMMARY OF INTRODUCTION TO LAW

DIFFICULTIES IN DEFINING THE TERM LAW.

VARIOUS MEANINGS OF THE SAME.

When we try to define Law, we encounter various difficulties, which

they are found in issues of ambiguity and vagueness or imprecision.

The word Law is an ambiguous term, meaning it does not have a single meaning but
Various. Ambiguous terms, also called equivocal or multivocal, are distinguished and are
they oppose the univocal. Ambiguous terms have several fields of reference, the
univocal just one. An example of ambiguous words is the word 'cabo'.

More serious than the problems of ambiguity of the terms are those of vagueness or
imprecision, as they stem from many more causes and end up being clarified only when they
has a very high mastery of Law. A term is vague when it is known what its field is
reference, that is to say, it is known what its meaning is but it is not precisely defined.
For example, the word old. It refers to 'many years' but does not specify how many.
Years are many. The word Law is also a vague word. The problems and vagueness.
the imprecision of this arises from the different conceptions held about Law,
those that are grouped into different schools or doctrines.

Some meanings of the term Law.

1- Law as Objective Law. Law understood as Objective Law can be

to conceptualize as the set of legal norms that regulate the coexistence of men
in society. The notion of legal norm in this concept is key. Legal norms
form a hierarchical and systematized set, which constitutes the Legal System, that
is composed of numerous legal norms whose knowledge is difficult. The Legal Orders
legal matters are also extremely complex. However, since ancient times there has been what is called
Presumption of knowledge of the law
Let's remember Article 8 of our Civil Code.

Article 8. No one may plead ignorance of the law after it

has come into effect.

2- Law as Subjective Right. It refers to the power that a person has to

to demand from another the fulfillment of a legal duty or obligation. Subjective Right is understood as
faculty. For example, the faculty or right that a person has to move freely through
the streets.

3- Law as a synonym for justice and other legal values.

 The relationship between law and values has aroused throughout the history of
philosophical and legal thinking many discussions, various theses being formulated in this regard
doctrinal positions, as there are those who believe that ethical values or goods exist
they are really and are susceptible to being known rationally, or others who assume a criterion
skeptical about them, especially regarding knowing them in a rational way, they maintain
that cannot be addressed scientifically. For example, they say, The value of justice, which for
essence must carry out the Law, we immediately encounter problems, remembering the
traditional definition of justice by Ulpian, 'the firm and continuous will to give everyone their due'
yours”, they do not say that it is not pointed out what belongs to each one. Next, we will explain some
of the doctrines that have been formulated regarding the relationship between values and Law:

a) Natural Law Doctrines.

Natural law positions agree that law is not exhausted by

not only Positive Law created and imposed by men, but above this exists a
set of principles and norms that are prior and superior to it. These principles must be adhered to by the
Positive Law to be considered an authentic Law.

The doctrines that adhere to the thesis of Natural Law are many. For example,
There are natural law doctrines from the time of Greek philosophy, others specific to Roman law,
of medieval Christianity as proposed by St. Thomas Aquinas, also in the
Modern Age, mainly in the 17th and 18th centuries, we will mention Hobbes, Locke,
Rousseau, etc. And also in the twentieth century there are many authors and trends that adhere to the
doctrine of natural law.

An undeniable advantage of the positions of natural law is found

in which they recognize and protect a series of values inherent to the human person, such as
like justice, freedom, human dignity, etc. One drawback is that the
The natural law approach in extreme cases could threaten legal certainty, as
in many cases it would leave to the person's discretion the obedience to the laws, endangering the
order and social stability.

b) Positivist doctrines.

Positive legal doctrines affirm that there is no law other than Positive law.
Law is exhausted in positive law, in the norms created and imposed by men,
fundamentally after the power of the State, thus Positive Law does not depend at all on the
D° Natural.

Among the doctrines adhering to legal positivism, we highlight the A School of the
Exegesis born in France after the enactment of the French Civil Code of 1804, which has
has had a huge influence in Chile. The Chilean Civil Code, drafted by Don Andrés Bello,
that came into force in 1857 is inspired by and is basically founded on it. Most of
our great jurists adhered to this school, closely following the great
French legal theorists. Within the positivist trend, we also highlight Kelsen with his
Pure Theory of Law.

The great advantage of positivist doctrines would be to constitute a

safeguard, a guarantee for Legal Security, order, and social stability. Its very serious
The inconvenience is that it would force obedience to unjust laws and often, also inhumane ones.
as has happened on several occasions.
Legal Realism.

For legal realism, the key element to define law is the acts or
acts carried out by certain people, specifically by those who operate under the norms
legal professionals such as judges, lawyers, or certain officials. The aim is to formulate a
theory of law that is rigorously scientific, and they tell us that a science can only
to be elaborated based on empirically verifiable facts or data.

Natural law positions are criticized because they are based on the
values, which are not empirically verifiable, cannot be proven. It is not
scientific. Likewise, the iuspositivist doctrine is criticized for constructing its notion of Law to
starting from the norm, since the norms are not empirically verifiable, so
it is not scientific either.

The American jurist Oliver Wendell Holmes tells us that 'Law is

that which judges do" Legal realism has been particularly accepted in the U.S. and the
Scandinavian countries. However, currently this conception of Law, especially the
The principle of empirical verification has been surpassed.

From each of the outlined trends, multiple variants have emerged.

they have given rise to many schools or doctrines. There have also been efforts to reconcile
these positions. We will highlight the proposal of the Brazilian philosopher of Law Miguel Reale,
formulator of a doctrine called the Tridimensionality of Law, which attempts
to reconcile natural law, positivism, and legal realism. This author states that the
value elements (natural law), norm (positivism), and fact (legal realism) at the same time
they constitute the Law.

4- The law in relation to Juridical Science and in general to the

various disciplines that study the legal phenomenon.

Law can be studied from various perspectives, giving rise to various

disciplines. Thus, when studied from a historical perspective, we find ourselves facing the History of
Law. Considered from a sociological angle, we have the Sociology of Law, making
a philosophical reflection we will be before the Philosophy of Law and so. As lawyers, we
we are interested in the study of Law from an exclusively legal point of view and
normative, we are faced with the Science of Law in the Strict Sense or Dogmatics
Legal, which studies the norms in force in a specific country and time, the norms
in force of a specific Legal Framework.

Aberlardo Torré defines Legal Dogmatics saying that 'it is the science that studies
the Law, or better yet, the interpretation, integration, and systematization of an Order
Legal determined for its fair application.

Comment on the definition.

The first function attributed to it is to interpret the rules of a Legal Order,

that is, to determine the true meaning and scope of the norm. They can interpret the law
the legislator, the judge, the administrative authority, and individuals. The binding force of the
interpretation is different depending on who it comes from. The interpretation of the legislator is general, the
The judge's decision is only mandatory for the parties involved in the case, not for individuals.
it has formal binding force, but it has influence depending on the prestige of the
authors who formulate it, administrative interpretation generally has authority
mandatory but subordinate to legal interpretation and what the courts of justice decide.
Let us remember Article 3 of our Civil Code.

Article 3. It is only the legislator's responsibility to explain or interpret the law in a way
generally mandatory.
Judicial rulings do not have binding force except regarding the
causes in which they are currently being pronounced.

A second function is to integrate into the Legal Order. This means filling in the gaps.
or gaps that the Law may present. There is a whole discussion about the existence of
the mentioned lagoons but most lean towards recognizing their existence, this because the
legislator and in general the bodies that issue legal norms cannot foresee all the
situations that will arise in real life, as someone said, 'life is more ingenious'
that the best of jurists.” For example, aviation emerged very quickly, and there were no regulations.
that regulate the activity. The law was faced with a void. In any case, the regulation
The legal framework assumes that there may be gaps or omissions. The Civil Code states:

Article 5°. The Supreme Court of Justice and the Courts of Appeal, in the month of
In March of each year, they will report to the President of the Republic any doubts and
difficulties they have encountered in the intelligence and application of the laws,
and of the gaps they notice in them.

3- The systematization of Law is another function assigned to Legal Science. This is because
that the law, to be applied, requires an arrangement, a systematization that starts
with the interpretation of the rules. In this regard, different criteria can be applied.

a) Hierarchy criterion. This means that there are higher-ranking and lower-ranking norms.
inferior, where the inferiors must adhere to the superiors and never infringe upon them. The rules of
the highest rank in all Legal Order is the Political Constitution of the State, to it
They are subject to and find their basis of validity in all the other norms.
Every legal system includes mechanisms to enforce the principle of
hierarchy. In the Chilean case, we have the Political Constitution as the higher norm, under it
descending in hierarchy, to laws, judicial rulings, decrees, regulations
of the President, etc. The law cannot be contrary to the Constitution, which is why there exists an organ
the Constitutional Court carries out a priori control. Once the law comes into force
the body that controls constitutionality is the Supreme Court through the resource of
"Non-application due to unconstitutionality of the law." The difference between the appeal to the
The Constitutional Court and the appeal to the Supreme Court is that the former is a priori and
it is applied generally, and the second is a posteriori and is only applied to the specific case.
let us remember paragraph 2 of article 3 of the Civil Code 'Judicial sentences have no force'
mandatory unless regarding the cases in which they are currently pronounced.

b) Criterion of specialty. The principle of specialty consists of the rule of a character

special rule or prevails over the general rule. Referenced in articles 4 and 13 of the
Civil Code.

Article 4. The provisions contained in the Codes of Commerce and Mining,

of the Army and Navy and other special ones, will be applied preferentially to those of
 this Code.

Article 13. The provisions of a law, relating to things or specific businesses,

will prevail over the general provisions of the same law, when among
the ones and the others will have opposition.

c) Criterion of Temporality. In case of contradiction, the later norm prevails.

about the previous one. Let's remember article 52 of the Civil Code

4- The integration, interpretation, and systematization of the norms of a legal order is

are made with the purpose of applying these standards.

5- The application of legal norms must be fair, that is to say, every time the law is applied...
it applies to comply with the value of justice.

Some definitions of Law.

Defining this term involves difficulties, which is evidenced by the numerous

definitions that exist. A first difficulty will be found in the ambiguity of
term, another would be in that there is no agreement among the authors regarding the exact nature
of law, as we have seen previously. Finally, another difficulty would be in the
mutability or constant change that the law presents. What prevailed as Law in the
the past has no validity today, the legal norms that prevail in a country are not valid in
another.

Definition of Law according to Abelardo Torré.

Law is a system of enforceable norms that govern social coexistence.

This definition refers to Objective Law, to Law in an objective sense as

a set of rules. Torré does not simply speak of a set, but of a system which
It implies that we are dealing with an ordered set. Let us remember the hierarchy criteria.
specialty and studied temporality.

Torré also tells us that the norms that shape the law are coercible.
This indicates that it has legal character and does not correspond to other types of norms that
they also, in some way, regulate human behavior. That legal norms are
Coercibles means that if infringed, they lead to the consequence of a sanction.
susceptible of being applied by force, backed by the power of the State.

Finally, Torré points out that the purpose of law is to regulate or govern the
social coexistence.

Definition of Law according to Francisco Carnelutti.

Law is a system of mandates intended to harmonize and resolve conflicts.
interest among the members of a social group

The definitions proposed by Torré and Carnelutti are not substantially

different, both define Objective Law. Although there is a terminological difference, norm
and mandate, they apparently attribute the same meaning to these two terms: that of legal norm.
For both, moreover, Law is a system, that is, an ordered set of norms.
Furthermore, both agree on the purpose of law; to regulate or govern social life.

The difference lies in that Francisco Carnelutti is more specific. He points out that
Within social life, the Law serves to "harmonize and resolve conflicts of interest."
Let’s think about any judicial litigation, its purpose is precisely to resolve the conflict of interest.
what is involved in each case. These interests can be of different nature, thus for
for example, we have controversies involving economic interests, when they
discusses for example the breach of a sales contract, or conflict resolution
not directly economic like cases of defamation, arbitrary detention and others that
they affect the honor and freedom of individuals.

Definition of Law according to Oliver Wendell Holmes.

The predictions of what the courts will do in each case and nothing more ambitious is what
what I understand by Law

The doctrinal position of this author is legal realism. In accordance with this, the
law is basically constituted by facts, or if you prefer, by practices or
actions of those who operate with him. It is of essential importance to Wendell Holmes
judges, as they operate with the Law. This is mainly due to the type of regulation
what exists in Anglo-Saxon countries where precedent has enormous legal value.
We know that in Chile precedent is not accepted as a formal source, that is, it has no power.
mandatory as a legal norm, according to what is stated in paragraph 2 of article 3 of
Civil Code.

Definition of Law according to Rodolfo Stammler

The Law is an intertwining, self-sufficient, and inviolable will.

a) Law is a desire: It indicates to us that law belongs to the field of the social and the
human, where the will of man is free. This is the area where the Law operates
to try to regulate the behaviors or actions of men, this regulation is carried out through
of various kinds of norms, which would be meaningless if the will of man were not
free.

b) The Law is interlinking: Here the idea is reaffirmed that Law belongs to the realm
regulatory, within the social and human sphere, is located in the sector of the norms that aim to
regulate human behavior, insisting that this is necessary since man, in his
freedom does not always act properly and can deviate from the values it ideally should
pursue actions. This is where regulations must intervene to guide such
behaviors.

c) The Law is autarkic: With this word, Stammler distinguishes Law from another class of
standards holding that legal norms can, when the case arises, be imposed since they
are backed by the coercive power of the State.

d) The law is inviolable: The author does not refer to the fact that the norms cannot be infringed.
but it tells us that the Law seeks to prevent arbitrary behavior, as it aspires
always to carry out a value: justice. In fact, the Law only partially realizes this idea or
ideal of justice. It compares justice to the North Star that guides the navigator on his course,
but it never reaches.

THE REGULATION OF HUMAN BEHAVIOR. THE NORMS

The behavior of men in society must necessarily be regulated since

that men, for various reasons, do not always act correctly from a moral standpoint
ethical. Human beings exhibit harmful behaviors towards others, whether considered
as individuals or as a social group. This and other arguments demonstrate the need for
existence of standards.

Approach to the concept of norm from the categories of what ought to be and of the
human freedom.

Man freely determines his behavior, unlike what happens with the
"natural laws" that predetermine without leaving an option. Man has the freedom to choose his
conduct, within certain limits, that is, can self-determine. Freely chooses acts
what will be carried out, those that can be ethically correct or incorrect. Living together
social and ethics require avoiding harmful behaviors and promoting behaviors
correct. Men should channel themselves towards what is beneficial and distance themselves from what is harmful,
channeling that only makes sense under the assumption of the freedom of the will of the
men, since if they were not free, it would not make sense to guide their behaviors, nor the
neither reward nor punishment.

Distinction between being and ought to be.

Currently, especially among theoretical jurists, the expressions are used

being (realm of nature, predetermined) and ought to be (field of the human, free will)
of the man

The first to propose this distinction was the empiricist philosopher therefore
Scottish positivist David Hume (1711 - 1772). In his work "A Treatise of Human Nature,"
he insists that these two spheres, of being and obligation, are radically separated and
that one cannot transit from one to the other. This distinction was collected and developed by the
German philosopher, quasi-contemporary of Hume, Immanuel Kant, in his moral theory and work
Critique of Pure Reason

A great neo-Kantian jurist from Austria of our century, Hans Kelsen (1881-1973),
In his work "Pure Theory of Law," he discusses the distinction between being and ought to be. He tells us that the
The realm of being is governed by the principle of causality, which links phenomena.
in such a way that the cause is necessarily followed by the effect. In the realm of duty, it operates
the principle of imputation. According to this principle, two behaviors or facts are linked, but not in
necessary way. The relationship occurs between antecedent and consequent, it is not necessary like the
cause effect, but it "must" exist or "must" be possible. For example, whoever commits a
homicide must be punished, the punishment is the consequence that ideally should follow the act
of homicide, but in reality, such a consequence may not occur.

The distinction between being and ought to be has its origins in the early Greek philosophers.

Approach to the concept of norm from a linguistic perspective. From the

must be to the functions the language.

Norms belong to the realm of what ought to be. They are forms of regulation of the
behavior that arises from the will of man, from a capacity for decision-making that is expressed in
through language. Language is an instrument, a means to achieve communication between
Individuals. This form of expression has various functions regarding these diverse uses.
It has been widely discussed in the doctrine. We will consider what Carlos points out.
Santiago Nino in his book Introduction to the Analysis of Law.

1. Descriptive or informative use. Its purpose is to account for certain states of affairs.
describing facts, objects, situations, realities. It is the only kind of qualifying language.
true or false (truth from a logical or scientific point of view: coincidence or
adequacy between the intellect and reality or thing.

2. Expressive use. Its purpose is to express feelings and emotions, or to evoke them in the
interlocutor.

3. Interrogative use. It consists of questions aimed at obtaining certain information.

of the recipient of them.

4. Operational use. It is characterized by the mere expression of certain words leading to the
implementation of the act referred to.

