法律入门：关键概念和定义
[[[法律入门：关键概念和定义]] ● 国家：职能、结构和政治制度 ● 法律的不同部门 ● 法律渊源 ● 法律的主要形成传统 ● 法律关系的要素 ● 法律的适用 ● 法律的实施 ● [瑞士从起源到20世纪的发展]] ● 瑞士的国内法律框架 ● 瑞士的国家结构、政治制度和中立 ● 19世纪末至20世纪中叶国际关系的演变 ● 世界组织 ● 欧洲组织及其与瑞士的关系 ● 基本权利的类别和世代 ● 基本权利的起源 ● 十八世纪末的权利宣言 ● 二十世纪基本权利普遍概念的构建
在对广阔的法律领域进行探索的过程中，我们将踏上一段知识之旅，探究支撑法律体系和塑造社会互动的原则和结构。这种讨论并不只是简单地从最基本的角度来定义法律，而是试图揭示法律是如何渗透和指导社会生活的基本方面的。通过研究客观法和主观法等概念，我们不仅要了解规范个人行为的规则，还要了解这些规则如何反映并影响社会价值观和结构。
我们将研究实在法及其与自然法的相互作用，这一课题揭示了成文法与普遍伦理原则之间的紧张关系和平衡。法国民法典》的例子很好地说明了正义和平等的理想曾被视为道德或哲学的范畴，是如何被纳入实在法的，反映了随着时间的推移社会观念的变化。
通过对婚姻和收养等法律制度的探讨，我们认识到法律是如何塑造人与人之间的关系，又是如何被人与人之间的关系所塑造的。这些制度不仅仅是法律协议；它们反映了社会如何看待和重视个人关系和责任。
司法程序及其状态和手段是我们讨论的另一个焦点。在这里，我们揭示了法律决定是如何做出的，强调了解释事实和适用法律规则的重要性。强制性规则和决定性规则让我们深入了解个人自由与法律约束之间的动态关系。
本次讨论不仅仅是一次学术演讲，更是对法律如何塑造人类价值观和社会互动，以及法律如何被人类价值观和社会互动所塑造的一次探索。通过更好地理解这些原则，我们不仅能获得法律知识，还能从更深的角度认识社会本身以及我们在其中的角色。
什么是法律？
法律是一整套由社会制定并强制实施的行为规则，规定了社会成员的预期行为。这些规则具有约束力，是人类互动的指南，以公平和可预测的方式调节人际关系。法律职能的核心是确保社会和谐与和平共处。法律充当调解机制，缓解和解决个人之间的冲突。法律在社会结构组织中也发挥着至关重要的作用，它不仅保护个人和集体利益，也保护和谐社会运作所必需的物品。法律是社会秩序的基本支柱，保障社会的稳定和公正。
社会中的法律
社会可以被进一步重新定义为在一个有组织的框架内共存的一组个人，他们共享共同的规范、价值观和制度。这种共存并非一成不变，而是以不断发展和演变的多种人际关系为特征。
每个社会成员都参与到与他人互动的密集网络中，形成了丰富多样的社会结构。这些互动并不只是偶尔的接触，而是构成了一系列复杂的关系，塑造着个人和集体的经历。这些关系受到文化规范、法律、信仰和经济习俗等因素的影响。
社会可以被视为一个有生命的有机体，每个成员都在维护和发展社会结构和文化方面发挥着至关重要的作用。个人之间的不断互动不仅是社会的特征，也是塑造和改造社会的动力。
社会组织、公共约束和法律秩序
在任何社会中，个人都面临着影响和限制其行为、选择和机会的一系列制约因素。这些制约因素的表现形式多种多样，反映了社会结构的复杂性和多样性。在任何社会中，法律法规都是一种主要的约束形式。这些法律规范由政府当局和其他监管机构实施，旨在确保公共秩序、安全和公正。虽然它们对维持秩序和保护公民权利至关重要，但也会限制某些个人自由，为个人的行为确定法律框架。除法律外，社会和文化规范也对个人行为产生强大影响。文化价值观、传统和期望往往决定了在一个社会中什么是可接受的，什么是不可接受的。这些规范有时会限制个性的表达，并强加符合集体期望的行为模式。经济条件是另一种重要的制约形式。财富、贫困和获得资源的机会不均等都会对个人的选择产生重大影响。这些经济制约因素会限制教育、医疗保健、体面住房和其他基本福祉方面的机会。最后，自然和地理环境也有其自身的限制。气候、地形和自然资源的获取直接影响着人们的生活方式。这些环境因素可以决定可能的经济活动类型、生活方式，甚至个人面临的挑战。这些不同形式的制约因素对于确定社会的结构和功能至关重要。它们有助于社会稳定和人类互动的可预测性，同时也塑造了社区生活的活力。公共强制是指国家当局行使的强制标准、规则和决定的合法权力。这种权力适用于所有国家机构和人员，包括政府、执法机构、司法机构和公共行政部门。这种权力的本质在于其执行法律法规的能力，从而保障公共秩序和公民安全。公共制约的概念也延伸至拥有法律承认的权利的个人或实体。在这种情况下，权利持有人有权要求尊重这一权利，必要时可诉诸国家权力。例如，在发生违法行为时，所有者可以要求主管当局介入，强制遵守法律，从而维护自己的财产权。因此，公共执法是法治的基本组成部分。它不仅确保法律得到执行，也是保护社会中个人权利和自由的机制。国家正是通过这种权力来维护秩序、正义和社会凝聚力。
法律秩序是一个复杂、综合的法律规则体系，它协调着社会内部以及国际舞台上各实体之间的关系。这一体系包含一系列规范，从一国的国内法到国际互动规则，提供了一个多层次的监管框架。这一法律秩序的核心是法治所规定的规则，并通过对不守法行为的制裁予以强化。这些规则是正义和公共秩序的基础，确保社会中的行为和互动符合公认的道德标准。例如，违反国家法律的个人可能会受到刑事制裁，这反映了运用法律约束来维护社会秩序。法律秩序涵盖国家和超国家两个层面。在国家层面，它包括宪法、议会制定的法律、行政法规和法院裁决。这些要素构成了法律框架，政府机构和公民的权利与义务都建立在此框架之上。例如，一个国家的宪法规定了政府的形式和公民的基本权利，而法律法规则详细规定了社会生活的具体方面，如劳动法或环境保护。在国际层面，法律体系由条约、国际公约和全球公认的法律原则组成。这些标准规范国家与其他国际参与者之间的关系，涵盖国际贸易、人权和人道主义法等领域。例如，《日内瓦公约》确立了战俘待遇规则，说明了国际法如何在冲突时期努力维护秩序和人道。
