Practice 8 Questionnaire PDF

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PRACTICE 8...

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QUESTIONNAIRE FOR PRACTICE 8 (18TH Novermber) 1) According to Von Wright’s text (Extract 1): 

Which are the components of a norm? The components of a norm are the character, the content, the condition of application, the authority, the subject(s), and the occasion.

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In which sense can a permission have the character of a prescription? The character of a prescription depends on whether the norm states a certain behaviour as something that is ought to be done or may or must not be or be done. If it is to the effect that something may be done, we call it a permission, and in this sense it has the same character as a prescription.

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Looking at the following rules, Identify their components: -

Art. 22.5 CE: “Secret and paramilitary associations are prohibited”.

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Art. 31.5 CE: “Everyone shall contribute to sustain public expenditure according to their economic capacity, through a fair tax system based on the principles of equality and progressive taxation, which in no case shall be of a confiscatory scope”.

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Art. 1458 CC: “The spouses may reciprocally sell property to one another”.

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Art. 660 CC: “The person who succeeds pursuant to universal title shall be called heir, and the person who succeeds pursuant to specific title shall be called legatee”.

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Art. 688, par. 2º CC: “In order to be valid, this will must be written out in full and signed by the testator, with expression of the year, month and day on which it is made”.

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Art. 40.1 CE: “The public authorities shall promote favourable conditions for social and economic progress and for a more equitable distribution of regional and personal income within the framework of a policy of economic stability. They shall in particular carry out a policy aimed at full employment”.

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Art. 1577, par 1º CC: “The lease of a rural plot of land, where its term should not have been set, shall be deemed to have been made for the whole time necessary to harvest the fruits given by the whole property in a year or those which it may produce in a single time, even if it takes two or more years to obtain”.

2) According to Kelsen’s and Rousseau’s texts (Extracts 2 & 3): 

What is the difference between these two authors regarding the generality of the law?

According to Rousseau´s opinion law considers subjects and citizens collectively, and does not focus on particular actions or concrete individuals, but on abstract actions. It wont be part of the legislative power any function related to individuals itself. Nevertheless, Kelsen´s statement is totally different as he affirms that there is no justification why only general norms must be considered as law. Indeed, concrete norms shall be included as well. Laws are valid In particularly cases and actions and sometimes need to be applied and obeyed only once. 3) According to Hart’s text (Extract 4): 

What is the difference between primary and secondary norms?

A simple form of social control in any nowadays society must prove defective without oficial rules and will require supplementation in different ways. The remedy for tackling these defects would be the supplementation of both primary and secondary rules which are of different kind.

Regarding the differences between primary and secondary rules, some authors focuse on the differences found in their structure while others like Hart focuse on the function permformed by these rules. According to Hart´s opinion, the difference is that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. Primary rules are those whose structure is an anlawful behaviour and a sanction attributed to it; whereas secondary rules are absolutely superfluous and irrelevant, because they depend absoluely on primary rules (genuine legal rules); that means that thet secondary rules state human behaviours but they do not contain a sanction.

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What sort of secondary norms are introduced by Hart? What is the function of each of them? These rules can belong to main 3 categories: Rule of recognition (solve problems of uncertainty) / rule of change ( solve problems of the static character of primary rules)/ rules of adjudication( solve the problem of the inefficiency of primary rules diffused social pressure).

4) According to Dworkin’s Text (Extract 5): 

What are the differences between rules and principles? There is a logical distinction between them, as they differ in the character of the direction they give. Rules are applicable in an all-or-nothing fashion (it is either valid or invalid). A rule may also have exceptions. On the other hand principles states a reason that argues in one direction, but does not necessitate a particular decision, and counter-instances are not treated as exceptions, contrary to rules, but rather as an extension of the content of such principle. Another difference is that principles have a dimension of weight or importance, as when principles intersect, instead of one being valid and the other invalid, both are considered valid and thus it is necessary to weight which one may be more important.

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Do you consider this distinction accurate? Justify your answer I personally think these distinctions are accurate, for example, regarding the dimension of weight or importance found is related to the idea that principles are valid because of their morality, not because of the positivist criterion of validity, which is a very significant distinction between rules and principles.