5. Prescriptive or directive use. Its purpose is to influence the behavior of the other, inducing them to
that adopts a certain behavior. Within this usage, we find pleas,
suggestions or recommendations, requests, complaints, and orders or mandates.

The directive language does not lose its character as such simply because it fails to channel or
to guide the individual's behavior in the desired direction.

Directive sentences cannot be qualified as true or false because their object

it is not about informing or describing the surrounding reality. They can, however, be considered fair.
unjust, rational or arbitrary, or convenient or inconvenient.
 Prescriptions are characterized by the existence of a physical or moral superiority of the emitting subject.
over the recipient.

Orders or mandates are called prescriptions in the proper sense and are
those that have the greatest strength within directive language. The rules belong to
this kind of prescriptive language. As a characteristic of prescriptions
It can be pointed out that in them the sender does not subordinate the
compliance with the will of the recipient, as occurs in advice
or request.

The concept of standard, according to linguistic consideration, would be: 'standards are a
a class of prescriptive language consisting of orders or commands, which aim to
channel human behavior in a certain direction.

Various types of standards. Technical rules and ethical standards.

To approach our object of study, the norms, we must make a

great distinction, initially posed by Kant (1724 - 1804) and later reformed by Giorgio
del Vecchio (1878 - 1970), between technical rules or skill imperatives, and ethical norms or
moral imperatives.

Technical rules.
They refer to the means used to achieve a certain end, to the way in which
something must be done to achieve the desired result (such as). They emphasize the means, and
they therefore have a utilitarian end. It is not that they do away with the end, since every means is in relation
In the end, what happens is that the legality or necessity of the end is not what is taken into account.
for the full compliance with a technical standard. They are as diverse as the field of knowledge
human, that is, there are as many as there are sciences. For example, those that refer to the
construction of a house, to a surgical operation, to industrial processes, etc.

Ethical Standards.
They are the rules in themselves. They emphasize the intended purpose.
to achieve a certain action or behavior (for what purpose). For Kant, ethical norms say
relationship with the ethical end, which is the fulfillment of a duty. It poses the end for the end. Saint
Tomas, Aristotle, del Vecchio, and others, on the other hand, point out that the ethical end of ethical norms
it is the value that is intended to be achieved with them, such as goodness, justice, the common good.

This distinction is not about opposing or exclusive rules, but rather the same
conduct can be regulated ethically and technically at the same time. On the other hand, there is not always
coincidence between them, since for example, in certain cases the infringement of one does not mean
necessarily the infringement of the other.

Various classes of ethical norms.

Before entering into the specific study of the various types of norms
we will give a brief concept of them.

Legal Norms. Rules of coexistence that govern the behavior of individuals among themselves, with the
to achieve a fair ordering aimed at the common good and the integral development of
society.
Moral Norms. Rules of conduct that, approved by the individual in their conscience, tend to
the realization of values, for the transcendent development of man.

Social Conventionalisms. They are those that impose a certain behavior aimed at
make coexistence more pleasant, based on principles of good manners, decorum,
protocol or courtesy.

Religious Norms. They are, in a broad sense, those that refer to religion; in a sense
strict, those that govern the organization and functioning of any religious association.

Relationships between Law and Morality from a Historical Perspective.

It has been widely discussed in doctrine whether or not there is a coincidence.

between law and morality. Even among the authors who support the coincidence, there are
discrepancy about whether this is total or partial. For Socrates, Aristotle, Plato, Saint Thomas
In Aquino there is at least a partial coincidence, that is to say, part of the moral content.
it belongs to the law.

For the Roman jurist Ulpian, there is confusion between law and morality, which is
It is manifested in the definition of law that states: 'it is the art of the good and the equitable.'

Jorge del Vecchio points out that law and morality have a common foundation.
because human behavior is unique.

For authors like Kant and more extremely Fichte, there is a clear separation between
both normative systems.

Certain contemporary authors, proponents of legal positivism, such as Hans

Kelsen and Alf Ross (1899 - 1979) argue that morality and law are distinct systems.
and therefore, from a theoretical point of view, there is no coincidence, although there is factually
some moral contents coincide with the law.

Hebert Hart in his work "The Concept of Law" points out that there is a
historically significant (factual) coincidence between law and morality, but not
theoretical.

It would be interesting to investigate whether certain important legal regulations have

moral content. In the case of Roman law, we could provide examples in both.
senses: slavery and the legal incapacity of women reveal that they are set apart
law and morality. On the other hand, the theory of Roman obligations, which extends up to
our days, have a moral background in the sense that contracts, as a source of
obligations are made to be fulfilled.

Traditional systematic distinction between law and morality.

This distinction relates to the characteristics attributable to these two.

normative fields, proposed by many neocantian jurists of this century, such as
Stammler, del Vecchio, Radbruch, and which has wide acceptance in the legal world.

1- Bilateral nature of Law, unilateral nature of morality.

 Legal norms are bilateral because they face the subject bound by the norm,
there is another authority to demand compliance with that obligation. It regulates the behavior of a
subject in relation to another. For this reason, it is said that legal norms are imperative-atributive,
because on one hand they establish an obligation, and on the other they confer a right or authority. For
example, in the sale the seller has the obligation to deliver the item and the right to
to demand payment of the price, and for its part, the buyer has the obligation to pay the price and of
right to demand the delivery of the thing.

The unilaterality of morality is expressed in that in front of the subject obliged by the
moral norm, there is no other authority to enforce its compliance. The moral obligation derives from
the individual's own awareness, regulating the subject's behavior in relation to others
possibilities of action of the same subject. They are, therefore, imperative, because they only establish
obligations. For example, giving alms will be morally appropriate if the subject acts for
charity or solidarity and being morally inadequate if one acts to be seen or qualified as
kind. The beggar, for his part, is not equipped to demand alms.

2- Heteronomy of Law, autonomy of morality.

Legal norms are heteronomous as they arise from a foreign will or

different from the subject linked by it. This heteronomy is mitigated because the norms are
dictated by the legislative power, which in a democratic State is elected by universal voting.
Because contracts have binding force for the parties involved, as they arise from their
consent and because legal custom, in cases where it constitutes law (art. 2°
C. Civil arises from the voluntary repetition of certain acts by a social group.

Moral norms are autonomous, they arise from the subject's own will.
imposed by them. They only compel when the subject voluntarily recognizes them as valid in
its consciousness. This autonomy is attenuated since society influences its configuration
moral, nonetheless rooted in the inner forum of the individual.

3- Coercibility of Law, Incoercibility of Morality.

Both types of rules can be violated, and both carry sanctions, the
the difference lies in the nature of the sanction, which is different in each

Legal norms are coercible because in the case of infringement, it can be...
to compel their compliance by force, backed by the State. They should not be confused with the
terms coercibility and coercion. Coercibility is the potential for coercion and not in action. The
Legal norms are necessarily enforceable, but eventually coercive.

Moral norms are non-coercive; their compliance cannot be imposed.

through force. Compliance with a moral norm is voluntary and spontaneous. The sanction
in this case it is remorse or social rejection.

4- Exteriority of law, Interiority of morality.

Human behavior, ontologically speaking, is an inseparable unity.

of internal and external aspects, and therefore, there are no exclusively internal acts or
externals. The present characteristics attributed to law and morality are due to
so, just the starting point for the valuation of the human act.
 The law is external as it concerns itself with human action from the
moment when it has been externalized. For example, in criminal matters it is said that the
Thought is never punishable.

Moral norms are internal as they are established in the dimension

internal behavior. The subject must be true to themselves, to their conscience. However,
These moral norms must be reflected in good actions and deeds.
Law and social conventions
(Summary of the text by Eduardo García Maynez)

The purpose of social conventions is to facilitate relationships.

interhuman, making coexistence among men more pleasant and bearable, communication
between them and the mutual treatment. As an example of this type of rule, we can cite the precepts
of decorum and courtesy, etiquette, fashion, and in general all the rules of customary origin
and of unilateral structure.

These precepts resemble those of the Law so much that certain authors
they have believed it impossible to distinguish them. The main attributes similarities between the rules of the deal
and the precepts of Law are:

His social character. It would make no sense to speak of the social duties of an isolated man.
Robinson on his island can perfectly forget the rules of etiquette and fashion.

Its exteriority. The opposition between exteriority and interiority, to which we referred when trying to distinguish
law and morality, there is also a distinction between conventional rules and ethical norms. The
Social conventionalisms refer to a purely external aspect of behavior.
Who greets according to the dictates of good manners fulfills them, even when
the outward manifestation of affection or respect does not align with the person's feelings
what does the greeting do.

The absolute claim to validity. This is not about invitations or advice, but about demands.
that demand unconditional submission, without taking into account the acquiescence of the
forced.

Generally, conventions are unspoken requirements of life.

collective, that is to say, they lack an explicitly and absolutely clear formulation, but nothing prevents
to admit the possibility that they may be formulated and even codified. (e.g. Manual of Carreño).

We will now present some theses from various authors regarding the
distinction between social conventions and legal norms.

Thesis of Giorgio del Vecchio. This author denies the possibility of distinguishing between these classes.
of norms and posits that human activity may be subject to obligations of a nature
moral or others of a legal nature. The norms that create moral obligations are
always unilateral, the obligations arising from legal norms always have structure
bilateral. Logically, it is not possible to accept a rule of conduct that does not belong to the
category of unilateral imperative or bilateral imperative-attributive. However, in the
reality confirms a series of precepts of an indefinite nature, which is difficult to address
to determine their nature. These sometimes resemble morality and other times resemble law, for
it has been said that it is equidistant from moral and legal norms. Without
embargo, a careful examination shows that they either impose duties only, and are
moral imperatives, or they grant powers, and then they have a legal character.

These rules of misleading profile may be imperative-attributive norms that

they have lost their bilateral structure or, on the contrary, moral precepts that aspire to
become rules of law.

According to what has been stated, conventions do not constitute a class.

special norms, but rather commonly belong to the realm of morality, in that they do not
they grant powers.

Thesis of Gustavo Radbruch. This author denies the possibility of distinguishing between these types of
standards and postulates that all cultural products are characterized by constituting a set
of works aimed at achieving valuable goals. The art of a country, for example, is a
set of productions in which the longing to achieve beauty beats. The right, the moral,
religion, in a word, all forms of culture have an analogous orientation, and tend
always striving for values: justice, kindness, holiness, etc. But if we try to find out which
it is a value that serves as a goal for social conventions, we will not be able to uncover them,
simply because they do not exist.

Cultural concepts related to a value can be defined with the help of

the idea to which it is directed. In this way, we determine morality as the reality whose
The meaning lies in developing the idea of the good, and the law as the reality that it has.
sense of serving justice. But we do not find the idea to which conventions
social sciences are oriented and with them the commensurability of morality and law fails by a
on one side with that of social conventions on the other. Social decorum cannot be coordinated with
the other cultural concepts are meaningless in the system of the concepts of culture.

The connection between law and conventions, according to Radbruch, is not of

logical order but historical. This means that social conventions can be a
embryonic stage of the precepts of law or, on the contrary, a degeneration of them
same. Such circumstances explained by the fact that these rules do not differ in a substantial way.

Thesis of Rodolfo Stammler. The norms of law and social conventions must
to be distinguished by their different degree of validity claim. Legal norms
they intend to be valued unconditionally and absolutely, regardless of the will of the
particulars. Social conventions are invitations that the community addresses to
individual, encouraging them to behave in a certain way.

The legal will, due to its autarkic nature, prevails over the
conventional rules with their effectiveness of simple invitations. These are limited to the position that
the law grants and points to them. The forms of the law encompass, therefore, the entirety of life
social, although drawing on possible or existing uses and customs, to regulate
the community demands it as the supreme law.

Thesis of Luis Recaséns Siches. Conventional rules should not be distinguished.

not only of the law, but also of morality, since, even though they resemble each other
norms of one and the other do not identify with them.

Social conventions and ethical precepts are similar in that both

they lack coercive organizations aimed at overcoming the resistance of rebellious subjects and
in that their sanctions do not tend to the executive compliance of the violated norm. They differ.
in that moral precepts consider the obligated person in their individuality and the
social conventions refer to this as 'subject-official' or member
"interchangeable" of a group. Morality requires a conduct that is essentially internal and the uses
social behavior is essentially external. On the other hand, morality has ideal validity, and
the conventions, social validity, and lastly that morality is autonomous and the
conventionalisms are heteronomous.

Social conventions resemble law in their social character, their

exteriority and its heteronomy. The difference between the two must be sought in the content,
but in the nature of the sanctions and especially in the purpose they pursue. The sanction of
conventionalisms tend to punish the offender but not to enforce compliance with the
norm, it is only the expression of a condemnation by the group, it may be all that
terrible that one wants to, worse it does not consist in effectively subjecting the person to behave like
the usual norm determines. The legal norm, on the other hand, pursues as its essential purpose the
observance of the precept, there is the possibility of the imposition of the determined in the
legal precept, even through the use of physical force.

Thesis of Eduardo García Maynez. The distinction between legal regulation and conventions
Social must be carried out attending to the bilateral nature of the first and the unilateral nature of
the seconds. Unlike the rules of law, which always have an imperative structure-
attributive, conventions are, in any case, unilateral. They mean that they oblige, but
they do not allow it. It is a courtesy duty to give up the seat to a lady who is standing on a bus, but
such duty does not constitute a debt. At the very moment it is legally authorized to a
person to demand the observance of a conventional rule, the duty imposed by it
it would become a legal obligation. Legal regulation is bilateral and requires conduct
purely external, conventions also prescribe an external behavior, but
they have a unilateral structure.
Conventionalisms coincide with legal norms in their external nature.
but they differ from them in their unilateralism. In contrast, they coincide with morals in their
unilateralism, but they are distinguished from them in their exteriority.

To conclude, another difference between legal norms and standards of treatment would lie in
the sanction of social conventions is generally indeterminate, not only in its
intensity but also in its nature. The sanctions of the law, on the other hand, are found
determined almost always, regarding its form and quantity. The violation of it
conventionalism often provokes, time and again, different reactions; those of the same legal norm
it must be sanctioned, if the circumstances do not change, in the same way.
The religious norms
(Summary of the text by Abelardo Torré)

Religious norms are strictly defined as those that govern the

organization and functioning of any religious association and in a broad sense as all
those that refer to religion. Regarding the nature of these norms, that is,
regarding whether they constitute a normative system distinct from law and delay, or if they are more
that a sector of legal or moral norms, the doctrine is divided into two trends.

A trend, to which Thomistic and neotomist authors belong, postulates

that religious norms constitute a normative system distinct from law and morality and that
they are superior to them.
 Another trend holds that every religious norm is either a moral norm or
Well, a legal norm. Let's start by understanding that the act of speaking in the legal field
Municipal, family, etc. regulations do not mean that they cease to be political norms.
constitutional, administrative, etc., depending on the cases. This is because the first qualifier refers to
the institution and the second to the nature of the regulated behaviors. Likewise, the fact
Speaking of religious norms does not imply that they are a separate category from norms.
legal or moral. Religious norms will be legal or moral norms depending on whether they govern the
behavior in an intersubjective or subjective manner. That is, all religious norms are at the same
time a legal or moral norm, depending on the point of view from which it is qualified
human labor.

Del Vecchio states in this regard that religious norms, insofar as they regulate
Human actions necessarily take the form of morality or law, according to
generate in the subject obligations for themselves or for others enabling the other
to demand compliance. There is not then a new species of norms but a
a sui generis, purely metaphysical and transcendent foundation of a regulatory system of
conduct that will always consist of a morality and a law related to each other
some way. It is about a new and higher sanction, which the believers attribute to their
the same moral and legal duties, a punishment related to the afterlife and represented
on this earth for her Church. But neither can an ecclesiastical authority, in reality
concretely, regulate the behavior of its followers either by adopting the form of subjective duty or else
of intersubjective obligation, which is the same as saying of morality or law.

For example, the rules governing the celebration of religious marriage,

baptism, etc., are true legal norms, which the Church, similar to any
civil entity, applies within the sphere that allows it a specific positive right, in
consideration of their own purposes. And they are legal norms because they have all the characteristics of such
class of norms, including coercibility. On the other hand, if it is about other norms, which form
part of the basic commandments of every religion, it is evident that they are moral norms
and non-legal.

Finally, the dogmas, which also make up every religion, as they are directed towards
only to the beliefs of human beings and not to their behavior, it is evident that they are not norms,
although they may have derivatives in the subject's behavior, in which case, such behavior will fall
under legal or moral regulation, depending on the circumstances.

THE LEGAL NORM

Legal norms, as we have pointed out, are characterized by being a kind of
bilateral, heteronomous, coercible, and external ethical norms.

Linguistic logical approach to the concept

of norm and to its nature.

Logic, language, and thought are closely related. Language

is the expression of thought. In this way, it could be said that those who do not have language
(verbal) has no thought. Thought and its process of manifestation, in order to
to reach the truth, it must adhere to certain requirements, to certain laws, which have been established since the
The times of Aristotle are known by the name of formal logic. This thinker presented his
conception of logic in a set of works of his called The Organ.