从整体上看，法律秩序为社会的稳定和效率提供了一个必要的结构，同时确保为和平解决冲突以及在全球范围内保护权利和自由提供一个框架。它不仅是一套规则，也是一个有生命力的体系，随着社会、经济和政治的变化而演变，反映了社会生活和国际关系的不断动态。
法律和社会秩序的作用
从本质上讲，法律是一个社会为规范其成员的行为而制定和实施的规则体系。这些规则在不同的社会可能大相径庭，但它们的共同目标是维持秩序、保护权利和财产以及促进普遍福利。制裁则是确保遵守这些规则的手段。它是对违反既定规范行为的正式回应，可以采取各种形式，如罚款、监禁或其他纪律措施。例如，如果一个人犯了盗窃罪，他或她不仅违反了道德规范，也违反了法律规则。针对这种违法行为，社会的法律制度可能会施加制裁，如监禁，以惩罚违法者，并阻止其他人实施类似行为。这种对违禁行为的压制有助于维护社会秩序，增强人们对法律制度的信心。因此，惩罚违法行为的制裁措施是任何社会保持凝聚力和稳定的关键因素。它反映了在个人自由和集体利益之间保持平衡的必要性，确保一些人的权利和自由不会被另一些人的行为压垮。
国家在确保社会正常运转方面发挥着至关重要的作用，这项任务涉及在中央政府机构的领导下建立和维护纪律规则。这一责任基于几项基本职能。首先，国家负责制定并执行规则和规范，以界定社会中的适当行为和互动。这些规则通常以法律法规的形式正式确定下来，其作用是防止混乱，促进安全有序的环境。这些规则的清晰度和准确性至关重要。定义明确、易于理解的法律使公民能够清楚地认识到自己的权利和义务，从而促进对这些规范的遵守，减少误解或冲突的风险。国家的权威体现在其执行这些法律的权力上。这包括由警察维护公共秩序，由法院审判和惩罚犯罪，以及执行判决。例如，在违反道路交通法的情况下，警察有权进行干预，违法者可能会受到罚款等处罚，严重者可能会被判处监禁。此外，国家有义务定期调整和更新法律框架，以反映社会、经济和技术的变化。这种适应性对于应对新出现的挑战和满足不断变化的社会需求至关重要。例如，随着互联网和数字技术的出现，许多国家都制定了新的法律来规范在线活动、保护个人数据和打击网络犯罪。这样，通过建立法律和监管框架并确保其得到执行，国家确保了社会的秩序和安全。这些行动不仅有助于维护和平与社会凝聚力，还有助于社会的发展和全面繁荣。
法律在促进社会和平共处方面发挥着根本性作用。作为一个法律规则和规范体系，法律发挥着规范个人之间互动的基本框架的作用，从而确保社会和谐稳定。法律的主要功能之一是缓和人际关系。为此，法律界定了可接受的行为，并规定了不可接受行为的后果。例如，民法确定了契约和家庭关系中的权利和义务，而刑法则规定了对盗窃或暴力等有害行为的惩罚。通过提供解决冲突和处理违法行为的系统方法，法律有助于防止混乱和促进正义。法律还是社会秩序的基础。它创建了一个框架，使经济、政治和社会活动能够以有序和可预测的方式进行。通过制定明确的规则并确保这些规则得到执行，法律促进了合作与互信，而这对任何社会的平稳运行都至关重要。因此，法律不仅仅是一套规则和条例，它还是社会结构的重要组成部分，在维护和平与秩序方面发挥着关键作用，使人们能够富有成效地和谐共处。
法律的主要目的是组织社会和保护国家利益，但更根本的目的是保障个人权利和自由。"我仍然不知道什么是法律，但我现在知道什么是没有法律的国家"。维德尔提到的历史经历，即 1944 年从集中营解放出来的囚犯抵达里昂车站的经历，突出表明了一个不尊重法律原则的国家的悲惨后果。在这种情况下，缺乏适当的法律结构和保护措施就为滥用权力、压迫和大规模侵犯人权开辟了道路。第二次世界大战时期和集中营的恐怖也许是最黑暗、最令人痛心的例子，说明了国家在不受法律约束或指导的情况下行事会发生什么。因此，Vedel 的观点有力地说明了建立一个强大的、受人尊重的法律体系的必要性。理想形式的法律必须发挥保障作用，防止专横和滥用权力，同时组织社会、政治和经济结构。在任何社会中，法律对于建立和维护秩序、正义和自由都至关重要。因此，维德尔强调的历史经验雄辩地提醒我们，法律作为社会秩序的支柱和个人基本权利的保护者，发挥着根本性的作用。
广义上的社会秩序是一个复杂的结构，它确保社会的凝聚力与和谐运作。它建立在一些基本支柱之上，这些支柱共同使社会繁荣昌盛并适应变化。这种社会秩序的核心是一个结构化的组织，它为社会提供了一个框架。这种组织有多种形式，包括政府、法律、教育和其他社会机构，这些机构确定了社区生活的规则。这些机构负责制定规范个人和群体间互动的准则和法律，从而确保社会关系的秩序和可预见性。社会秩序的一个关键要素是指导和监督这些机构运作的权威。这种权威，无论是政治权威、法律权威还是其他权威，都在执行法律和政策以及指导公共事务方面发挥着至关重要的作用。权力机构确保法律得到遵守，所做决定符合普遍利益。社会秩序还必须确保其成员的物质和智力生计。这意味着不仅要满足基本的物质需求，如食物、住房和健康，还要促进教育、文化和信息的获取。通过满足这些基本需求，社会秩序有助于个人的福祉和成就。社会秩序的另一个基本方面是其在不同利益之间保持平衡的能力。在任何社会中，不同群体和个人都有不同的需求、愿望和观点，这可能导致冲突。社会秩序通过其机构和程序，通过谈判、调解和实施公平的政策，努力协调这些对立的利益。最后，社会秩序必须不断调整。社会是动态的；随着时间的推移，社会风气、价值观、技术和环境条件都会发生变化。一个有效的社会秩序必须能够适应这些变化，修订其法律、政策和结构，以应对新的挑战和机遇。简而言之，社会秩序是一个复杂、多维的系统，在构建社会方面发挥着重要作用。它通过满足基本需求、管理不同利益和适应社会的不断变化来确保社会的凝聚力。
法律 "一词的多种含义