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Which of the following norms do you consider a rule and which ones a principle? Explain your answer: -

Art. 14 CE: “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance”. PRINCIPLE

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Art. 4 CE: “The flag of Spain consists of three horizontal stripes: red, yellow and red, the yellow stripe being twice as wide as each red stripe”. RULE

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Art. 1094 CC: “The person obliged to give something is also obliged to preserve it with the diligence of an orderly paterfamilias”. PRINCIPLE

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Art. 3.2 CC: “Equity must be taken into account in applying rules, but the resolutions of the Courts may only be based exclusively on equity when the law expressly allows this. RULE

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Art. 9.1 CE: “Citizens and public authorities are bound by the Constitution and all other legal provisions”. RULE

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Art. 86 CC: “Divorce shall be decreed by the court, whatever the form of performance of the marriage, at the request of one of the spouses, of both or of one with the consent of the other, when the requirements and circumstances of article 81 are met”. RULE

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Art. 44.1 CE: “The public authorities shall promote and watch over access to culture, to which all are entitled”. PRINCIPLE

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Art. 47 CE: “All Spaniards have the right to enjoy decent and adequate housing. The public authorities shall promote the necessary conditions and establish appropriate standards in order to make this right effective, regulating land use in accordance with the general interest in order to prevent speculation. The community shall have a share in the benefits accruing from the town-planning policies of public bodies”. PRINCIPLE

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Art. 45.1 CE: “Everyone has the right to enjoy an environment suitable for the development of the person, as well as the duty to preserve it”. PRINCIPLE

5) According to Hart’s text (Extract 6): 

What is the rule of recognition? The rule of recognition provides a criterion for the assessment of the validity of other norms-rules. It defines a common validity that should be applied to the rules of a legal system.

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What is the foundation of its validity? “Some writers, who have emphasized the legal ultimacy of the rule of recognition, have expressed this by saying that, whereas the legal validity of other rules of the system can be demonstrated by reference to it, its own validity cannot be demonstrated but is 'assumed' or 'postulated' or is a 'hypothesis'.” “However, be seriously misleading. Statements of legal validity made about particular rules in the day-to-day life of a legal system whether by judges, lawyers, or ordinary citizens do indeed carry with them certain presuppositions.” “No such question can arise as to the validity of the very rule of recognition which provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this way.” The existence and valifity of the law of recognition is a matter of fact. It is assumed by the courts, officials and private persons in order to identify the law by a certain criteria.

6) Which canons to solve antinomies may be founded in each of the following rules? -

Art. 1.2 CC: “Any provisions which contradict another of higher rank shall be invalid”. HIERARCHICAL CANON

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Art. 2.2 CC: “Statutes may only be repealed by subsequent statutes. Such repeal shall have the scope expressly provided therein, and shall always extend to any provisions of the new statute on the same matter which are incompatible with the prior statute. Mere abrogation of a statute shall not entail recovery of the force and effect of any provisions repealed thereby”. CHRONOLOGICAL CANON

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Art. 81.1. CE: “Organic acts are those relating to the implementation of fundamental rights and public liberties, those approving the Statutes of Autonomy and the general electoral system and other laws provided for in the Constitution”. SPECIALITY CANON / COMPETENCE CANON

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Art. 28.1 CE: “All have the right to freely join a trade union. The law may restrict or except the exercise of this right in the Armed Forces or Institutes or other bodies subject to military discipline, and shall lay down the special conditions of its exercise by civil servants”. SPECIALITY CANON

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Art. 149.3 CE: “Matters not expressly assigned to the State by this Constitution may fall under the jurisdiction of the Self-governing Communities by virtue of their Statutes of Autonomy. Jurisdiction on matters not claimed by Statutes of Autonomy shall fall with the State, whose laws shall prevail, in case of conflict, over those of the Self-governing Communities regarding all matters in which exclusive jurisdiction has not been conferred upon the latter. State law shall in any case be suppletory of that of the Self-governing Communities”. COMPETENCE CANON

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Art. 9.3 CE: “The Constitution guarantees the principle of legality, the hierarchy of legal provisions, the publicity of legal statutes, the non-retroactivity of punitive provisions that are not favourable to or restrictive of individual rights, the certainty that the rule of law shall prevail, the accountability of public authorities, and the prohibition of arbitrary action of public authorities”. HIERARCHICAL CANON

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Art. 97 CE: “The Government shall conduct domestic and foreign policy, civil and military administration and the defence of the State. It exercises executive authority and the power of statutory regulations in accordance with the Constitution and the laws”. COMPETENCE CANON

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Art. 148.1 CE: “The Self-governing Communities may assume competences over the following matters: 1. Organization of their institutions of self-government (…)”. COMPETENCE CANON...