The contemporary author Jaques Maritain, in his work 'The Order of Concepts' presents us with
he says that logic is the art that allows us to progress in order easily and without error in the
act itself of reason, that is, in reasoning. From Aristotle to our days, it is understood the
formal logic as the discipline of correct and true thinking. Formal logic starts from
the so-called 'fundamental logical principles'. These are:

1. Principle of Identity: Each object is identical to itself.

2. Principle of non-contradiction: A judgment cannot be true and false at the same time.
3. Principle of excluded middle: A statement can be true or false but cannot assume a
third value.

When trying to determine the nature and structure of the legal norm, we must
recognize your relationship with language, which assumes various functions. Following the proposal
by Carlos Santiago Nino, we will differentiate between the following functions of language:
Informative or descriptive, expressive, interrogative, operative, and prescriptive. It is advisable.
remember that the expressions belonging to the descriptive function are the only ones that can be qualified as
true or false, in the same way as the mandates, belonging to the function
Prescriptive, they could be classified as just or unjust.

To the expressions belonging to the descriptive function, since the times of

Aristotle called them judgments. Today they are preferred to be called propositions.
We will use the term judgment, understanding that these constitute descriptive expressions of the
language that affirms or denies something about something. This idea was supported by Aristotle, who said
that the judgment specifically affirmed or denied a predicate of a subject. The structure
The fundamental aspect of a judgment, according to Aristotle, is a subject, a predicate, and a link or copula that
the one, which is a verbal form of the verb to be.

Traditional classification of trials

Many jurists have discussed whether legal norms are or are not judgments in a
logical sense. Today most agree that, from a logical point of view, these are not
judgments since they do not belong to the descriptive function, but are within the
prescriptive expressions. The function of legal norms is not to describe anything but to prescribe.
to command. They are the expressions belonging to the prescriptive function of stronger sense,
whose purpose is to channel behaviors.

This that is so clearly seen today sparked great debate until recently.
Many claimed that legal norms are judgements in the logical sense of the term,
discussing the type of judgment that these norms were, whether categorical, hypothetical, or disjunctive,
according to the Kantian classification.

Classification:

Categorical. They are those in which the predicate is unconditionally attributed to the subject.
For example, in the judgment "All men are mortal," the predicate "mortal" is being
unconditionally attributing, that is, without a budget or prior condition to the subject
men

Hypothetical. They are those in which the predicate is attributed to the subject under a supposition or condition.
For example, 'If a metal is heated, then it expands.' In this case, we attribute the predicate.
It expands to the subject 'metal', only under the assumption or condition that it is heated.

Disjunctive. These are those in which the subject is attributed two or more predicates but one in
alternative to the other. For example, Pedro is Chilean or he is Argentine. In this case, we attribute to the
Subject "Pedro" one of the two predicates in alternative.

There has traditionally been a great debate about whether the rules
Legal judgments are categorical, hypothetical, or disjunctive. We said earlier that in the
current events such debate is outdated, because in the last forty or fifty years,
legal logic has developed in ways unexpected for earlier times. Nevertheless,
the mentioned debate is one of the fundamental bases from which has been
subsequent development of legal logic.

Having this in mind, we will study some proposed theories about the
nature and logical structure of the legal norm.

Traditional theory

This theory is not attributed to any particular author but to a series of

authors, among whom are several representatives of the School of Exegesis. It is the
result of a conception of legal norms from the last century and the beginning of the 20th century. It postulates
that legal norms are, in the logical sense of the expression, a categorical judgment, because
it constitutes an unconditional mandate. What it orders must be obeyed without any
condition.

Currently, this theory is rejected because legal norms cannot be a

judgment, since these belong to the realm of descriptive language, and the rules belong to the
prescriptive language, that is, they are orders or commands from a logical point of view
linguistic.

Theory of Hans Kelsen

In his pure theory of law, presented in his work of the same name, he aims that the
law becomes a true science, which had not materialized in his time because
that jurists made the mistake of including extrajudicial subjects in the science of law
(economic, cultural, political, etc.). The solution is to cleanse the law of all elements.
that is not strictly legal, strictly normative. Thus, having exactly
Once the subject of study is delimited, law can become a true science. After
this debugging remains the sole normative form, composed of a certain structure of the
legal order and a certain structure of the legal norm.

Structure of the legal system. It has a hierarchical structure, that is, in the
In the legal system, there coexist norms of higher rank and norms of lower rank.
According to this hierarchical relationship, lower norms derive their validity from higher ones.
 If we seek the foundation of validity of the norms that make up our
legal order, we arrive from the rules of lower rank and in an ascending manner.
Constitution. Then we ask ourselves where its basis of validity is found.
Constitution. To explain this, Kelsen distinguishes:

If the current Political Constitution is the result of a modification of a previous one, in

compliance with the standards that this (the old one) prescribed, the current constitution finds its
validity in the previous Constitution.

If the constitution in force at a given time and place is the result of events of
social upheaval such as a coup d'état, a war, or an insurrection, no
we find the basis of validity in the preceding Constitution. In this case, it must
to presume the existence of a norm that grants validity to the first Constitution in
historical sense. This norm is what Kelsen calls the hypothetical fundamental norm, which
lacks content, and only indicates that this first Constitution in a historical sense is
mandatory, which must be obeyed.

Logical structure of legal norms. The analysis will be divided into two parts, first
We will point out some distinctions and concepts, and then the conception of Kelsen will be presented.
about the logical structure of legal norms in the two publications of his Pure Theory of Law
Law.

1- Kelsen distinguishes between rule of law and legal norm, and within legal norms,
between primary and secondary norms.

Rules of Law: Descriptions made by jurists, authors, and legal scientists.

about legal norms. We find them in their works, treaties, and publications, they constitute
the science of law. These descriptions of norms are judgments in the logical sense of the
(they also constitute, from a linguistic point of view, a metalanguage)

Legal Norms: Precepts found in codes, in laws, and generally in

all regulatory framework, which governs coexistence among men. It is the positive norm
valid. It is structured with a antecedent, a consequent, and a nexus between them (it works whether
we consider the legal norm as a hypothetical judgment (first edition) or with the structure of
a hypothetical trial (second edition) Legal norms are primary and secondary.

Primary Norms: Those that in their antecedent describe an unlawful conduct and in their
consequently assigns a sanction to that behavior. It is the true legal norm and
authentic for containing sanctions, since for Kelsen there is no law without sanctions. E.g. If a
a person who kills another must be punished.

Secondary Norms: Those that in their antecedent describe a lawful behavior and in their
consequently attributes a certain legal effect that does not constitute a sanction. For example, who
buy something, you must pay the price. According to Kelsen, these secondary norms are mere
logical derivatives of primary norms, that is, they are auxiliary. It tells us that the norms
secondary norms can be reformulated in terms of a primary norm. E.g. if the buyer
does not pay the price, this must compensate for the damages caused.

2- The two editions of the Pure Theory of Law.

First Edition. Published in German, Vienna, 1930.

 Kelsen points out that 'the legal norm is a hypothetical judgment of what ought to be.' The expression
"judgments of the ought to be" refers to those that express something that must be a certain way, that
it should be or will be, without prejudice to whether they do not occur in reality; they are directives or
mandates. In this edition, it points out that the secondary rules are of a single type, and that it has
little importance. The primary norms are the true legal norms, structured, like
it has already been said, of a precedent (supposition of fact), consequent (sanction) and a copula that
establish the relationship between them.
The critique is that judgments belong to the realm of descriptive language and norms.
Legal norms are mandates, that is to say, they belong to the realm of prescriptive language.

Second Edition. Vienna, 1960, translated into Spanish in 1978.

He takes responsibility for the criticisms of his first edition, stating that although the rules
Legal judgments are not judgments in the logical sense of the expression; they have the structure of a judgment.
hypothetical of the ought to be (the consequence is attributed to the consequence linked under a supposition or
condition). As we can see, Kelsen only partially addressed the criticisms.
In this edition, secondary regulations gain more strength, recognizing the
existence of various classes of these.

Theory of Carlos Cossio.

This Argentine author, in his Geological Theory of Law, begins by collecting the
distinction between primary and secondary norms proposed by Kelsen, referring to the
first perinorm and to the second endonorm. Critique of Kelsen for not recognizing the value of the
secondary regulations.

The endonorm (or secondary norm for Kelsen) is even more important.
that the primary rules, because they describe lawful behaviors, being normal that the
people adjust their behaviors to the law.

The perinorm describes illicit behaviors attributing a sanction to them, and the
Illegal conduct does not constitute the generality; it is exceptional. Furthermore, it posits that a
The theory of law must also concern itself with content.

Cossio argues that the logical structure of the legal norm is that of a judgment.
complex disjunctive, composed of two simple hypothetical judgments: the endonorm and the
perinorma. It constitutes a unitary structure, with both judgments linked by the conjunction 'or'. In
In this case, the perinorm is established alternatively to the endonorm. The
the basis of this lies in the fact that a legal conduct must necessarily be lawful or
illicit. The buyer must pay the price, or if the buyer does not pay the price, they must be sanctioned.

Theory of Hebert Hart

English jurist, supporter of legal positivism, presents in his work 'The Concept
of Law" his critique of Kelsen's conception pointing out that legal systems,
especially those of civilized societies, are composed of both primary rules and
secondary. He argues that law consists precisely in the union of primary norms
and secondary.
 The concept that Hart has of primary and secondary norms, although it is of
Kelsenian inspiration differs in that for Hart, primary norms are those that
obligations are established, and it adds that failure to comply with these obligations involves such
consequence of the application of a sanction for the offender.

Hart introduces us to two different concepts of secondary rules, which

we must understand them not as contradictory but as complementary.
Secondary rules:
Those that refer to the primary norm.
Those that grant powers either to officials or to private individuals.
Generally, when defining what Hart understands as a secondary norm
the last concept is given. This author distinguishes three classes of secondary norms:

Rules of recognition. They are those that serve to identify which norms belong to a
legal order in a specific time and space. Hart tells us that these are
implicit in each sorting. The recognition rules serve a function
similar to what would fulfill the hypothetical fundamental norm in Kelsen's criterion, pointing that out
Yes, the rule of recognition has an advantage because it is derived from itself.
legal order. We can recognize the rule of recognition in our Civil Code.

Article 6. The law only binds once it has been enacted in accordance with the
Political Constitution of the State and published in accordance with the precepts
what follows.

Article 7. The publication of the law will be made by its insertion in the Journal.
Official, and from the date of this, it will be understood to be known by all and
will be mandatory.
For all legal purposes, the date of the law will be that of its publication.
in the Official Journal.
However, different rules may be established in any law.
about your publication and about the date or dates on which it is due to enter
in force.

Article 52. The repeal of laws may be express or tacit.

It is expressed when the new law explicitly states that it repeals the old one.
It is tacit when the new law contains provisions that cannot
to reconcile with those of the previous law.
The repeal of a law can be total or partial.

Art. 53. The tacit repeal leaves previous laws in force, although
versing on the same subject, everything that does not conflict with
the provisions of the new law.

Rules of change. Its purpose is to introduce norms, modify existing ones or leave them without
effect. They allow for the dynamization of the legal order according to social needs.
They indicate the procedures that must be followed for the primary rules to change within the
system. In certain cases, the change rules coincide with the recognition rule, these
change rules grant powers to certain officials as well as to individuals within
in their own field to modify the law. E.g. the rules that grant powers to the
parliamentarians to enact laws and the powers of the parties to conduct acts and contracts or
render them ineffective.
Awarding rules. They are those that grant powers to certain people, specifically
to the judges to determine whether an individual has violated the legal norms, applying the
pertinent sanction.

Ronald Dworkin's Theory

This American jurist presents in his work 'Rights Seriously', a

natural law position, in a country where positivism and legal realism had prevailed.
Dworkin points out that the legal system of a country is not only made up of positive norms.
but also of principles. This theory, from one or two decades ago, caused great uproar in the
academic environment, since a novel theory was found. In our view, it is not so
novel since this idea dates back to Aristotle, and this idea repeats throughout the
history. . The great coincidence, even in terminology, of Dworkin with Stammler is striking.

THE SOURCES OF LAW

1- Material Sources of Law: A set of political, social factors,

economic, cultural, etc. that motivate the enactment of legal norms and influence their
content.

2- Sources of Production of Law: They are the various bodies that create legal norms,
public or private and within the scope of their authority.

For example, laws emanate from the Legislative Power, decrees from the Executive.
Regulations, instructions, etc. From the Judiciary emanate judicial sentences and orders.
agreed. But legal norms do not only emanate from the organs of the State, in this way
for example, the University of Concepción, a private law entity, establishes internal regulations for its
functioning, or natural persons, who also create legal norms, for example,
when legal acts such as contracts are celebrated.

3- Sources of Knowledge of Law: Those means such as documents,

instruments, and others in which the law is recorded, being possible to find out
from this there.

Today, in addition to books, documents, legal journals, etc., they are being used
more modern means such as computer science to store information related to law.

4- Historical Sources of Law: They are the legal regulations that precede in time that
they influence the formation of a current legal order. For example, they are Historical Sources
from the Chilean legal system the Roman, Spanish, and French legal systems.

6- Formal Sources of Law: They are the modes or forms that the Law has to
to manifest, and the Law manifests itself in the form of legal norms. Consequently,
We will define Formal Sources as the legal norms themselves, considered from the
perspective of its origin.

They are properly legal and therefore the most relevant for
We, therefore, when it comes to sources of law, must specify.
to understand that it refers to the Formal Sources of Law.

The main Formal Sources of Law, according to what is held

primarily the Science of Law in Chile are:

Law or legislation.
2. Legal custom.
3. Jurisprudence.
Doctrine.
5. Legal acts of individuals.
6. Acts of legal entities.
7. International Treaties.
8. General principles of law.
9. Equity.

LAW OR LEGISLATION

Law in the broadest sense

The term law is used as a synonym for legal norm. This very broad meaning
the law is very seldom used nowadays, it is only used by exception.

Law in a broad sense.

The law is understood in a broad sense as all legal norms of state origin,
that are recorded in writing, with the sole exception of the judgments of the
courts. The concept of law in a broad sense includes the Political Constitution of
State, to the laws proper, to International Treaties, to Decrees,
Regulations and other resolutions of political and administrative authorities.

Often Chilean legal doctrine, when referring to the Law as a source

Formal law is assigning this broad meaning to it, when the desirable thing would be that it
it will assign the strict sense. This seems to be a consequence of the influence of the School of
Exegesis, for which the only Formal Source of Law was the Law.

We will provide a concept of what is understood by Constitution. The word

Constitution comes from the Latin expression 'constitutio' (disposition, organization) In a
In a generic sense, constitution expresses the way something is formed, the structure of a
to be anyone. In a formal and instrumental sense, the Constitution 'is the legal norm
fundamentally and predominantly written, which systematically regulates the State, its
government, the fundamental rights of people, and that has supremacy” (Hernán
Molina).

Law in a restricted sense.

 Law is a legal norm that emanates from the legislative power fulfilling the
requirements demanded by the Political Constitution of the State for the birth of legal life.

In the Chilean legal system, since the Constitution of 1980, it is distinguished

various categories of laws, considering their hierarchical order, but all are included
within the concept of Law in a strict sense. The Constitution of 1925 did not make a distinction of
laws, so this is an innovation of the 1980 Constitution. The categories of Laws
existing in our legal system are:

Interpretative Laws of the Constitution.

2. Organic Constitutional Laws.

3. Laws of Qualified Quorum.

4. Simple or common laws.

5. Decrees with force of law.

Some definitions of Law

Aristotle:
Law is the common sentiment of the city.

This definition has been widely criticized because it does not seem to consider the
normative element, essence of all Law. The criticism is situated in a purely
normative, by virtue of which the Law is understood as a legal norm that has
to regulate human conduct, directing it within the margins of what is legally permissible
correct.

Aristotle's definition emphasizes the citizen's feeling, a sentiment

what, in the opinion of many, even if it is collective cannot be transformed into legal norm and only
it remains in the realm of subjectivity.

Gayo:
Law is that which the people command and establish.

This definition also does not fully reflect the normative element, but it does
We make an interpretative effort, it could be said that Gayo, by using the expression 'commands'
it is referring to a normative element, since the mandate aims to regulate and
channel behaviors.

Saint Thomas Aquinas:

Law is the prescription of reason in favor of the common good,
given and promulgated by the one who leads the community

Saint Thomas distinguishes between several categories of Law. Eternal Law is God himself.
Divine law is that which is revealed in the sacred scriptures. Natural law is the norm that governs.
the human behavior derived from the limited or partial knowledge that man has of God and
Positive Human Law is the one defined at the beginning.

When considering the ideas of Saint Thomas, it is essential to insist

in which Positive Human Law must be based on and adhere to Natural Law. Ultimately,
Saint Thomas argues that if Positive Human Law contradicts Natural Law, and with it,
Natural Law, strictly speaking, a law of these characteristics should not be
considered law, moreover, it is devoid of legal character because that human law or
even better, that mandate from the authority, which is against Natural Law, is not binding on
consciousness.