The word "law", derived from the Low Latin "directum", suggests the idea of something that is direct or straight, as opposed to something that is tortuous or devious. This etymological origin clearly illustrates the concept of law as a clear and straightforward path to justice and fairness. From this perspective, the law is seen as a reliable and upright guide that steers individuals and society towards just and appropriate behaviour, and away from fraud, corruption and injustice. The term 'juridical', on the other hand, refers to everything that belongs to the law, or 'ius' in Latin. "Ius" derives from the Latin verb "iubere", meaning "to order". This root underlines the authority inherent in law - it is not simply a set of suggestions or advice, but rather a body of commands and obligations that govern the conduct of individuals and institutions. Moreover, 'iustus', meaning 'the just', is the origin of the word 'iusticia', meaning 'justice'. This highlights the intrinsic relationship between law and justice. The law is thus conceived as a tool in the service of justice, aimed at ensuring that each individual receives what is due to him or her and that decisions and actions are taken in a fair and balanced manner. These terms therefore reflect the founding principles of many legal systems: the idea that the law should lead to right, just and orderly actions, and that justice is the ultimate goal of all legal rules and regulations.
Objective law refers to the set of rules of conduct established by a society and binding on its members. These rules are characterised by their socially enacted and sanctioned nature, which means that they are created by recognised institutions (such as the legislature or the regulatory authority) and are subject to sanctions in the event of non-compliance. These rules of conduct encompass a wide range of norms, including laws, regulations, decrees and case law, which govern interactions within society. Their purpose is to maintain order, protect the rights and freedoms of individuals, regulate relations between people and institutions, and promote the general welfare. The term "Law" corresponds to this notion of objective law. It refers to the set of rules that are applied in a given jurisdiction. This notion encompasses not only written laws, but also the principles and practices that are recognised and applied by the courts. Objective law forms the legal structure on which society is based. It is essential to ensure social cohesion, fairness in the treatment of individuals, and predictability of the legal consequences of various actions and interactions within the community.
A subjective right is a faculty or power granted to an individual or group by objective law. This prerogative enables its holder to act in a certain way, to require certain conduct from others, or to prohibit certain actions, generally in his own interest or sometimes in the interest of others. These subjective rights can take different forms, such as property rights, contractual rights, or fundamental rights such as the right to freedom of expression or the right to privacy. For example, a property right allows its holder to enjoy and dispose of his property as he wishes, within the framework set by objective law. Similarly, in a contract, one party acquires the right to require the other party to perform certain agreed actions. The concept of "right" in English corresponds to the droit subjectif in French. It refers to a claim or interest legitimised by objective law. These "rights" can be protected or enforced through the legal system, and their violation can lead to reparation or sanctions. Subjective law is therefore a personal and individualised aspect of law, embodying the way in which objective law is translated into concrete prerogatives for individuals and groups. It is fundamental to the protection of individual interests and the achievement of justice in society.
Positive law encompasses all the legal rules that are effectively in force at a given time in a given society, be it a national entity or the international community. The term refers to the law as it is "laid down" or established, i.e. the law as it is actually formulated, adopted and applied. Positive law includes both objective and subjective law. As objective law, it includes laws, regulations, decrees and other legal norms enacted by the competent authorities. These rules define the general legal framework within which individuals and organisations must operate. For example, a country's civil code or criminal code are expressions of positive law as objective law. As subjective law, positive law also manifests itself in the rights and prerogatives granted to individuals or groups. These subjective rights are recognised and protected by positive law. For example, the right to property or the right to a fair trial are aspects of positive law that concern individual rights. Positive law is therefore the law that is actually applied and recognised in a given jurisdiction. It is distinct from "natural law", which is based on theoretical notions of justice and morality, and from "ideal law", which represents the law as it should be in an ideal society. Positive law is a dynamic concept, evolving with legislative changes, judicial decisions and social transformations. It is the concrete manifestation of law in the everyday life of societies.
Natural law is seen as a set of principles and values that transcend positive law. These principles are supposed to derive from human nature, reason or a higher moral order, and serve as the basis for the conception of justice and equity. Natural law is often associated with notions of ideal justice and moral duty. Unlike positive law, which is the law as established and applied in a given society, natural law is considered to be universal and immutable. It is not written down in legal texts, but is seen as inherent in the human condition or derived from human reason. The principles of natural law often serve as inspiration for the creation and interpretation of positive law. They are invoked to evaluate or criticise existing laws and to guide the drafting of new laws. For example, concepts such as the fundamental equality of all human beings or the right to liberty are ideas derived from natural law that have influenced many laws throughout the world. Because of its abstract nature and generality, natural law is often used as a reference for judging the correctness or legitimacy of positive laws. Throughout history, natural law has been invoked to challenge and change laws and practices deemed iniquitous or oppressive, such as slavery, segregation or the deprivation of civil rights. Natural law is concerned with universal moral and ethical principles. It represents an ideal of justice towards which positive law tends and provides a framework for evaluating and improving existing legal systems.
The French Civil Code of 1804, also known as the Napoleonic Code, was a major step in the consolidation of law in France after the French Revolution, representing a significant effort to unify and systematise civil law across the country. The French Civil Code was conceived with the objective of creating a body of civil law that would be uniformly applicable to all French citizens, regardless of the region in which they resided. Prior to the adoption of the Code, France was governed by a multitude of local laws and regional customs, which made the legal system complex and inconsistent. The Civil Code introduced a more uniform and centralised legal system, which contributed to the legal and administrative unification of France.
Article 1 of the Civil Code was particularly noteworthy, as it stated the existence of a "universal and immutable law", considered to be the source of all positive laws. This formulation reflected the influence of natural law ideas, emphasising the idea that positive laws should be based on principles of natural reason that govern human relationships. This meant an implicit recognition that the laws enacted should be in harmony with certain universal and rational principles, a concept that has profoundly influenced modern legal thought. The Civil Code had a considerable influence not only in France, but also in many other countries, where it served as a model for the reform and development of legal systems. It marked a decisive stage in the history of law, emphasising the codification of civil laws and the importance of universal and rational principles in the development of law.
The French Civil Code had a considerable and lasting impact, not only in France but also in many other parts of Europe, particularly those under French influence or domination in the early 19th century. Although the original title, which evoked the idea of universal and immutable law, was not retained in the final version of the Civil Code, the influence of its principles and structure on European law was profound. During the Napoleonic era, France extended its influence far beyond its traditional borders, bringing the Civil Code with it to occupied or annexed territories. For example, when Geneva became the prefecture of the Department of Lake Geneva, it was under French administration, so the French Civil Code also applied to the people of Geneva. This adoption of the Civil Code outside metropolitan France illustrates the spread of French legal ideas across Europe. As for Jura, which had been annexed by France, it retained the Civil Code even after becoming part of the Swiss canton of Berne. This fact testifies to the enduring adherence to certain legal principles and structures introduced by the Code, even after the end of French rule. The adoption and persistence of the Civil Code in these regions demonstrates its significant influence as a tool for legal modernisation and unification. The Napoleonic Code served as a model for civil law reform in many European countries and had a lasting impact on the conception and practice of law in the Western world.