It has been said that this thesis of Saint Thomas is against Legal Security,
On the other hand, it has been said that it prioritizes other values such as Justice or the common good.

Marcel Planiol:
Law is a mandatory social rule established with a permanent character.
by public authority and sanctioned by force

This definition has been widely accepted in Chilean legal doctrine.

primarily among civil lawyers, which is surely due to the influence of law
French Civil in our country.

If we carefully analyze this definition, we will notice that it is not a

definition of what is understood as law in a strict sense in our legal system. Rather
I would be conceptualizing state-origin norms, thus including the Political Constitution.
from the State, to the laws as such, to a large part of the Decrees and Regulations issued
by the President of the Republic and other administrative authorities, and even though it is more
doubtful, even court rulings, clearly excluded from this concept are standards
such as contracts and legal acts of individuals, as they do not emanate from public authority,
just like the custom.

Characteristics of the Law based on Planiol's definition.

It is a Social Rule. Its purpose is to regulate the behavior of men in society.

characteristic that every legal norm possesses.

It is mandatory. It channels and directs the actions of individuals, prescribing certain

behaviors.

3-It has a permanent character. The law is enacted to last or remain in force indefinitely.
Of all the characteristics that Planiol attributes to the law, this is the most debated, since
that although most laws are enacted to have indefinite duration, in
on multiple occasions it is necessary to enact laws that do not have such a character, and that have
clearly defined duration, let’s consider for example, the Annual Budget laws.

It is established by the public authority. The opinion is unanimous nowadays regarding that the
laws emanate from public authority. Laws in the strict sense emanate from an authority
specifically published, from a power of the state, specifically from the Legislative Power.
5-It is sanctioned by force. The law regulates certain human behaviors, and if someone
If you infringe those behaviors, then you receive a sanction.

6-Se Presume conocida. This characteristic is not explicitly stated in the

definition, but it is deduced since it is assumed that the authority, when establishing it, makes it known.
The refusal to admit ignorance of the law is based on the imperative need to grant Security.
Legal. Let us remember what is stipulated by our Civil Code.

Article 8: No one may plead ignorance of the law afterwards.

that has come into effect.

It is general. It applies to an indeterminate number of people and cases.

Civil Code (art. 1°)

"The law is a declaration of the sovereign will that, expressed in the
"form prescribed by the Constitution, commands, prohibits, or allows"

CLASSIFICATION OF LAWS

Depending on the adopted point of view, laws can be classified:

1. From a grammatical point of view.
2. According to its importance.
3. According to its duration.
4. According to its length.
5. According to the matter they regulate.

1- Classification of laws from a grammatical point of view.

Relying on the terms used by Article 1 of the Civil Code, distinctions are made
between imperative, prohibitive, and permissive laws. Before conceptualizing each type of law,
It must be noted that, in fact, every legal norm has an imperative sense.
It can be said that all laws prescribe or mandate someone to observe certain
behaviors and, in a certain sense, all laws are imperative, including those that grant
powers, because even those that allow someone to perform a certain behavior,
it entails a mandate, which translates to not preventing or hindering those who can make use of it
of the faculty. For example, people have the authority to move freely through the streets,
and no one can arbitrarily prevent its exercise.

Mandatory laws (in a restricted sense). They are those that they command or prescribe a
determined action, or they determine the requirements that must be met in order to carry out
a behavior.

Prohibitive laws. These are those that absolutely and in every respect or circumstance prevent.
the performance of a certain conduct. Article 10 of the Civil Code indicates, within the scope of
private, what is the consequence of executing an act that the law prohibits.
Article 10 The acts that the law prohibits are null and of no value,
unless I expressly designate another effect other than
nullity in the case of contravention.
Permissive or facultative laws. They are those that allow or enable the execution of a
determined behavior.
2- Classification of laws according to their importance.

The importance referred to by this classification is given by the hierarchy that

It is granted to the laws. The Constitution of 1925 did not distinguish classes or ranks within the laws.
It was the Constitution of 1980 that, following the traditions of constitutional law
modern, distinguished various types of laws. Among the categories to mention, it has determined the
Constitutional Court that the only superior category hierarchically is that of Laws
interpretative of the constitution, and that the organic constitutional laws, of quorum
Qualified and simple or common do not differ in rank but only in the required quorums.

Interpretative Laws of the Constitution. They are those that require, for their approval,
amendment or repeal, a quorum of 3/5 (60%) of the senators and deputy in office.
(article 63, section 1° Constitution of 1980)

Its purpose is to interpret the precepts of the Constitution. Many discuss the
existence of interpretative laws, because they argue that the Constitution should be interpreted
by another constitutional norm and not by law. In Chile, this is more of a theoretical problem than...
practical since to approve an interpretative law of the constitution the required quorum is
practically the same as a constitutional reform.

Constitutional Organic Laws. These are those that require approval, modification or ...
repeal, require a quorum equal to 4/7 (56%) of the senators and representatives in office
(art.63, section 2 of the Constitution of 1980)

They are taught about some important subjects that, according to the
Constitution, they must be regulated by this kind of laws.

Qualified Quorum Laws. These are those that require the absolute majority of the deputies and
senators in office (art. 63, section 3 and art. 53 of the Constitution of 1980)

The Constitution specifies the cases in which these types of laws must be enacted.

Common or Simple Laws. These are those that require the absolute majority of the deputies and
senators in the chamber (art. 63, final paragraph of the 1980 Constitution).

It can be said that they are all the other laws. The norm is that the
the generality of these is included in this category.

3-Classification of laws according to their duration.

Permanent Laws. They are those that are issued to last indefinitely over time,
until another law, or means determined by the legal framework for the purpose,
derogate.

Temporary Laws. They are those that are enacted to last for a certain period of time that
it has been predefined. The duration of the laws is limited by a loop or condition. In our
A typical case of temporary laws subject to deadlines are budget laws. We can
also give an example of a law subject to condition (condition: future and uncertain fact of
which depends on the birth or extinction of a right.
A law is enacted that provides for the construction of a bridge; once the work is completed, the validity of the law ceases.
the law.

Transitional Laws. Chilean legal doctrine refers to transitional laws as those that aim to
the purpose is to solve the problems that may arise when there is a change in legislation,
that is, when a new law is issued that regulates a subject differently than before
regulated by another law, now repealed. The problems known as are presented here
non-retroactivity of laws. For example, let's assume that the sales contract is
regulated by a law in a certain way, but it happens that on October 30, 1999, a decree is issued
new law that regulates this contract differently establishing different rules. On the 20th of
February 1999, that is, under the old law, Pedro enters into a contract of
sale and purchase with Juan, in which Pedro sells his property to Juan. In one of the clauses
it establishes that Juan will pay the price of the farm on November 20, 1999, that is, under the
Validity of the new law Why law should govern the payment of the price of the property?

We know the principle on which this kind should be resolved.

of conflicts of laws in time, which is established in paragraph 1 of article 9 of the
Civil Code. "The law can only provide for the future and shall never have retroactive effect"
but this is just the beginning of a solution that must be much more specified. This is done in
our country due to the retroactive effect of the laws of 1986, the truth is that this law does not
it is applied too much in the facts because every time a new law is issued regulating
different way a subject, it turns out that this new law contains certain articles and provisions
referred to as transitory articles intended to resolve conflicts that may arise
as a result of this change in legislation. These transitional provisions are the laws that in Chile are
they are called transitional laws.

4- Classification of laws according to their scope.

To classify laws according to scope, that is, according to the field of application,
we will distinguish between the field of territorial application and the field of personal application.

Considering the territory.

General laws. These are those that apply throughout the territory of a country or state.

Local laws. They are those that apply only in a sector of the country or state.

In our country, being a unitary state, the vast majority of the laws are
generals, and only a small minority are local. An example of local laws would be the free trade zone.
from Iquique.

Considering people.

General laws. They are those that apply to all people or inhabitants of a country or
State.

Particular laws. They are those that apply to certain groups or classes of people.
exclusively.
 Currently, most laws are general, since from the
The French Revolution onwards applies the principle of equality before the law. However, it is
it is possible to exceptionally enact certain laws for some special groups of
people without making arbitrary or unjustified distinctions. For example, there is a law that
allows the disabled to import special vehicles without paying the respective taxes
merchandise that all people must pay.

STAGES IN THE LAW FORMATION PROCESS

1- Initiative. It is the act by which a proposal is presented before one of the branches of Congress.
bill for processing. When the initiative comes from the President of the Republic
It is said in the message that the president of the Republic has exclusive initiative regarding certain
subjects. When the initiative comes from the Parliamentarians, it is called a motion. The motion
A parliamentary proposal cannot be signed by more than 10 deputies, nor by more than 5 senators.
In Chile, the popular initiative is not accepted.

The origin refers to the Chamber that begins to consider a bill. In

In principle, both cameras can be the source camera; however, there are certain exceptions.
art.62, inc 2°.

2- Discussion. There is much debate about the main ideas or general frameworks of the bill,
As for the details. It is carried out both by the origin camera and by the reviewer, through
of the first and second constitutional proceedings, with special mechanisms existing within them
insistence.

3- Approval. A vote is held, the majorities or quorums of which are established by the CPE.
approve or reject the bill.

4- Sanction. It is the approval by the President of the Republic of a bill voted

favorably by Congress. It can be express, tacit, and forced sanction. The veto is the
the faculty of the President of the Republic to oppose or make observations on a project of
law approved by the Congress. The veto can be absolute or suspensive, suppressive, substitutive or
additive.

5- Constitutional Control. It is only carried out on certain specific bills.

6- Promulgation. Act by which the President of the Republic certifies the existence of
The law establishes its text and orders compliance through a Supreme Decree.

7- Publication. It will be made in the Official Journal, within the timeframe set by law, and in accordance with the
rules that are indicated in articles 6 and 7 of the Civil Code

Article 6. The law is only binding once promulgated in conformity.

to the Political Constitution of the State and published in accordance
with the following precepts.

Art. 7. The publication of the law shall be made by its insertion in

the Official Journal, and from the date of this it will be understood as known to
 everyone and it will be mandatory.
For all legal purposes, the date of the law will be the
your publication in the Official Journal.
However, in any law, rules may be established.
different about its publication and about the date or dates on which it was
to come into effect.

Decrees with the Force of Law

To the previously mentioned laws, we must add these, which have the
normative hierarchy of a common law. Decrees with the Force of Law are the decrees issued by
the President of the Republic, on matters pertaining to law, prior delegation of powers by
part of the National Congress. This delegation is made through a law called Law
delegated authority. According to the Constitution of 1980, which allows this delegation of powers, it establishes
that in certain subjects, considered more important, Congress cannot delegate these
faculties.

During the validity of the 1925 Charter, the delegation was not permitted.
powers granted by Congress to the President of the Republic, however in practice
this was given. Starting from the 1930s, the parliament, in fact and contrary to the
Constitution began to delegate legislative powers and only in the year 70 was the reform approved that
I authorize the delegation of powers to the President

Decree Laws

They are decrees of the Executive Power on matters proper to law, but that they
they dictate without a delegation of powers from the Legislature, because this does not exist.
power. Decree Laws are issued during periods of constitutional abnormality, when there are
de facto governments because the old constitutional order of the country has been broken. In our country
there have been three periods in which Decree Laws have been issued, during which there was a
breakdown of constitutional order: 1924-1925, 1931-1932 and 1973-1980. We must note that the
The formulated concept is characteristic of Chilean legal doctrine; in other countries, the term Decree
Law is often used with another meaning.

Always after these periods of abnormality, there has been discussion about
to grant value to these Decree Laws. Beyond the theoretical discussion, a decision has been made to
to generally recognize their validity for practical reasons, since these decrees and laws
regulated various matters of social coexistence in such a way that the consequences that occur
they would produce worse effects than keeping them in force.
As a consequence, it has been decided to modify or repeal them to the extent that each
if justified.
CONTROL OF CONSTITUTIONALITY OF LAWS

The constitutionality control of laws is practiced in all legal systems.

legal, being this an expression of the principle of "Normative Hierarchy". In every legal system
In positive law, the norm that is hierarchically the highest is the Political Constitution of the State, therefore
so all other rules must adhere to it both in formal and in the
background.

Any law, before coming into effect, must go through the stages of the process of
training previously studied. It is normal for this to happen, but we may encounter
certain cases in which a law is published, infringing constitutional precepts on the
formation of the same. A law may also be contrary to the Constitution for infringing
fundamental constitutional precepts that must be respected, in this case we are talking about
unconstitutionality of substance.

In our country, there are two types of control mechanisms considered.

constitutionality of laws, preventive or a priori control, and repressive control or a
a posteriori, carried out by the Constitutional Court and the Supreme Court of Justice
respectively. We must add to these bodies the General Comptroller of the Republic,
which has a role in the control of constitutionality of decrees with the force of law.

The constitutional control practiced

by the Constitutional Court.

The Constitutional Court is regulated in its basic structure in the

Articles 81, 82, and 83 of the CPE, and in detail by the Organic Constitutional Law of the Court
Constitutional. This Court has jurisdiction over a series of matters specified in the article
82 of the CPE. We will only refer to the control of constitutionality of the laws that this
organ practice.

This body performs preventive or a priori control, that is, exercised over the
bill projects, before they are enacted by the President of the Republic. It is
It is necessary to point out that only some bills must be sent mandatorily to the
Constitutional Court, such are those related to the constitutional organic laws and to the laws
interpretative of the Constitution. The projects related to the laws of qualified quorum and to the
simple or common laws may or may not be subject to constitutional control exercised by
the Constitutional Court depending on whether it is requested or not by the President of the Republic or by
any of the chambers, or by a quarter of their members in office, and always provided that
that request is made before the promulgation of the law.

Effects of the Constitutional Court's rulings when it pronounces on the

constitutionality of a bill.

This subject is regulated in paragraphs 2 and 3 of article 83 of the CPE.

The provisions that the Court declares unconstitutional shall not become law...
to say, the project declared unconstitutional will not come into effect as law of the Republic. The
The Constitutional Court can declare the entire bill unconstitutional, or
only some articles or provisions of it, as this is generally what happens.

The inc. 3° of art. 83 of the CPE states 'Resolved by the Court that a'
a determined legal precept is constitutional, the Supreme Court cannot declare it inapplicable
for the same vice that was the subject of the sentence

Constitutional control carried out

by the Supreme Court of Justice.
 Art.80. The Supreme Court, on its own initiative or at the request of a party, in matters
of which it is known, or that were submitted to it in an appeal lodged in
Any proceedings before another court may declare it inapplicable.
for those particular cases, any legal precept contrary to the Constitution.
This resource can be deducted at any stage of the management.
the Court orders the suspension of the procedure.

This control of constitutionality exercised by the Supreme Court in a

repressive control or ex post, is exercised over an already existing law and not over a draft of
law.

In order for this control of constitutionality to proceed, it is required that there exists
pending trial, whether before the Supreme Court or before any other court and also in
this trial or case seeks to apply a law whose constitutionality is questioned, who
questions the constitutionality of the law can ask the Supreme Court to declare it
not applicable for that case due to unconstitutionality.

A legal provision, in light of article 80 of the CPE, is understood to be a law.

properly such or a decree with the force of law. This matter was discussed during the validity of
the Letter of 25, which contained an article very similar to the one we are now analyzing. It was argued
that with the expression 'legal precept' they were referring not only to the laws themselves but also
also to other legal norms. In the Constitution of '80 the situation is quite more
necessary since this points out other forms of constitutional control for the Decrees
and regulations, and because there is practically unanimity in considering that contracts and
Acts of individuals are not laws in the strict sense.

The Supreme Court can issue a declaration of unconstitutionality

either by the office or at the request of a party, the latter occurring in the vast majority of cases.

The effect produced by the declaration of Unapplicability by

The unconstitutionality of a legal provision is relative, that is to say, it produces effects only for the cause.
in which it is dictated, and the precept remains in force as law of the Republic. Here in the background it
what is being applied is the same principle as article 3, paragraph 2 of the Civil Code which establishes
“Judicial sentences do not have binding force except regarding the cases in which
currently they are pronounced

Differences between the constitutionality control practiced by the Constitutional Court and the
practiced by the Supreme Court.

1-The constitutionality control carried out by the Constitutional Court is preventive or to

prior and the one practiced by the Supreme Court is repressive or a posteriori.
The constitutional control exercised by the Supreme Court requires that some court be
knowing of a pending court case in which the constitutionality of is questioned
a legal precept. This is not required in the control carried out by the Constitutional Court.
3-The effects of the declaration of unconstitutionality of a bill made by the
The Constitutional Court is general, the project does not come into force. The effects of the
The declaration made by the Supreme Court is specific, the law remains in force.

CONSTITUTIONALITY CONTROL OF
DECREES WITH FORCE OF LAW
 Decrees with the force of law, with their hierarchy of common law, must be subjected
on one hand the CPE and on the other the delegating law. We will consider the adherence to the
CPE. This constitutional control is classified as prior constitutional control or ...
prior and a posteriori constitutional review.