For positivists, the law is strictly defined by the laws and regulations that have been officially established and adopted by the competent authorities. According to this view, only those norms and rules that form part of the corpus of positive law have binding force and can legitimately influence judicial decisions. In positivist thinking, concepts of natural law or moral principles have no binding legal status in themselves, unless they are explicitly incorporated into positive law. This means that for a judge, lawyer, legislator or any other jurist, the application of the law is limited to legal texts and official regulations. Notions of justice, equity or morality that are not formalised in these texts have no legal weight in the decision-making process.
This approach emphasises a clear separation between law and morality, considering that the role of the legal system is not to interpret or apply abstract moral principles, but rather to apply the law as written. For positivists, the authority of the law derives from its formal adoption by recognised institutions, not from its conformity with external moral or natural principles. This perspective has significant implications for the practice of law. It limits the role of the judge to the interpretation and application of existing laws, without recourse to considerations external to positive law. Although this approach has its critics, notably those who argue that the law should be informed by moral or ethical considerations, it remains a cornerstone of legal thinking in many legal systems around the world.
An important development in the evolution of the law in recent decades is the incorporation of principles once considered to be natural law, such as liberty and equality, into positive law through constitutions and legislation. This phenomenon reflects a worldwide trend whereby universal values and principles are becoming codified and officially recognised in national legal systems. 150 years ago, concepts such as freedom and equality were often seen as moral or philosophical ideals rather than legally protected rights. However, over time, the growing recognition of the importance of these principles for a just and equitable society has led to their gradual incorporation into the framework of positive law. This has often happened through constitutional amendments or new legislation.
The inclusion of these principles in modern constitutions means that they have acquired binding legal force. For example, the 1948 Universal Declaration of Human Rights was an important milestone in this development, setting international human rights standards that were subsequently adopted in many national laws. Today, principles such as non-discrimination, the right to freedom of expression and the right to a fair trial are considered fundamental components of many legal systems. This development illustrates how societies and their legal systems adapt and change in response to evolving values and moral requirements. It also marks the diminishing of the traditional separation between natural law and positive law, with a growing recognition that moral and ethical principles can and should play a role in the formation of formal law.
It is important to understand and differentiate between positive law and natural law, two fundamental concepts in legal theory. Positive law refers to laws and regulations that are officially established and adopted by legislative and governmental authorities. These are norms that are formulated in concrete terms, enshrined in legal texts and applied by the judicial system. Positive law is specific to each society and may evolve over time, reflecting changes in society's values, needs and circumstances. Natural law, on the other hand, is based on principles that are considered universal and immutable, often linked to morality, ethics or notions of ideal justice. Natural law is not written down in specific legislative texts, but is rather seen as inherent in human nature or derived from human reason. Proponents of natural law argue that certain moral truths or principles should guide the creation and application of laws. It is crucial to understand the interaction between these two types of law. Historically, natural law has often been used as a basis for criticising or reforming positive law, particularly when existing laws are perceived to be unjust or outdated. Similarly, positive law, by drawing on the principles of natural law, can evolve to better reflect the ideals of justice and equality. In modern legal practice, there is often a dialogue between natural law and positive law, with universal principles influencing the drafting and interpretation of laws. Understanding this dynamic is essential for those who study law, work in the legal field, or are interested in how laws affect and are affected by notions of justice and ethics.
The rule of law
The rule of law, or legal rule, is a fundamental element of the legal system, acting as a norm that guides and regulates the conduct of individuals in their social interactions. These rules are characterised by their generality, abstraction and binding nature, and are supported by the sanctioning power of the state. As general norms, they apply to a wide range of situations and are not limited to specific cases or particular individuals. Their abstraction means that they deal with general situations or patterns of behaviour, rather than specific details. The mandatory aspect of the rule of law is one of its most important attributes. Breach of these rules can result in sanctions, which are enforced by public authorities such as courts and law enforcement agencies. This means that the rules of law are not mere recommendations, but directives that must be complied with on pain of legal consequences.
As far as the law is concerned, it is a set of rules of law, often formulated and adopted by a legislative body, such as a parliament. The law is a formal expression of these rules and serves as a detailed guide to acceptable behaviour in society. It covers a variety of areas, from civil law, which governs relationships between individuals, to criminal law, which deals with crimes and penalties. Laws establish clear and precise standards that individuals and organisations must follow, and they play a crucial role in maintaining order and justice in society.
The importance of the rule of law and the law lies in their ability to structure and stabilise social, economic and political interactions. They ensure a degree of predictability and fairness in society, enabling individuals to understand the consequences of their actions and to plan accordingly. They also serve to protect the rights and freedoms of individuals, by setting limits on what is permissible and providing mechanisms for resolving conflicts. Ultimately, rules of law and legislation are essential for an organised and functional society, where justice and order are maintained.
The distinction between public and private law
Mandatory, general and abstract
The mandatory nature of legal rules is a fundamental element that is evident in any legal system. This characteristic means that the rules of law are not mere suggestions or advice, but imperative standards with which individuals and organisations are legally bound to comply. Failure to comply with these rules entails legal consequences, such as sanctions, penalties or other forms of legal redress. This binding nature is ensured by public authorities, in particular the judiciary and law enforcement agencies. The courts play a crucial role in interpreting laws and determining penalties for violations. The police are responsible for enforcing the law and maintaining public order. Legal obligation is a principle that distinguishes the law from other systems of norms, such as moral rules or social conventions. While the latter can influence behaviour, they do not have the same binding force as laws. For example, a moral rule may dictate ethical behaviour, but its violation does not generally result in legal sanctions. On the other hand, the violation of a law entails consequences that are legally defined and applied by the State. This obligation is essential to ensure order and stability in society. It ensures that individuals and institutions abide by an agreed set of rules, thereby facilitating cooperation, predictability and fairness in social relations. In short, the binding nature of legal rules is a pillar that underpins the structure and functioning of any organised and just society.
The general nature of legal rules is another essential feature that contributes to their effectiveness and fairness. This generality means that legal rules apply to an indefinite number of people and a multitude of situations, without any specific or personal distinction. Unlike decisions that are addressed to specific individuals or groups, legal rules are formulated to cover general categories of behaviour or situations. For example, a law prohibiting theft applies to all members of society, regardless of their personal status, profession or any other individual characteristic. This universality ensures that the rules of law are impartial and fair, applying in the same way to all those in similar circumstances. This generality is fundamental to ensuring equality before the law, a basic principle in many legal systems. It enables laws to serve as instruments of justice and public order, establishing clear and uniform standards for the conduct of individuals and institutions. It also contributes to the predictability and stability of the legal system, because individuals can understand and anticipate the legal consequences of their actions. The general nature of legal rules is a key element in ensuring the impartiality and effectiveness of the legal system, thereby helping to maintain order and justice in a society.
The abstract nature of legal rules is an essential feature that enables them to cover a wide range of situations. This abstraction means that legal rules are not formulated for specific circumstances or cases, but rather are designed to apply to any number of situations that might arise. This abstract quality is crucial because it gives rules of law the flexibility to be applicable in a variety of different contexts, without needing to be constantly modified or adapted. For example, a law that prohibits intentionally causing harm to others is sufficiently abstract to cover many types of harmful behaviour, without having to list every specific act that might constitute harm. Abstraction also allows the courts to interpret and apply the law consistently in a multitude of different situations. This helps to ensure that similar cases are treated in similar ways, contributing to the fairness and predictability of the legal system. In addition, it allows the law to adapt to developments and changes in society without the need to constantly rewrite laws. The abstract nature of legal rules is fundamental to their effectiveness and long-term relevance. It allows the legal system to encompass a wide range of behaviours and situations, while maintaining fairness and justice in its application.
Coercive nature: implies constraint
A fundamental aspect of legal rules is the presence of a sanction guaranteed by public authority. This feature distinguishes legal rules from other types of social norms, such as moral rules or conventions. Sanction in the legal context refers to a legal consequence or penalty imposed in response to the violation of a rule of law. Sanctions can take various forms, such as fines, prison sentences, reparation orders or other disciplinary measures. The role of sanctions is not only to punish offences, but also to deter future illegal behaviour and maintain social order. The public authority, or public power, plays a crucial role in ensuring and applying these sanctions. State bodies, such as the courts, the police and the various administrative agencies, function as the instruments by which the rules of law are applied and sanctions imposed. These bodies ensure compliance with the law, deal with offences and implement judicial decisions. The courts, in particular, play a central role in this process. They interpret the law, adjudicate on offences and determine the appropriate penalties. The police, for their part, are responsible for enforcing the law and maintaining public order, including the arrest and detention of offenders. The guarantee of a sanction by the public authority is a key element that gives the rules of law their strength and effectiveness. It ensures that the legal system is respected and followed, and that offences are dealt with appropriately, thereby contributing to stability and justice within society.
In most modern legal systems, including Switzerland, legal rules are distinct from religious rules. Contemporary legal systems are generally based on principles of positive law, which are established and applied independently of religious doctrines or prescriptions. However, it is true that certain rules or principles stemming from religious traditions have influenced or found their way into the positive law of many countries, including Switzerland. For example, the commandment "Thou shalt not kill", derived from many religious texts, is reflected in criminal laws that prohibit murder. This incorporation is not so much a question of religious authority over the law, but rather a coincidence whereby certain universally recognised moral standards, present in many religious traditions, coincide with the principles of justice and public order considered essential in secular law.