Constitutional control of the decrees

with the force of law prior or a priori.

In this constitutional control, the Comptroller's Office plays an important role.

General of the Republic, who, as established in the first part of Article 87 of the CPE is
An autonomous organization ... will exercise control over the legality of the acts of the
Administration... The expression 'legality' should be understood in a broad sense, that is,
The Comptroller's Office must ensure that the actions of the Administration comply with the laws.
like the Constitution, for this reason all the decrees and regulations that it issues
Presidents must be sent to the comptroller's office so that this body can determine whether they comply.
oh no to the Constitution and to the laws (act of recognition).

If the Comptroller's Office determines that the decree with the force of law adheres to both the
delegation law as to the Constitution, the Comptroller 'takes note' of the decree with the force of law,
which means that it is approved for publication and comes into force. If the Controller 'does not
It takes reason,” it represents him (rejects) it does not proceed and cannot come into force. The
representation can occur already because the decree contravenes or exceeds the delegatory law or
good for being contrary to the constitution, a case that we will analyze.

When the Comptroller presents a decree with the force of law for being
unconstitutional, it is returned by the President of the Republic who has two possibilities,
You can comply with what has been resolved, or send the rejected decree with the force of law to the
Constitutional Court, within a period of 10 days from the date it was sent to it
decree with the force of law by the Comptroller's Office so that it is definitively this court that
pronounce whether this decree with the force of law complies with the Constitution or not.
Constitutional control of decrees with
laws in force or subsequent.

There are two ways to challenge the unconstitutionality of a decree with force of
law in force.

1-The Supreme Court of Justice in the already known terms.

There is a constitutional control over decrees with the force of law that is carried out by the
Constitutional Court. In this case, the issue of constitutionality may be raised by
any of the Chambers or by a quarter of their members in office. There is a deadline of
30 days to file this complaint counted from the publication of the respective decree with
force of law.

TERMINATION OF THE VALIDITY OF THE LAW

Two main causes for the cessation of the validity of the law are distinguished, the causes
intrinsic and extrinsic causal.
Intrinsic or internal causes for the cessation of the validity of the law.

These causes are found within the same law, which will determine until
when it will take effect. These are the so-called temporary laws. The law determines the moment until the
which will be valid by indicating a term or a condition given by the matter it regulates. In
In practice, you will more often find laws whose validity is pre-established by
term that by condition.

Extrinsic or external causal factors for the cessation of the validity of the law.

They are those that result from an external factor to the law, among these causes.
we distinguish

Desuetude or disuse. It is a way of putting an end to the validity of a law due to the fact or
the circumstance that it does not apply to her, the law ceases to be fulfilled and applied both by the
citizens as well as the state bodies responsible for its implementation. This way of putting
the termination at the expiration of the law is not admitted in our legal system, on the other hand, in
those legal systems where customary law has greater importance
Obsolescence constitutes a cause for cessation of the law's validity.

Repeal. It is a way to put an end to the validity of the law through another law that comes after
She, so then we talk about a repealed law and a repealing law. The repeal of the law
It is basically regulated in articles 52 and 53 of the Civil Code.

Whenever a legal norm is repealed, that repeal must be carried out by

another legal norm of equal or higher hierarchy, and it can never be repealed by another norm
juridical of a lower rank than it. To repeal laws, the Constitution requires the same quorum.
What is required for the approval of these.
The that a law can be repealed by another law or by another legal norm of
hierarchy equal to or higher has been accepted in doctrine and generally also by our
courts of justice, but there are a few rulings from the Supreme Court that have adopted a
different position, regarding the contradiction or lack of reconciliation that occurred after the
entry into force of the Constitution of 1980, among some of its articles and certain laws
that had come into force earlier. It was argued that the law was not present
repealed by the Constitution, but it had to be requested that it be declared inapplicable by
unconstitutionality.

The problem of the repeal of the repealing law.

Theoretically, one could raise the problem of what happens to the repealed law.
if the repeal law is revoked. The response is almost unanimous both from the doctrine and
From the jurisprudence, the repeal of the repealing law does not restore the validity of the
old law repealed.

Classes of derogation.

Chilean legal doctrine proposes the following classifications:

Express and tacit repeal.

Express repeal: Defined in Article 52 of the Civil Code, it states that the repeal is express.
when the new law explicitly states that it repeals the old one.

Tacit repeal. It is one in which the new law contains provisions that cannot
to reconcile with those of the previous law. It is not so straightforward to determine when it occurs.
Indeed, the tacit repeal, since we must compare the text of the new law with the
from the ancient and through an interpretative work determine whether its precepts are or are not reconcilable.
In short, if the matter goes to court, it will be the courts that resolve it.
It is understood that the rules are irreconcilable when two texts are
contradictory. To solve these contradictions there are various standards
mechanisms or principles; the principle of hierarchy, the principle of specialty, and the principle of
temporality. An interpretative problem arises when a new law of a character
In general, it is contradictory to the previous one, but it happens that the old one is special or particular.
Here the question arises as to which principle we prioritize. If we prioritize the principle of
the specialty, it is understood that the old law remains in force and has not been repealed
implicitly, on the other hand, if the principle of temporality is applied, the old law should remain
tacitly repealed even when it is special The only principle that will always prevail is
The hierarchical principle 'The higher-ranking rules will always prevail over the lower ones'

What happens when none of the three principles can be applied?

This is a more theoretical than practical question, as the courts in many instances
they have encountered conflicts and have always resorted to one of the three principles.
Let's suppose that two articles of a rather extensive law are contradictory to each other. Not
The principle of temporality can be applied, as that law came into effect on the same day,
Furthermore, both articles have the same normative rank and neither is special compared to the other.
Some authors argue that in such a case, a void or a gap occurs.

Total or partial repeal.

The concepts of these types of repeal are established in the

Article 52 of the Civil Code. The repeal is total when the new law entirely repeals the law.
old law and is partial when the new law repeals only part of the old one. Article 53 resolves the
problem of what can be called implicit partial repeal.

Organic Repeal.

It is debated in Chilean legal doctrine whether this kind of repeal is

admitted or not among us. They because there is no rule that enshrines it.
expressly, this matter has been taken to the courts of justice having only a
by minor faults that accept it. In other legal systems, this kind of
repeal expressly accepted.

Organic repeal is understood as that which occurs when a new one is enacted.
law that entirely regulates a matter that was previously regulated by the old law, but which does not
It is neither expressly nor tacitly derogated. Let's take an example: there is currently a law that regulates
the operation of the Constitutional Court, let us suppose that another law is enacted, which does not repeal
expresses tacitly to the previous one, fully regulates a different tide of the
functioning of the court. In this case, part of the doctrine would argue that a
organic repeal.
Repeal by way of consequence.

Colloquially referred to by some Chilean civilists as repeal by rebound

Oh carambola, this case of repeal occurs when an institution is repealed or eliminated from
legal order. Let us suppose that in Chile the death penalty is abolished, repealing the
precepts of the Penal Code and other laws that contemplate it as a sanction, then it
they derogate by way of consequence all those norms that regulated how it should be
execute the death penalty.

Regulatory power of the President of the Republic

The regulatory power of the President of the Republic is the authority that he has
to issue regulations, decrees, and instructions for the government and administration of the State
and for the execution of the laws.

Regulations. They are those that contain specific rules to govern and manage the
State and the execution of the laws. They are general, mandatory, and permanent.

Supreme Decrees. They provide in a specific or particular way about the government of the State and
the execution of the laws.

The processing of Supreme Decrees consists of the following stages:

1. Annotation and signature: the date and number corresponding within the Ministry is recorded.
origin.
2. Taking notice: If it is in accordance with the law, the comptroller acknowledges it and informs the Chamber of
Deputies. If the Comptroller represents the supreme decree, he returns it to the Ministry.
respective.
Refrendation: Control that proceeds in cases where the decree orders expenses that do not
figures in the Budget Law.
4. Registration: Decrees affecting personnel must comply with this procedure.
State administration and its assets.
5. Communication: to the General Treasury when it comes to commitments for the state.
6. Publication in the Official Gazette.

CUSTOM AS A FORMAL SOURCE OF LAW

Custom is defined as the constant and uniform repetition of a rule of

conduct by the members of a community or social group, linked to the conviction that
responds to a legal need.

The first legal orders of humanity were fundamentally

customary. For quite some time now, customary law has been distinguished and
thus contrasts with Legislation. Customary regulations in the present
They are from the Anglo-Saxon countries like England, part of Canada, and the USA, the rest of the
Countries of the world have legislated legal systems. In any case, legal norms
The customary practices of Anglo-Saxon countries refer to a legal custom, not to the
popular custom as happened in ancient ordinances, it is a custom
specialized and technical, primarily of judicial origin.

Federico Carlos Savigny.

The era of this German jurist coincides with the great processes of codification.
of law in Europe, codifications that have their origin in Rationalism, the Enlightenment and
on their Political expression, the French Revolution. The major argument for the realization of the
codifications was the chaotic and insecure aspect that existed, leading to injustices. A
situation like this required order and for this it was thought to unify the Law, giving it a
harmonic and coherent structure, which would be achieved through the establishment of good codes,
ordered and rational that would emanate from a good legislative power, that would be representative of
the rational will of the people. From this perspective, the most important formal source was
to be the law or the legislation.

Savigny, fundamentally, was opposed to this idea, maintaining that the source
the most important form should be custom. This, in the sense that Savigny gave it, is the
judicial custom that translates into precedents, and above all the custom of jurists
expressed in the so-called Science or Legal Doctrine. According to Savigny, the main source
The producers of legal norms must be jurists because they are the ones who really
they dominate the legal field and those who can best express it. This author took as
universal models of Roman law, which managed to develop reaching a scientific height
thanks to its great jurists.

It was contrary to the legislated law since the codification constituted a

fossilization, a stagnation of the law. At that time, it was proposed that a Code be enacted.
common to all German states, idea later realized. Savigny writes a book
titled "On the vocation of our time for legislation and the science of law", text in
that opposed legislated law and codification. But it was not a matter of opposition.
absolute, but rather argued that this legislation, if there was a need to enact it, should be
girl and above all, it should be very well-founded by the Science of Law. All
legislation, he said, should be prepared by the great jurists.

Elements of Custom

Based on the previously given definition of legal custom, we can distinguish a

objective or external element and a subjective or internal element.

Target or external element: Constituted by a set of acts performed by a ...

community.

1) Plurality of acts. They should not be isolated and occasional acts, but rather they
they must be multiple.
2) The constitutive acts of custom must be repeated over a prolonged period. In order for
they can be considered as legal customs if they are repeated over time.
When we say 'prolonged time' we are speaking imprecisely, and in fact, this is
one of the problems that arise in determining when we are facing
a legal custom.
3)Uniformity of acts. The acts constituting custom must basically be the
same.
4) Advertising of the actions. They must be known by the members of the society in which it is governed.
5) Generality of acts. The custom must be practiced by all or the vast majority.
of the members of the society in which she is governed.

Subjective or internal element: '... the conviction that it responds to a legal need'
This means that she is mandatory as legal norm.

Formation of custom

1-Habit. Repeated and prolonged practice of certain acts, by one or many people,
considering them in isolation and not as a group.
2-Generalization of the habit. This prolonged practice of an act by individuals.
considered in isolation, it later occurs to the estimated social group as
collective entity, that considers the habit as its own.
3-Internalization or interiorization of the habit. For there to be proper legal custom
In addition to the widespread habit, the subjective or internal element, the conviction of
group of practices that respond to a legal need. This means that they are
mandatory, which legally compel.

Classification of custom

Custom can be classified according to its position in relation to

the law, according to the sector it covers, according to the people who observe it and taking into account its nature
popular or the technician who has the habit.

Classification based on the position it has in relation to the law.

1- Custom according to the law. It is the law itself that indicates that custom has force.
mandatory. It is enshrined in Article 2 of the Civil Code.

Article 2. Custom does not constitute law except in cases where

the law refers to her.

2- Custom outside or in silence of the law. It is one in which the legislator says nothing about it.
binding force of custom.

3- Custom against the law or contra legem. This is the case where the custom is found in
contradiction with the law. In the Chilean legal system, and generally in the legal systems
In legislated law, custom does not terminate the validity of the law in any case.

Classification of custom according to the sector it covers.

1- General custom. It is one that is in effect throughout the territory of a country.

2- Local custom. It is one that is valid only in a certain sector or part of the
territory of a country.
Classification of custom considering the people who observe it.

1- Common custom. It is a legal custom observed by the majority of the

people, regardless of their condition within society. This is important to keep in mind.
explain why in the past customs were different according to the social class to which one belonged
belonged. And it says that one of the achievements of the French Revolution is to impose the principle
of equality before the law. This principle, in addition to being stated in the CPE of Chile, is enshrined
in the Civil Code.

Article 14. The law is mandatory for all inhabitants of the Republic,
including foreigners.

2- Particular custom. One that is practiced by only a group or social class.

Classification of customs according to their popular or technical character.

This classification was proposed by Federico Carlos Savigny in the last century.

1- Popular custom. It is practiced by the entire community, by most citizens.

2- Technical or specialized custom. It is one that is practiced solely by those who are knowledgeable or
experts in Law. Savigny placed special importance on the opinion and practices of
the scientists of law or jurists. He argued that the law should primarily be a
the right of jurists, that a good legal doctrine should be the first and most important
formal source of law. In addition to doctrine, it can also be considered as custom.
specialized or technical that practiced by the courts. This has maximum importance, not
not only in the legal systems where the precedent system is accepted, but also
in systems like ours where the precedent is not recorded.

Characteristics of custom

1. It arises spontaneously. It is not the result of a reflective attitude on the part of the
members of the community, rather it is the popular will expressed naturally and
spontaneously over an extended period of time. Savigny pointed out that the
custom as a formal source of law was very close to the spirit of the people. It is advisable
Remember that we are referring to popular custom, and/or specialized custom.
and technique, since it has its reflective character.

2. It is slow to form. Practice takes time to become a habit, as it must

to prolong over time, as an expression of the community's agreement.

3. It has no known author. The author of the custom is the social group from which the norm arises.
of conduct. In specialized or technical custom, it is possible to identify the authors of the
same.

4. It has a certain degree of imprecision. This is because it is made up of uncertain elements, because
example, to determine that the community members have the conviction that the
code of conduct responds to a legal need. The specialized or technical custom,
On the other hand, it has a high degree of precision.
5. It tends to be particularistic and localist. It arises from the social practices of the members of a.
determined community, which has it as a legal custom.

Parallel between custom and legislated law

1-Custom arises spontaneously, law reflectively.

Custom is slowly formed, while law, comparatively, is quickly formed.

Custom has no known author, law does.

Custom is imprecise, the law has a greater degree of precision.

5-Custom is local and particular, the law is general.

Value of custom in the Chilean legal system.

Civil Law.

Only customary law has binding force in this field according to the law. Art. 2° Code
Civil. An example in which the law refers to custom would be article 1546 "Contracts must
execute in good faith, and consequently obligate not only to what is expressed in them, but to
all things that emanate precisely from the nature of the obligation, or that by law or the
customs belong to her.

Commercial Law.

Custom has binding force according to the law and custom outside of the law.
It is due to the fact that commercial activities contain a series of specific practices.
law has wanted to give them legal recognition. Commercial law is the one that in our
Ordering more widely accepts custom.

In the case of custom according to the law, the rule is the same as that contemplated in the article.
2° of the Civil Code.

Custom outside the law is granted binding force in articles 4°, 5° and
6th of the Commercial Code. Article 4 states, 'Commercial customs fill the silence of the...
law, when the facts that constitute it are uniform, public, generally executed in
the Republic or in a particular locality, and reiterated over a long period of time, that
will be prudently appreciated by the commercial courts." Article 5 regulates the only form
admitted to proving the constitutive acts of the custom in silence of the law before the courts
of commerce. These courts were never created, so they currently handle the trials
Commercial ordinary courts with civil jurisdiction Custom according to the law can, n
change, to be accredited by all the evidentiary means accepted by Chilean law. Article 6°
Custom serves as an element for interpreting acts and norms.
trade
 In order for the custom to have binding force in silence or outside of the law,
requires that the acts constituting it be uniform, public, generally executed in
the national territory or in a specific locality being accepted as custom, and
executed over a long period of time.

Article 4 establishes that commercial customs supplement the silence of the law.
expression from which most of the Chilean doctrine has concluded that customary law
Mercantile has an integrative function.

Constitutional law.

Legal custom is not admitted in any of its forms. There is a principle

which states that in public law, only what the law allows can be done and in law
Private individuals can do everything that the law does not prohibit. Article 7, section 2 of the CPE states
No magistracy, none no one can be attributed, not even under the pretext of
extraordinary circumstances, other authority or rights than those expressly granted to them
conferred by virtue of the Constitution or the laws" Let us remember that during the validity of the
The 1925 Constitution saw a custom contrary to a text. The issuance of DFL by the
President of the Republic, what was not allowed in that constitution.