It is important to note that when such rules are incorporated into positive law, they do so not as religious doctrines, but as autonomous legal norms justified by secular considerations of public order, security and social welfare. Their validity and application do not depend on their religious origin, but on their formal incorporation into the legislative framework and their conformity with the general principles of law. Although modern legal systems and positive law operate independently of religious rules, there are cases where certain moral standards common to several religious traditions are incorporated into positive law. However, these norms are applied as secular laws, reflecting universal values rather than specific religious prescriptions.
Article 111 of the Swiss Penal Code is a perfect example of how an ethical norm, often found in various religious and moral traditions, is incorporated into positive law in the form of secular law. Article 111 of the Swiss Penal Code clearly stipulates the legal consequences of murder, thus defining a clear legal prohibition on intentionally killing another person. This legal provision reflects a principle widely recognised in many cultures and societies, namely that murder is a serious transgression against the individual and society. However, in the context of positive law, this prohibition is formulated and applied independently of any religious considerations.
The Swiss Penal Code, like other legal systems, bases its laws on principles of justice, public order and the protection of individual rights. By establishing penalties for offences such as murder, it seeks to prevent criminal acts, protect citizens and maintain social order. The emphasis is on protecting human life and deterring behaviour that is dangerous to society. This example shows how positive law can incorporate principles that are also valued in religious and moral traditions, but does so within the framework of a secular legal system, with justifications and applications centred on the needs and values of civil society.
The elements of a rule of law
Legal institutions are fundamental elements in the organisation of social relations in any society. They are made up of coherent sets of legal rules designed to structure specific aspects of human interaction. These institutions provide a legal framework that clearly defines the rights, obligations and procedures relating to these interactions, reflecting social values and needs.
Take the example of marriage, which is a central legal institution in many societies. As an institution, marriage is governed by laws that determine how two people can legally come together and what the legal consequences of this union are. These laws cover aspects such as the conditions under which a marriage is valid, the mutual responsibilities of the spouses, the management of joint property, and procedures in the event of separation or divorce. These regulations aim to ensure a balance between individual rights and collective interests, while protecting the parties involved, particularly in situations of breakdown or conflict.
Similarly, adoption is a legal institution that makes it possible to create legal ties of kinship between individuals who are not biologically related. The rules governing adoption are designed to ensure the welfare and protection of adopted children. They define the eligibility criteria for adopters, the procedures to be followed for adoption, and the legal effects of adoption on family relationships. The aim is to provide a stable and loving family environment for the child, while respecting his or her rights and those of his or her biological and adoptive parents.
These institutions, such as marriage and adoption, illustrate how the law can influence and shape fundamental social structures. By providing a detailed and structured legal framework, they contribute to social stability and respect for the rights and duties of individuals within society. Their evolution over time also reflects changes in social attitudes and norms, showing how the law adapts to meet society's changing needs.
The state of affairs
The state of affairs refers to the concrete facts or circumstances that form the basis of a legal situation or dispute. It serves as the basis for the application of the law and for judicial decisions. In the application of a rule of law, the state of facts acts as a conditional proposition that determines when and how the rule should be applied. This means that the rule of law only applies if certain factual conditions, described in the state of facts, are met. For example, in a theft case, the statement of fact will detail the circumstances of the theft, such as where, when and how the act was committed. These details are essential to determine whether the facts meet the legal criteria defining theft and to decide on the appropriate application of the law.
In the context of a judgment, the statement of facts of a case comprises a complete and chronological statement of the relevant facts. It includes the identification of the parties involved, a description of the events leading up to the dispute, the key stages of the legal proceedings, and the claims or conclusions of each party. This factual exposition is crucial as it provides the framework within which the judge or court will assess the case, interpret the applicable law, and reach a decision. The accuracy and completeness of the statement of facts is therefore essential to ensure a fair and informed decision. The state of facts plays a fundamental role both in the application of the rules of law and in the judging process. It ensures that legal decisions are taken on the basis of a clear and detailed understanding of the specific facts of each case, thus guaranteeing the adequacy and fairness of the application of the law.
The example of "he who intentionally kills" is a good illustration of how a specific state of affairs can determine the application of a rule of law. In this case, the state of affairs concerns the intentional act of killing another person. In the legal context, this sentence would indicate the factual conditions necessary for the application of a criminal law relating to murder. For an individual to be tried under this law, it must be established that the act of killing was carried out intentionally. In other words, intent (or 'mens rea' in legal terms) is a crucial element of the state of facts that must be proved for a murder conviction to proceed.
In a murder trial, for example, the court will examine the evidence and circumstances surrounding the case to determine whether the accused acted with intent to kill. This includes examining the accused's actions, his state of mind at the time, and any other relevant factors that may shed light on his intentions. If the intention to kill is proven, then the state of affairs corresponds to the rule of law applicable to murder, and the court can proceed to apply the appropriate sanction. This example illustrates how the state of facts serves as the basis for the application of legal rules, underlining the importance of detailed factual analysis in the judicial decision-making process.