Administrative law.

As a branch of public law, custom is not given value.

embargo, Mr. Enrique Silva Cimma points out that it can be recognized as having binding force to the
custom in the following cases: when it complements the law, when it ensures its effectiveness and
when it replaces the absence of this.

Criminal Law.

It has no value for two reasons. For being a branch of public law and for the principle of
"legality or reserve" which states that there are no crimes without an express law sanctioning such conduct
And there are no other penalties than those specified by a law enacted prior to its commission.

In the Indigenous Law.

Article 54 states: "The custom upheld in court among indigenous peoples

belonging to the same ethnic group, will constitute a right, as long as it is not incompatible with the
Political Constitution of the Republic. In criminal matters, it will be considered when it could serve as
precedent for the application of an exemption or mitigating factor of responsibility.

It could, then, have value not only to custom according to the law, as in law.
common but also the custom in silence of the law, as long as it is not incompatible with
a CPE, it even seems to be accepting custom against the law. The value of custom
In the indigenous law, it would be of greater scope than in other areas of the legal order.
including commercial legislation.

JURISPRUDENCE AS A FORMAL SOURCE OF LAW

 The term has several meanings. Thus, in Roman Law, jurisprudence
it is the doctrine of the Roman jurists. Another meaning would be to understand the
jurisprudence as Science of Law. In Anglo-Saxon countries, it is used the
term used to refer to a series of studies that are included among us in
the Philosophy of Law.

We understand jurisprudence as the set of rulings of the

courts of justice, issued in the same class of matters and in the same direction. In addition
from the courts of justice, the Internal Revenue Service is a jurisdictional body
Labor Directorate, the General Comptroller of the Republic, who resolve conflicts of
interest between individuals, between state organs or between individuals and state organs.
Any decision made by these bodies can be appealed to the courts.
In Chile, lower courts are not obligated to rule in the way that
Previously, the superiors have done it in a similar case, but in practice, the courts ...
inferiors follow the reasoning of the superior rulings, especially of the Supreme Court, for this reason it is
It is important for lawyers to inform the court how they have been ruled previously.
similar cases to the ones they are litigating.

To determine if jurisprudence is a true formal source, we must

let's consider whether jurisprudence is merely declarative or truly a creator of Law. According to the
provided by section 2 of article 3 of the Civil Code, judicial rulings are binding only in the
case in which they are pronounced. In our country, there is a whole tradition originating from the School of the
Exegesis, which holds that judicial sentences are merely declarative, that the judge in
his sentence is a deductive reasoning of the type of syllogism, where the premise
The major premise would be constituted by the law, the minor premise by the case that is submitted to knowledge.
from the tribunal and the conclusion would be the sentence itself. And in a reasoning of this type
Nothing is created.
Currently, the doctrine has maintained that jurisprudence is creator of
right, and that the sentence does not have the structure of a syllogism. This is because when issuing the
the judge interprets the law, and this gives him several possibilities, which is already an act of
will. Thus, in Chile, judicial rulings would constitute a formal source of
very limited effects, since obligate only for the case, not constituting
previous. Section 2 of Article 3 of the Civil Code justifies affirming that jurisprudence is
formal source, in the sense that the sentences are binding for the parties, and because they are
mandatory, are legal norms.

There is another position regarding whether jurisprudence is merely a creator of law.

Declarative, it is the position called eclectic, held by García Maynez. This author tells us
it says that the jurisdiction is merely declarative in cases where there is a norm in
that the judge can justify their ruling, and that it is a creator of law when the judge fills
a lacuna in the Legal System. Let us remember that in almost all legal systems
In the legal world, there is the principle of inexcusability, that is, when the court is required to...
to know a subject, one cannot refuse to resolve the matter, under the pretext that there is no
law that resolves the case. In Chile, judges must base their ruling on a law and, of
not having it, the judgment must be based on equity. Like the cases where there is no
the law on which to base the sentence is extremely scarce, we estimate that the position
of García Maynez cannot be classified as intermediate or eclectic, but rather ends up asserting
that jurisprudence is merely declarative.
 THE DOCTRINE AS A FORMAL SOURCE OF LAW

It is made up of opinions, comments, and in general, the work of the

authors related to subjects of Law. They are equivalent to the Science of Law.
Although it is traditionally pointed out as a formal source, there are doubts about whether it really is.
since doctrine is not a legal norm, it is not mandatory, and therefore, it is not a formal source.
This is because jurists are private individuals, not authorities of the State. They do not have authority.
to dictate legal norms, although there are some exceptional situations, such as when
Augustus granted certain jurists the right to publicly respond, or the case of the Law of
Citations from the year 126, but currently the Doctrine is not recognized as having binding force.
In this way, it is concluded that Doctrine is not a formal source, but a material source of Law.
its importance and influence will be determined by the quality and relevance of its author.

THE LEGAL ACTS OF INDIVIDUALS

AS A FORMAL SOURCE OF LAW

They constitute a source of limited scope as they only bind, by rule

general, to the parties that celebrate it and by exception to third parties. The Legal Acts that with
the most frequent formal sources are contracts and, in general, conventions, and
the will. Above all the contracts, let us remember article 1545 of the Civil Code, which provides
Every legally executed contract is a law for the contracting parties.

THE LEGAL ACTS OF LEGAL ENTITIES

AS A FORMAL SOURCE OF LAW.

The legal acts carried out by legal entities (such as the issuance of statutes by
they constitute a formal source with limited scope, since they only bind
to its members and to people linked to them, such as their officials.

INTERNATIONAL TREATIES
OCMO FORMAL SOURCE OF LAW.

Santiago Benadava defines them as 'an international agreement generally made

between States governed by International Law and intended to produce legal effects
any international agreement is an International Treaty, it is required that those who celebrate it
they have the category of Subjects of International Law. In this category is found
First of all, states are subjects of international law, but other organizations are also subjects.
or entities such as the UN, ECLAC, NATO, etc. They are also required that this
governed by International Law, thus, if a State enters into a sales contract, this
is governed by the private law rules related to the sale, it is not a Treaty
International. The last requirement is that the indicated agreement produces legal effects,
Thus, a simple declaration between States would not be, for Benadava, an International Treaty.
International Treaties can be Bilateral or Multilateral, examples of this type would be the
Charter of the United Nations and the Treaty of Rome of 1957 that gives rise to the Community
European Economy.

Formation of International Treaties.

EXTERNAL PHASE: Consists of the analyses, studies, and discussions that take place among the
representatives of the States, or entities that intend to celebrate the Treaty, generally
commissions of experts and representatives from the foreign ministries. Once
Once an agreement is reached, it moves to the internal phase.

INTERNAL PHASE: It consists of different procedures that are carried out in the
competent authorities of each country, in order to approve or reject the draft treaty
agreed upon by the negotiators.

In Chile, it is the President who, according to number 17 of article 32, corresponds to

the Constitution, "to conduct political relations with foreign powers and organizations
international, and carry out the negotiations, conclude, sign and ratify the treaties that
convenient estimates for the interests of the country." Before their ratification, all treaties
must be sent to Congress, which will approve or reject them en bloc, without being able to
introducing modifications. The measures that the
The President adopts or the agreements that he celebrates for the fulfillment of a treaty in force, to
unless it concerns matters of law. The Constitutional Court will resolve the
issues of constitutionality that arise in the processing of treaties submitted to the
Congress approval. Once it is approved, the President proceeds to its ratification.

International treaties have the status of a law, except those relating to human rights.
which have the rank of constitutional norm.

THE GENERAL PRINCIPLES OF LAW

AS A FORMAL SOURCE

They are the guidelines or directives that inform an entire legal system. Each
Specific regulation determines whether or not they are granted the character of formal whip. For the
Naturalists are nothing other than natural law, and they obtain it through deduction, it is
to say, starting from the great premises of natural law, they deduce the general principles.
On their part, the positivists will extract them from the Law itself, by induction, that is, starting from
From particular norms, general principles are extracted.

The general principles of Law and the Chilean Legal System.

We will analyze the topic in accordance with what is expressed in Article 24 of the Civil Code.
In cases where the preceding interpretation rules cannot be applied, they will be interpreted
the dark or contradictory passages in the way that seems most in accordance with the general spirit of
the legislation and to natural equity.” (the expression “general spirit of the legislation” has been
understood by doctrine as equivalent to 'the general principles of law') It is said that
Don Andrés Bello would have opted for the positivist position, as he refers to legislation.
from which the general spirit will have to be extracted.

To determine if this article assigns formal source status to the general principles of
Right, we must analyze the two situations in which it is placed:

The dark passages of the law. In this case, it is only necessary to interpret them correctly, it is
to say, the general principles of law serve as elements of interpretation, to
determine its true meaning and scope. They would not be a formal source.
The one about contradictory passages. When contradictions find resolution by applying the
general rules for resolving conflicts (criteria of temporality, specialty, and hierarchy)
there is no need to resort to the general principles of law. If these rules do not resolve
the contradictions, one can resort to them, and if so, they would also be employed
as an element of interpretation. They would not be a formal source.

The general principles of law would only be a formal source in the event of a contradiction.
it will be insoluble, even having resorted to the rules and those principles, and we found ourselves
in the face of a void or gap, where the general principles of law would fulfill a function
integrative, and it would be legal norms for the case, it would be a formal source. This approach does not
has been included in Chilean doctrine and apparently, in practice, it can only occur as a
exceptional situation.

EQUITY AS A FORMAL SOURCE OF LAW

Aristotle conceptualized equity as justice for the specific case.

the value that equity has as a formal source of law will be the one that the respective
positive ordering assigned to me. In the Chilean legal system, unlike the
general principles of law, equity is mentioned in various provisions, accepting
Although in a restricted manner, it can be a formal source. We will analyze two of these.

Article 170 number 5 of the Civil Procedure Code tells us that all the
final judgments of first or sole instance must comply with the requirement of the
enunciation of the laws, and in their absence, the principles of equity to which
pronounce the ruling. The judge cannot issue a sentence based solely on their own discretion, they must rule.
in accordance with the current law. If there is no law that resolves the matter, it must be ruled according to the
equity. Equity here is a true element of integration of Law, in the assumption
Equity can be considered a formal source of this article.

Article 24 of the Civil Code. We refer to the previous analysis.

FUNDAMENTAL LEGAL CONCEPTS

Fundamental legal concepts are those that must necessarily be present in everything
legal system, these are distinguished from the so-called contingent legal concepts or
accidental, which may or may not be found in a legal system, without affecting the
survival of this. It is difficult to determine exactly what all the legal concepts are
fundamentals, but if possible mention the most important ones. Thus, we will develop the
Legal Subject or Person

The People.

Being a person for the law means having legal capacity, which is divided into two.
classes, capacity for enjoyment, that is to say, legal aptitude to be the holder of rights and obligations, and
in exercising capacity, that is to say, the ability to exercise one's rights oneself
What it means to be a holder. People are divided into natural and legal.

Natural Persons
 Article 55 of the Civil Code states, 'All individuals of the species are persons.'
human, whatever their age, sex, lineage or condition.

PRINCIPLE OF EXISTENCE

Natural existence and legal existence.

The natural existence of people begins with conception. To this,

the legal existence, which begins with birth, an event that marks the start of the
personality. Article 74 of the Civil Code states: "The existence of every person begins at birth, that is,
He completely separates from his mother.” In its second section, it recognizes the natural existence:
The creature that dies in the mother's womb, or that perishes before being completely
separated from her mother, or who did not survive childbirth even for a moment, will be regarded as
never having existed.

Delivery and birth.

It is the set of phenomena aimed at moving the propelled fetus.

through the uterus via the pelvic canal. Birth involves the complete separation of the
creature of the mother. For birth to constitute a beginning of existence, generator of
personality required:

That the child be separated from his mother.

That the separation be complete. In this regard, there are two doctrines, the Theory of Separation.
material, which postulates that complete separation implies cutting the umbilical cord and the Theory
from the physiological separation that indicates that for the separation to be complete, it is enough that the
creature has come out of the mother's womb and has autonomy of life. We will prefer this.
theory, since the other would mean leaving the determination of the
existence of a person.

That the creature has survived the separation for even a moment. The creature that dies.
in the womb, or that has not survived even a moment after separation shall be deemed
never having existed.

On this last point, the Code adhered to the theory of vitality (it requires that
has been born alive). In opposition, there is the theory of viability (it is necessary that in addition
from birth is capable of continuing to live outside the womb) The current trend is to accept the
vitality theory, since determining when a creature is viable is a fact
complex, which must be examined in each case, so any legal determination in this regard
it would be arbitrary. Regarding who should prove this principle of existence, we can point out
both the one who claims life and the one who claims death must prove it, depending on the case.
(The burden of proof lies with the one who alleges it). Ordinary means will be used.
test.

The existence before birth.

Protection of the life that is yet to be born.

The legislator takes into account the natural existence, with the aim of protecting life and the
rights of the unborn, this is because the creature that is to be born is a germ of
law, a project of a person. Various provisions enshrine this protection. The
The Constitution in its article 19 number 1 paragraph 2 states 'The law protects the life of the unborn.'
The Civil Code in its art. 75 states, 'The law protects the life of those who are yet to be born. The judge, in
consequence, will take, at the request of any person, or on its own initiative, the measures that it
seem appropriate to protect the existence of the unborn, as long as one believes that in some
dangerous way." In its second paragraph, it states "Any punishment to the mother, for which she could be in danger
life or the health of the creature she has in her womb must be deferred until after the
birth." For its part, article 85 of the Penal Code establishes that the penalty cannot be enforced
of death on the woman who is found in certainty, nor to notify her the sentence in which it is imposed
that penalty until forty days have passed after childbirth. The same code
it typifies the crime of abortion and, likewise, labor legislation includes various regulations in favor
of the pregnant woman.

Protection of the rights of the unborn.

Article 77 of the Civil Code states that the rights that would be deferred to the creature in the womb.
maternal, if they have been born and are alive, are suspended until the birth is accomplished. In
in case that birth constitutes the beginning of existence, the rights pass to the newborn.
If you do not do it, the rights pass to other people. In any case, for the right to be
acquire for the creature that is born alive, it is necessary that it has been conceived at the moment of
that these rights were deferred to him.

Time of conception.

A legal presumption is established that determines from the known fact of

I take an unknown as it is the time of conception. Yes, article 76 states: It is presumed that
the right that conception has preceded birth no less than one hundred eighty days
cables, and no more than three hundred, counted back from midnight when it begins
date of birth. No evidence intended to prove that conception has
having taken place outside of that period, however, there is no limitation to be able to
prove that this occurred on a specific day within the said period.

It has been criticized by the doctrine that this is a presumption of law, since
it disregards the possibility of pregnancies occurring outside of these timeframes, something that science
has been able to verify, leading to injustices. Comparative legislations have opted for
establish legal presumptions or not establish any deadline to avoid injustices.

Twin or multiple births.

Our code contains a general rule that resolves which creature is greater when
more than one has been born in the same birth. This is important concerning the enjoyment of the
censuses and for the acquisition of donations or inheritances that may be made in favor of the
firstborn. This problem can be solved by applying Art. 2051 of the Civil Code, which states
When two or more children called to succeed are born from the same birth, without being able to know
the priority of birth will be divided among them, the census will be divided equally... " From this
it is deduced that the creature that is born first is greater. The cited article refers only to
the censuses but the doctrine has estimated that it should be applied analogously to hypotheses
similar.

END OF NATURAL PERSONALITY.

The existence of a person ends with death. Currently, it is only recognized in

our legislation natural death. In the past, there was the institution of civil death, the
solemn profession executed in accordance with the laws in a monastic institution, previously known for the
Church. This institution was abolished in 1943.

Real Death.
It is one whose occurrence is established. The legal system does not define death.
natural, but this is usually conceptualized as the cessation of vital functions. Only
find in the legal order a definition of clinical death, understood as such a
state in which some vital functions are preserved, generally maintained in form
artificial, but nonetheless the individual has lost all awareness or intellectual process. The
the law defines it as 'the total and irreversible abolition of all brain functions, which is
it will certify with the diagnostic certainty of the cause of the ailment, according to clinical parameters
corroborated by the tests or graded exams.” You must present yourself at least to
declares brain death the following conditions (1) No voluntary movement
observed for one hour (2) Apnea after three minutes of disconnection from the ventilator and
Absence of brainstem reflexes.
Death test.

Death is fundamentally proven by the issued death certificate.

by the Civil Registry. This attests to the registration of the death which is obtained prior
presentation of the certificate issued by the doctor responsible for verifying deaths, or
the one who has assisted the deceased in his last illness and with the other legal requirements. In
In the absence of this instrumental evidence, death is proven by the presence of the corpse.
Whoever claims death must prove it.

The congestion.

Article 79 CC. "If two or more people have perished in the same
event... it could not be known the order in which their deaths occurred, it
it will proceed in all cases as if those persons had perished at the same moment, and
none of them would have survived the others.” Likewise, article 958 states “If two or more
persons called to succeed one or the other are in the case of article 79, none of them
it will happen in the goods of others.

Legal effects of death. Death is a natural legal fact that produces the following
effects:

1- Extinguish the personality.

2- The opening of the succession is carried out. At the same time, the hereditary allocations are defined.
or testamentary, except for conditional ones.
The marriage is dissolved.
4- Determine the extinction of non-transferable rights. (Right to request alimony, expectation of
trustee, right of usufruct, use, lodging, etc.)
5- There are contracts that are extinguished with the death of one of the contracting parties (Contract of
drafting of material work, of partnership, of mandate, of loan for use, of lifetime rent, etc.
In the matter of the formation of consent, the offer is extinguished by the death of the
offering.
7- Determine the legal emancipation of the children, by the death of the father, unless
Correspond to the mother to exercise parental authority, and in the case of the mother's death
that she exercises it.

Presumed Death.

Presumed death is the one declared by the judge, in accordance with legal rules,
regarding an individual who has disappeared and whose status of being alive or not is unknown. From this
the definition implies that it is necessary (1) for an individual to have disappeared, (2) that it is not
have news of your existence, (3) that it be declared by judicial sentence and (4) that the
the declaration is made in accordance with the legal regulations governing the institution.

This institution is based on the need for legal certainty, it is important for
determine to whom the assets of the presumed missing person will be passed.

Active subject and competent court.

The declaration of presumed death can be initiated by any person who has an interest.
pecuniary subordinated to the death of the missing person (presumptive heirs, legatees,
trustee, etc.) but not their creditors, since their interest does not subordinate to death.
of the missing person and can be addressed against the representatives or attorneys, and in the absence of these,
request a curator of the assets.

The competent court to declare presumed death is that of the last domicile that
had of the missing person (there can be more than one). If the missing person did not have an address in
Chile, the Chilean courts are not competent.

Periods of disappearance.

MY ABSENCE: There are great possibilities that the missing person will reappear, only they
tends to the management of your assets.

PROVISIONAL POSSESSION: The presumed death has already been declared, the possibilities that
a 50% appearance, provisional possession of their assets is delivered to the alleged
heirs, those who must fulfill certain obligations and be subject to restrictions of
alienation.

FINAL POSSESSION: The possibilities that the missing person is dead are many, because
the definitive possession is granted to the heirs and the restrictions are lifted.

PERSONALITY ATTRIBUTES

Attributes of personality (or rights of personality according to some authors) are the
a set of advantages, prerogatives, and powers that derive for those who hold such
benefit. In addition to rights and prerogatives, duties are also important. They cannot be denied to
no person and they are non-negotiable, just like the duties inherent to them. It is about
extra-patrimonial goods, without economic value, but could come to have it when they
they are injured and there is room for compensation. The attributes of personality are the name, the
capacity, nationality, residence, marital status, assets, and rights of the
personality.

The Name.

The name is the designation that serves to individualize a person in life.

social and legal. It is the sign that the law imposes on people to distinguish them from one another. This
consists of two elements: the pronoun or proper noun (which distinguishes within
of the family group) and the last name or patronymic name that indicates belonging to a
determined family.

The Civil Code does not regulate the name; however, numerous provisions do
they refer to him. The law on Civil Registry states that birth certificates must
the name and surname of the newborn, as indicated by the person requesting the registration
establishes that the registration will also include the names and surnames of the parents if the newborn
he was born legitimate and if he were illegitimate, the name and surname of the father who recognized him.
It prohibits imposing extravagant, ridiculous, improper, or misleading names. The adoption law.
authorizes the adopted person to take the surname or surnames of the adopter(s). According to
the law on adoptive legitimization, the ruling granting the adoption will order that it be registered
adopted as the child of the adoptive parents.

The name is indivisible, irrevocable, inalienable, non-transferable, and

non-transmissible (except from parents to children), unseizable and immutable in general (although
the law authorized the change of name and surname). It is acquired primarily by parentage. The
Common adopted children can take the surname of their adopter. The adopted in form
legitimate, necessarily that of the marriage that has adopted them.
The right to a name grants its holder the ability to use the names and surnames with which they have been identified.
individualized in their birth registration, and authorizes the power to prohibit others
people the illegitimate use of their name.

The ability to enjoy.

A man has legal capacity from the moment he is born to be the holder of rights, that is,
has the capacity to enjoy. But this does not necessarily mean that he is qualified to exercise
by itself the rights of which it is the holder. It does not necessarily have the capacity to
exercise. The general rule is capacity, Article 1446 of the Civil Code states 'Every person is
legally capable, except for those that the law declares incapable." These incapacities are
establish that the legislator considers that he does not have sufficient discernment to
act in the legal life. Incapacity can be absolute or relative.

ABSOLUTE INCAPACITY. They can never act personally in legal life, they must be
they are always represented. The insane (beings deprived of reason) are absolutely incapable,
the immature (male under 14 and female under 12) and the deaf-mutes who cannot
to convey in writing.

RELATIVE INCAPACITY. Besides acting represented, they can act with authorization.
Minors are relatively incapable (males over 14 and females over 12)
minors under 18) and the dissipators (the one who shows a total lack of prudence through actions
repeated acts of waste) that are under prohibition to manage their own.

The persons who correspond to the representation or authorization of the

those who are incapable are referred to as legal representatives. Article 43 of the Civil Code states 'They are representatives'
legal guardians of a person, the father, the mother, the adopter under whose custody they live and their guardian or
curator

Nationality.

Nationality is the legal bond that unites a person with a specific State.
This link creates rights and duties between the State and the subject. The duties of the subject
(state rights) mainly consist of defending and providing certain services to
State and respect its legal order. The duties of the State (rights of the individual)
essentially understand the guarantee of the right to life, to physical integrity, to freedom,
to the protection of rights, admission to public jobs and functions, equal distribution
of taxes and contributions, etc.

They are Chileans whom the Constitution of the State declares as such. The others are
foreigners. Article 10 of the Constitution states the ways to acquire Chilean nationality:
1- For being born in Chilean territory.
2- Having been born in foreign territory, child of Chilean father or mother and settling in
Chile.
3- Being foreigners by naturalization letter in accordance with the law
4- By special grace of nationality by law.

Article 11 of the Constitution outlines the grounds for loss of nationality and establishes that it
allows dual nationality when Chileans must adopt that of the country in which they reside as
legal or constitutional requirement for its permanence in the.

In the area of private law, article 57 of the Civil Code states that 'the law does not recognize'
differences between Chileans and foreigners regarding the acquisition and enjoyment of rights
civilians..." This principle, however, has exceptions.

The home.

Article 56 of the Civil Code defines it as 'the residence accompanied by actual or'
presumably with the intention of remaining in it" It is the legal residence of a person for the
exercise of their rights and the fulfillment of their obligations. The element of intent is more
It is important that the physical presence, since mere residence, without intent, cannot constitute domicile. It is
necessary to distinguish:

Room or dwelling: the factual relationship of a person with a place where they stay and
generally stays overnight, but it can be accidental, occasional, or temporary.

Residence: It differs from a room in that the concept of transience is eliminated. It is the
the physical presence of a person in a specific place permanently and habitually.
It will serve as a civil residence for those who do not have civil residence elsewhere.
part.
 The domicile is the person's intention to have their place of residence as
seat of their social and legal life. This can be divided into political which is related to the territory
of the State in general and in civil (def art. 56) which is divided into general and special. In Chile,
accepts the plurality of addresses.

Marital status.

According to Article 304 of the Civil Code, 'Civil status is the quality of a citizen, in terms of
it enables him to exercise certain rights or enter into certain civil obligations." It is defined to him
generally, like the permanent quality that an individual occupies in society derived from
your family relationships. The quality of permanence is not exact, for example, the quality of
Legitimate law is permanent, but that of illegitimate law is not. It has also been said that it is a...
indivisible, this is exact in a relation class, but two states can be juxtaposed
based on different relationships (legitimate child and married at the same time)

THE LEGAL DISCIPLINES

Summary of the text by Abelardo Torré

Most authors consider the following as fundamental legal disciplines:

Science of Law.

2. Philosophy of law.
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3. General Theory of Law.

4. History of Law.

5. Sociology of Law.

6. Psychology of Law.

We highlight among the auxiliary legal disciplines to Comparative Law.

The Science of Law

The expression Science of Law is used in three senses:

In the broadest sense, encompassing all legal disciplines.

2. In a more restricted sense, encompassing all true legal sciences, with

exclusion of the Philosophy of Law.

3. In a strict sense as a synonym for legal dogmatics.

 Legal Dogmatics is the science that aims to study, or rather,
interpretation, integration, and systematization of a specific legal framework, for its
just an application. García Maynez defines it as the science that aims to expose
ordered and coherent set of legal precepts that are in force at a certain time and place
determined, and the study of the problems related to their interpretation and application.

Legal science analyzes the law for its application, for example, analyzing
a precept and seeking the connections it has with the other articles of the
ordering. This is the analysis made by the jurist. The lawyer when advising a
poor person a certain controversy, the judge as a prior step to the application of
Law, the legal scholar in the works that refer to the various branches of Law. This does not
It means that they will do without the other legal disciplines, but in this case only they will intervene.
as auxiliaries. The science of law is the most important of the mentioned disciplines for
Those who wish to graduate as lawyers, as it is the one that the jurist applies as such.

Main problems of the Science of Law.

1. Interpretation of Law. It consists of establishing the true meaning and scope of the
legal norms.

2. Integration of Law, through legal constructions. In this way, it is bequeathed to

establish a specific regime for social relations not expressly provided
In positive law, the gaps of the law are filled.

3. Systematization. It consists of the coherent and logical ordering, according to certain

classifying criteria, of the entire set of legal norms that constitute a Law
positive determined. Thus have emerged and emerge the different branches of positive Law and the
respective specialties of legal dogmatics that study them. Within each branch, the
continuous systematization, grouping the norms within institutions, and within the
institutions the continuous systematization to study the different aspects they present.

4. Application of Law. This presents problems that must also be clarified by the
scientific of Law, such as the retroactivity and non-retroactivity of the law, the
conflicts of norms in space etc.

5. Legal Technique. The work of the Jurist can be guided by a series of technical rules that
they prescribe a set of special procedures, the observance of which allows for work
well organized and ensures more fruitful results

In summary, the task of the Science of Law consists of interpreting, integrating the
law through legal constructions and systematize the norms that constitute a right
positively determined. All of this with a view to the fair application of that regime, to social life.

The Philosophy of Law

It is a branch of general philosophy and thus encompasses the deepest issues and
essentials of law, placing its study in a total systematization of knowledge
humans, which allows us to understand the meaning and significance of the legal in a
total conception of the world and of life and the character and foundation of the disciplines that
they take as object. Thus, philosophical knowledge is pantonomic, it encompasses Law in its
totality, and autonomous, for the Philosophy of Law is knowledge without assumptions.
 Stammler defines it as the doctrine of what is in legal reflections
it appears as an unconditional and universal value.

Fundamental problems of the Philosophy of Law. Del Vecchio lists the following:

1. Logical problem or the concept of law.

2. Phenomenological problem. Understanding law as a universally occurring phenomenon.

human, the legal process, throughout history, will allow us to perceive and establish
principles or tendential laws, the general meaning of legal transformations.

3. Deontological problem. It consists of investigating what the law must or should be, in contrast to
that which is, opposing an ideal truth to an empirical reality.

The History of Law.

It is the branch of General History that studies the development of Law.

explaining it based on the respective causes, with the individualizing scope inherent to
history.

It is a branch of General History, referring to one of the cultural manifestations of the

towns, the Law.

2. Study the development of Law. That is, not only study the legal bodies but also
also the application they have had in the reality of past life.

3. The transformations of law are explained in terms of the respective causes. No

it is limited to a descriptive and chronological narration of positive law, but it explains its
transformations based on the factors that have influenced, locating the institutions
legal within the respective social historical process.

4. Study the facts with an individualizing scope. It does not formulate laws like other disciplines,
but its purpose is fulfilled by explaining the facts.

The Sociology of Law.

It is the branch of General Sociology that focuses on Law as a phenomenon.

sociological, with the aim of explaining its characteristics and function in society, the relationships and
reciprocal influences between those social phenomena, as well as the transformations of Law,
with a general scope.

It is a branch of General Sociology, therefore it has the same method and characteristics.

2. Law is a social phenomenon; it only exists where there is society, and in this character it
Sociology focuses on Law. It approaches it as a product of social coexistence.

It takes charge of the basic social function of Law, to govern human coexistence.
4. Analyze the reciprocal relationships of Law with other social phenomena.
influence of social phenomena on law and of law on those social phenomena.

5. It studies the transformations of Law with a generalizing breadth, in order to formulate

laws that explain those transformations.

THE LEGAL ORDER

The legal norms that regulate coexistence in society are not isolated norms in
disconnected from each other, these norms only make sense within a set known as
Legal Order, conceptualized as the unified, coherent, and hierarchical set of
Legal norms that govern social coexistence in a particular community.

The legal order presents the characteristics of normativity and coercion, unity,
coherence, of the institutionality and the primary bodies, of integrity and hierarchy, which
we will proceed to explain below

1-NORMATIVITY AND COERCIVENESS. The regulation is composed of

legal norms, which have the characteristic of being coercive. These only acquire meaning
and it can fulfill its function if they conform to an Order, which is composed of many
and very varied systematized norms.

2-UNITY OF THE LEGAL SYSTEM. In each State, there is only one legal system.
Legal. Such unity derives from the fact that all its norms find their origin and foundation
of validity in the superior legal norm of the system, the Political Constitution.

3-COHERENCE. The legal norms belonging to a specific legal system do not

they must contradict each other, but we know that in fact, due to the large number of
existing norms, such contradictions can arise. Therefore, for these cases,
Since ancient times, legal systems have established principles aimed at solving such issues.
contradictions. These are the principles of hierarchy, temporality, and specialty.

4-THE INSTITUTIONALITY. PRIMARY BODIES. The Legal Orders

they constitute institutionalized systems, that is, their norms establish authorities or
centralized bodies to operate. The bodies responsible for creating and applying the standards
The most relevant legal bodies are called primary organs. Examples of organs would be
primary are the legislative and judicial powers. For authors like Hart, Raz, and others, the law and
With this, the legal order would currently be unthinkable without the existence of these.
primary organs.

5-THE INTEGRITY. Some authors, such as Kelsen, assign to the Legal System the
characteristic of Integrity or fullness, which means in the legal order not
there are voids or gaps. Other authors argue that in no case the Regulation
Legal constitutes a completeness, as situations not regulated will always arise.
There will always be gaps or voids.

6-THE HIERARCHY. The Ordering has a hierarchical structure, meaning there are rules of
upper and lower ranges, where the lower ones must always be subject to the
superiors and never contradict them. This is a very old thesis, but who better has
 this idea is expressed by Kelsen, in fact, a large part of his theory is explained from the
hierarchical structure.

Foundation of validity and effectiveness of the norms of a

Legal Order.
The concepts of validity and the basis of validity and effectiveness of norms and
Legal systems are not always used with the same meanings, they are
broad and complex concepts, for which there are many opinions about them. They are
also important for the understanding of law and according to the way of
understanding them reflects the conceptions about Law.

Regarding the concept of validity, Carlos Santiago Nino tells us that this is a
term of extreme ambiguity and identifies six focal points of meaning of the term. Namely:

1- Validity as the existence of the norm and the legal system.

2- Validity as the justification of norms and the legal order. This means that
the norms are ethically justified by pursuing justice, the common good, the
freedom, etc. There are authors who in this case prefer to speak of the basis of validity.

3- It can be said that a norm is valid when there is another legal norm that declares its
application or enforcement is mandatory.

4- Another meaning of validity is one that refers to the fact that the norm has been issued in
compliance with other legal norms.

5- Validity as belonging to a specific legal system.

6- Validity as a synonym for validity. That a norm is in effect means that it is

mandatory and therefore must be obeyed. Carlos Santiago Nino makes synonyms
validity and effectiveness, a question we do not share, since this author indicates that the
the validity of a norm means that it is generally applied and observed in the
facts, indicating that this is the same as the effectiveness of legal norms.
Conceptualize validity in a different way. We will reserve the term effectiveness.
to refer to the fact that the norm is indeed generally applied and obeyed.

Validity and basis of validity of law.

We will understand the validity of the law as its being mandatory, that it must be
obeyed. We will understand the basis of validity to be the reason why these norms must
to be obeyed and for the effectiveness of the circumstance that these norms are obeyed in the
facts, whether by voluntary compliance or imposed by the authority of the State.

We will examine the proposed theories on the basis of validity of

Law 'proposals by three authors, representatives of the three trends in which they are grouped
the conceptions of law.