The operative part
The operative part is an essential component of a court judgment or decision, setting out the legal conclusion of the case. It clearly states the legal effect of the court's decision, indicating the specific actions that the parties must take or avoid as a result of the judgment. This part of the judgment is crucial because it determines the practical implications and legal consequences for the parties involved. In a dispositif, the court may pronounce different forms of legal effect. It may issue a prohibition, preventing a party from carrying out certain actions. For example, in a case of copyright infringement, the writ may prohibit the defendant from continuing to use the protected content. In addition, the device may impose an obligation to do, requiring a party to perform a specific action. This is common in contractual disputes where the court orders a party to perform its contractual obligations. Alternatively, the device may impose an obligation not to do certain things, such as stopping an activity that causes a nuisance to others. The role of the arrangement is not limited to simply stating these obligations or prohibitions. It has binding legal authority, meaning that the parties are legally obliged to comply with its terms. In the event of non-compliance, sanctions may be applied or enforcement measures taken to ensure compliance. In this way, the mechanism plays a decisive role in the effective implementation of justice, translating the court's legal conclusions into concrete, enforceable actions.
The example of who "shall be deprived of a custodial sentence of not less than 5 years", illustrates a type of device that might be found in a court decision, specifying the penalty imposed on a person found guilty of an offence. However, there seems to be a slight error in the wording. Normally, in the legal context, a disposition would state that the person is "sentenced to a custodial sentence of at least 5 years". In this case, the provision clearly indicates that the penalty for the offence committed is a prison sentence of at least five years. This means that, following sentencing, the convicted individual will be required by law to serve a prison sentence for the specified period. This type of device is typical in criminal cases where the court determines the appropriate sentence based on the seriousness of the offence and other relevant factors relating to the case. This device translates the court's decision into concrete action, indicating how the law should be applied in that particular case. The sentencing specification reflects the application of the rule of law to the established state of facts, demonstrating how justice is dispensed in individual cases in accordance with established norms and laws.
The dispositif is also the part of a judgment that contains the court's actual decision. This is the section where the court explicitly rules on the claims or submissions of the parties involved in the case. In the operative part, the court summarises its decisions on the main issues in dispute. For example, in a civil case, this may include decisions on claims for damages, the performance of a contract, or liability in an accident. In a criminal case, the operative part will contain the court's decision as to the guilt or innocence of the accused and set out the penalties or sanctions, if any. This part of the judgment is crucial because it determines the outcome of the case and the legal consequences for the parties. It must be clear and precise, because it is on the basis of the operative part that enforcement or appeal actions are taken. It is also this part of the judgment that is legally binding and can be enforced by the force of law. The operative part, as the formal legal conclusion of the case, represents the concrete application of the rules of law to the facts established during the trial. It reflects the way in which the court has interpreted the law and taken into account the evidence and arguments presented by the parties. In short, the operative part is the heart of the judicial decision, translating the court's deliberations and legal reasoning into a final and enforceable conclusion.
Dispositive, suppletive or declarative rules
Dispositive rules (also known as suppletive or declaratory rules) capture an important aspect of civil law. These rules are those that apply in the absence of stipulations to the contrary by the parties concerned in their agreements or contracts.
Dispositive rules function as a frame of reference or default standard. They come into play when the parties to an agreement have not expressed a contrary will or drafted their own clauses to specifically govern their relationship or situation. In other words, these rules offer a standard legal solution that applies automatically, unless the parties have agreed a different arrangement. A classic example of a dispositive rule is the rules governing the distribution of property in the event of the dissolution of a company or marriage without a pre-established contract. If the parties have not drawn up a specific agreement on how to divide the assets, the dispositive rules laid down by law will apply.
These rules are essential because they provide legal certainty and predictability in situations where the parties have not drawn up specific agreements. They also allow a degree of flexibility in the regulation of private affairs, giving parties the freedom to determine their own arrangements while providing a legal safety net in the absence of agreement. Dispositive rules act as a filler, filling in gaps where the parties have not expressed any particular will. In this way, they enable transactions and legal relationships to function smoothly, while providing a basic framework for situations not regulated by private agreements.
Peremptory rules
Peremptory rules are legal norms that apply absolutely and unconditionally to all persons falling within their scope. They are designed to be incontestable and cannot be modified by individual agreements or wishes. Unlike dispositive rules, which allow parties to agree their own terms as long as they do not run counter to the rules, mandatory rules leave no room for such private negotiations or arrangements. They are established to protect interests deemed fundamental by society, such as public order, morality, safety and fundamental rights.
For example, in the field of labour law, there are mandatory rules concerning minimum wages, maximum working hours and safety conditions in the workplace. These rules are designed to protect workers against exploitation and dangerous working conditions, and cannot be changed by agreement between employer and employee. Similarly, in family law, certain rules relating to filiation, adoption and marriage are mandatory. They guarantee respect for fundamental rights and the protection of the most vulnerable parties, such as children. Imperative rules are therefore essential to ensure fairness, justice and the protection of vital interests in society. They represent the fundamental values and principles on which the legal order is based and serve as an essential guide in the application and interpretation of laws.