Theory of Saint Thomas Aquinas. (Catholic natural law conception)

St. Thomas distinguishes three classes of laws: eternal law, natural law, and positive human law.
that adds parallel to divine law. The divine law is the one found in the Sacred
Scriptures. The eternal law (God Himself) is the ultimate cause and the ultimate foundation of all
creation. But man does not have the capacity to completely understand this eternal law
what is infinite and unlimited, but can know in its consciousness a manifestation of this that
it is the natural law, which allows one to determine good and evil, and which prescribes doing good and
avoid evil, which would be the first and basic expression of natural law. Subsequently, others
Catholic authors like Fco. Suarez distinguished between primary natural law (unchangeable, valid
for all time and place) and secondary natural law (derived from the primary and that can be
adapted to the circumstances.

This natural law is for St. Thomas the foundation of Positive Law. Human law
positive law must be based on natural law and never contradict it. This author insists that the
A positive human law that contradicts natural law is not obligatory in conscience. But, in order that
this may be disobeyed must meet the following requirements:

1. Having confirmed that there is indeed a contradiction.

2. Consider whether the positive law has any possibility of interpretation that does not contradict the
natural law.
3. And to determine whether the evil that results from compliance is greater or lesser than the one that would result from it.
your non-compliance.

Hans Kelsen's Theory (positivist)

Kelsen seeks to provide a foundation of validity that is strictly legal and

normative. Its fundamental proposition states that a legal norm can only find its
validity foundation in another legal norm. A lower-ranking norm will find its
foundation of validity in another legal norm of immediately higher rank than it, having
the inferior that is subject to the superior both in its content and in the manner of its creation.

Kelsen's theory has been widely accepted, but criticism arises when we
we ask where the Constitution finds its basis of validity. In response to this, Kelsen
it points out that two situations must be distinguished:

A. If the current constitution in a state is the result of a reform of the previous one, it conforms
the procedures that it indicated, the new Constitution finds its foundation in
validity in the previous one.

B. If the Constitution arises as a result of a factual event (revolution, coup d'état, civil war,
etc.). The Constitution that arises in this way Kelsen calls the first constitution in
historical sense. There is no legal norm that grants validity to this Constitution, and Kelsen
it tells us that in no case can it find its validity in the events that occurred, but rather that
it should be assumed a norm that grants it validity, the fundamental hypothetical norm, which
will only require to grant validity to the first Constitution in a historical sense, that this
be effective.

Critiques of Kelsen arise from the postulation they make of the hypothetical norm.
fundamentals. First, it is criticized that the fundamental hypothetical norm is a premise, and that
The mere assumptions or non-demonstrable hypotheses do not have to be accepted. Kelsen
he argues that all sciences start from hypotheses, to which it is replied that
those sciences start from self-evident hypotheses, but the fundamental hypothetical norm is not
absolutely a postulate that appears as self-evident to the human mind and therefore
it cannot be accepted. The other criticism relates to the requirement of the hypothetical norm
fundamental, and that the first Constitution in a historical sense is effective. Kelsen makes it dependent
the validity of law is something factual, and it is precisely the one who seeks to extract from science
from the law every factual element, its proposition is contradictory to the basic postulates
of his doctrine.

Theory of Alf Ross (realist)

For Ross, valid law is that which judges apply because they believe or feel it is.
mandatory (Let ’s remember that realists understand the term validity differently). From
According to Ross's theory, the basis for asserting that a norm is valid is found
and two aspects:

The norm must be effectively applied by the judges (External fact)

That judges feel or believe that the rule they are applying is mandatory (Fact
internal or psychological

Without going into detail, let us remember that for this author the recipients of the rules
legal matters do not involve all people but rather judges who have the obligation to apply them,
when appropriate, to all the inhabitants.

The problem of the Gaps in Law

and the Integration of the Legal Ordering.

When a case is submitted for the decision of a court of Justice or of a

jurisdictional body does not find a solution in the positive norms of
ordering, we find ourselves in a void or gap. There is debate about whether
do these lagoons really exist or not, basically there is a proposal that
it argues that these gaps will always arise because the legislator cannot
to foresee all the situations that may arise, and another that states that the Ordering
constitutes a hermetic fullness, with no gaps or voids. We will move on to
examine some of the proposals regarding this.

Different solutions to the problem of legal gaps.

NAIVE REALISM. For this trend, there are gaps in the Legal System, since
that life will always offer unforeseen cases. Do not believe in Law as a fullness.
hermetic, but as a discontinuous set of norms that regulate different aspects of the
coexistence.

SCIENTIFIC EMPIRICISM. (Donati, Zitelmann). It argues that there are no gaps due to the existence of
a peripheral norm (Everything that is not prohibited is allowed), obtained through
review of all the stated norms, which allows inferring this other implicit norm, of the same
positive force that the explicit ones. According to this position, the principle of hermetic fullness
It would exist but with the character of a positive norm.

PRAGMATISM. It argues that there are gaps in the Law but that one should proceed as if there are none.
the ones (that) there would have been.
PHILOSOPHICAL APRIORISM (Kelsen, Cossio). It holds that there are no gaps in the legal system.
legal, because this constitutes a full and hermetic whole. It differs from empiricism in the
foundation of the principle.

ECLECTICISM. It asserts that there are no gaps in the law, but that there are in legislation.
More precisely, it states that there are no gaps in the law from a logical point of view, but
Yes, from a positive point of view, because the law cannot contain a regulation
express or implicit of all the cases that life can present. It is one of the most
generalized.

FINES OR VALUES OF LAW

Regarding values in general, and particularly about ethical values, one

they have formulated various theories, ranging from affirming them unconditionally to
simply deny them. The positivist, empiricist, and neo-empiricist conceptions
they consider that they have no real existence and that they are unknowable from a
rational and scientific perspective. The philosophical conceptions of classical philosophy
Greek like Plato and Aristotle, the thinkers connected to Christian thought and
also other trends, such as phenomenology, accept their existence
and its cognoscibility.

It's very difficult, considering the many positions that exist regarding this.
formulate a concept of value. We will work with the concept given by Max Scheller,
author of the phenomenological trend, one of the most important of the 20th century. Scheler says that
Values are qualities or ideal essences found in the objects of reality.
"cultural." Scheller's theory opposes that of the neokantian tendency, which postulates that the
values basically depend on the subject doing the assessment, which are the structures
the morals of the subject impose values in the external world. Furthermore, the neokantians
they proposed a purely formal concept of value. Scheller will tell us that values do not
are not only something formal but also represent content. For this author, values
they present the characteristics of being non-independent, objective, a priori (not obtained from the
experience), bipolar and hierarchical.

1. Not independent. They do not exist on their own, but always occur or exist in a
thing, in an entity of cultural reality. Thus, we find goodness in men.
good and in their good deeds.

2. Objectives. With this characteristic, Scheller contradicts the merely formalist conception of
the neokantian values. Here it asserts that values are ideal essences that have a
content (valuable) regardless of the subject. In front of this position, many expressed their opinions.
he was proposing conceptions very close to those of Plato, for it is worth asking
where these ideal essences exist. Scheller's explanation, however, is different,
It does not propose a world of ideas, but rather asserts that these do exist in reality.
cultural. This is the case with aesthetic values in works of art. It adds that they should not
confusing values with goods, since goods or valuable goods are the
objects of the cultural reality in which values are found.
3.A priori. They do not originate from experience; they are independent of it. In this
point, follows Kant in part and partly contradicts him. It follows him in that it affirms that the
values are a priori and contradicts it in the way of understanding the a priori; the one that for Kant was
only formal, for Scheller it is of content or material.

4. Bipolar. In front of every value we always find its respective anti-value. That is why
talk about the positive pole (value) and the negative pole (anti-value).

5. They have a hierarchy. Against Kant, Scheler asserts the primacy of value over duty.
Kant's ethics does not recognize that values should not be produced by man, but instead
that these exist and man will limit himself to recognizing and discovering them. That the values are
object of emotional intuition and not of theoretical activity. For Scheller, to deny the
intentionality of feeling, the ability it has to see essences and capture values
It is nothing more than a prejudice. For this author, there exists an eternal and absolute legitimacy of the
feelings, which cannot in any way be reduced to the typical legitimacy of the activity
intellectual. What the feeling sees are the essences in terms of values. Thus, beings
Humans possess an innate instrument, sentimental intuition, that captures values.
objectives for which things are goods and captures and recognizes the existing hierarchy among them
these values, each of which is embodied in a person or archetype. Scheller
proposes the following hierarchical scale:

Religious values (sacred - profane)----------------Saint

2. Cultural or spiritual values.-----------------------Genius.

a) aesthetics (beautiful - ugly) ---------------------- artist.

b) ethical - legal (just - unjust) -------- legislator.

c) speculative (true - false)---wise.

3. Vital values (noble - vulgar)---------------------------Hero.

4. Values of civilization (useful - harmful) ------------Technical

5. Sensitive values (joy - sorrow, pleasure - pain) ---Liver.

Values and their hierarchy are grasped by intuition, by emotional vision. This
puts us in touch with value, independent of will and duty, as these are
they are conditioned and grounded by this same intuition. It is not true that what is not
rational should be sensitive, there exists an extra-theoretical spiritual reality that is intuition
emotional, what Pascal calls "the order of the heart".

The special case of moral values: For Scheler, moral values are not found in
At no point in the hierarchy does it tell us that moral value is realized when one chooses the pole.
positive, and that in case of a conflict of values the higher value will always be chosen, not the lower one.

THE LEGAL VALUES.

 The part of legal theory that deals with legal values is known as
Theory of Legal Values or Legal Axiology. In this subject, as in that of values in
In general, the discussion revolves around its existence, knowability, and what exactly they are.
the legal values. However, the fact is that practically all the regulations
legal documents of importance (e.g. Corpus Iuris, Seven Parts of Alfonso X, French Code) originate from
the basis that there are legal values such as justice that positive law must protect
and promote, and thus, we end up finding reason in Aristotle when he says that the Law
natural exists within the very positive law itself. The legal systems refer to the
justice, good faith, public order, good customs, etc. We will examine the values of
Justice and Legal Security.

A. Justice The most well-known of the many definitions that have been proposed is the
from Ulpian, recorded in the Digest, which indicates that 'Justice is the firm will and
continuation of giving each one their due." This definition has been criticized for not pointing out
what is each one and besides, it is said to be a mere feeling, and that it is not
empirically verifiable. The truth is that the notion is limited to providing a guideline, what
each one corresponds will be determined in each specific case, and the one that is not
empirically verifiable is questionable, since each time a situation occurs
grave injustice, we perceive it very clearly, and in this sense
we can say that it is empirically verifiable. Next, we will examine the
theories about justice proposed by Aristotle and Saint Thomas.

Justice according to Aristotle.

Aristotle developed his theory of justice in the Nicomachean Ethics. He conceives justice not only
as a cradle of virtue but rather as something specific to Law, due to its alterity. It considers the
justice as a proportion, what is fair is the equidistance between much and little, the just one
medium. It distinguishes species of justice:

1. GENERAL OR UNIVERSAL JUSTICE. In this concept, justice is a total virtue, since

More than a virtue, it is the result of all virtues.

2. PRIVATE JUSTICE. Depending on the circumstances in which the general principle is played.
"equal distribution" distinguishes justice between commutative and distributive (this is not the name)
which Aristotle gives it). These are not two distinct classes of justice but are based on the
based on the different circumstances in which the general principle operates.

a) Commutative justice (Aristotle calls it corrective or rectifying). It refers to the

change of things or services when the warmth of people is not relevant at all.
It consists of the exact equivalence of the thing received and the equality in compensation.

b) Distributive justice. (Aristotle calls it proportional) The general principle works having
consider the value of people and, consequently, if people are not equal, the
True equality requires that they are not assigned equal things, but rather things proportionate to their
respective merits. This criterion is especially applicable in the distribution of burdens,
honors or rewards, which should be given according to the particular situation or merit of the
people.

Justice according to Saint Thomas Aquinas.

 Define justice as 'the habit by which with perpetual and constant will
to each is given their due right.” It accepts the division made by Aristotle, adding to justice
legal. It is considered that there are three situations that can occur regarding what is due by
someone.

The changes between individuals referred to by commutative justice.

2. The obligation owed to the individuals that constitute it, an aspect to which it refers to the
distributive justice.

3. What individuals owe to the community they are part of, legal justice.

B. Legal security. We can understand it from two points of view:

(1) The legal security provided by the law. Max Mayer conceptualizes legal security.
like "the guarantee given to the individual that his person, his property, and his rights will not be
object of violent attacks and that if this happens, they will be assured by society
protection and repair." This definition has been criticized because it is pointed out that it would be making
allusion to other values different from legal certainty such as justice, freedom, equality
etc.

Legal security as certainty of law. Most authors maintain that this

it is the correct way to understand legal security. They understand it as stability or
security of the Law itself, the certainty of the legal norms that regulate coexistence
among men.

In this regard, Radbruch points out the requirements for law to fulfill security.
legal

1- That the law is embodied in positive norms.

The law must be based on facts, which must be established with the least margin of
possible error. These facts are those of the social life of the group regulated by law. If the
Law deviates from reality, it will become less effective and thereby less secure.

3- That the law has a minimum of stability. It should not be subjected permanently.
abrupt changes as if that happens, it is almost impossible to think about legal security.
It's not that one should not adapt to social transformations; what happens is that these
changes cannot be radical and permanent.

4- That the law be made known. For legal security to exist, the norms must be
known by the subjects governed by them. The principle of publicity of laws and of
presumption of knowledge of the law (arts. 7 and 8 CC) is included in practically all
current arrangements.

Institutions that constitute an expression of legal certainty.

Presumption of knowledge of the law.

2. Principle of non-retroactivity of the law.
3. Principle of reserve or legality in criminal matters.
4. Res Judicata.
5. The prescription.

1. Presumption of knowledge of the law. This principle is established for a reason of

legal certainty, since if individuals were empowered to claim ignorance of the law, these
they could disregard certain legal duties imposed by current regulations. While this
it seems to have an absolute character, nowadays this principle has been softened in some
subjects, for example, in the criminal field, the prohibition error is accepted. In any case,
In our legal system, this principle has a strong expression in our legal framework, e.g.
Article 8 of the Civil Code, or article 706 "... but the error in matters of law constitutes a
presumption of bad faith, which does not admit evidence to the contrary," or article 1542 "the error regarding a
a point of law does not vitiate consent.

2. Principle of non-retroactivity of the law. Established in the first paragraph of art. 9, it only obliges
to the judge and not to the legislator, that yes, with the limitations established by the Constitution in the matter
penal (art. 19 no. 3) and in matters of property (art. 19 no. 24).

3. Res judicata. Res judicata is "the effect produced by judicial resolutions"

firm or executed.

Judicial resolutions are the decisions made by the judge during the course
of the process, these must be recorded in writing according to the Chilean Procedural Law.
respective file. In Chilean legislation, the following classes are distinguished
judicial resolutions (art. 158 C.P.C)

1. Final judgment: It is the one that concludes the instance, resolving the issue or matter that
has been the subject of the trial.
2. Interlocutory judgments: It is the one that rules on an incident of the trial, establishing rights.
permanent and in favor of the parties, or resolves on some procedure that should serve as a basis
in the pronouncement of a final or interlocutory judgment.

3. Auto: The resolution that pertains to an incident not covered in the previous section.

4. Decree, provision or scheduled: It is the one that does not decide on incidents or procedures that serve to
basis for the pronouncement of a sentence, is only intended to determine or arrange
the substantiation of the process.

Of all these resolutions, only the judgments have the effect of res judicata.
definitive and firm interlocutory. A judgment is firm or executed when it
it is not subject to any appeal against it for one of the following reasons:

The law itself establishes it, this is what happens with most of the court's rulings.
Supreme.

2- When, being subject to appeal, it is not filed within the period specified by the
law.

3- When the appeal was filed, it was resolved by the competent authority.
welcoming it or rejecting it.

RES JUDICATA.
 Corresponds to the person who received a favorable ruling from the
court and which translates into the power to demand compliance with what has been resolved.

EXCEPTION OF RES JUDICATA.

It is the effect of judicial resolutions that consist in that to everyone

those whom the ruling in accordance with the law benefits shall prevent definitively and
irrevocably any subsequent pronouncement whether in the same sense or in another
different from the previous one. The exception of res judicata benefits the one who takes advantage of it.
verdict, and this could be who won the trial or who lost it.

Requirements for the exception of res judicata (requirements of triple identity) are
copulative and must occur together.
Legal identity of individuals.
2. Identity of the requested thing.
3. Identity of cause of action.

4. Prescription.

Defined in art. 2492 of the Civil Code as 'a way of acquiring the
foreign things, or to extinguish the actions and rights of others, for having possessed them
things or not having exercised such actions and rights for a certain period of time
time and meeting the other legal requirements." This definition is distinguished
the acquisitive prescription and the extinctive prescription.

Relationships between justice and legal security.

It may exceptionally happen that positive laws contradict justice, this

especially in countries with arbitrary governments. For this reason, legal security comes into
contradiction with justice. Here we ask ourselves which value should prevail. The conceptions
positivists choose for legal certainty to prevail. Radbruch was of this opinion, but
after suffering from National Socialism in World War II, he turned towards positions
natural law scholars said, one had to choose justice.