Fundamental Concepts of Law and Legal Theory

Core Definitions in Legal Theory

Fact: Any event in life.

Legal Fact: Any fact of life that carries consequences in law.

Legal Act: The exercise of will with the immediate aim to create, modify, or extinguish a right.

Legal Poles and Obligations

Asset Pole (Creditor): Those who hold rights.

Liability Pole (Debtor): Those who hold obligations.

Methods of Legal Hermeneutics

Legal Hermeneutics: The art of interpreting the law.

• Literal (Exegesis): Focuses on the text itself.
• Teleological: Takes into account the purpose of the legal standard.
• Historical: Considers the time and context in which the law was created.
• Sociological: Considers social factors and impacts.
• Systematic: Addresses and resolves logical antinomies within the legal system.

Distinctions Between Branches of Law

Public and Private Law

Public Law: Protects the public interest and governs relations with the government. In this sphere, everything that is not permitted is prohibited.

Private Law: Protects the interests of individuals and governs private relations. Here, everything that is not forbidden is allowed. The central element is the contract.

International and Domestic Law

Foreign (International) Law: Coordinates relations and legal situations involving sovereign states. The aim is to create an international community where sovereign nations are placed on an equal footing to protect the international community. This involves foreign production of norms.

Domestic Law: Comprises both public and private law but is only active within a given country. This involves domestic production of norms.

Historical Schools of Legal Thought

The Exegesis School

Exegesis: Known as the "cult of law" or "form code," where the law identifies the general will and the principle of legality. It is a product of the Enlightenment and rationalist jusnaturalistic inspiration. It prioritizes the principle of legal certainty, asserting that nothing exists as law beyond the legal text.

The Historical School and Key Figures

Historical School: Views law as developing through history as the spontaneous creation of each people (the spirit of the people, common conviction, and custom).

Thibaut: Argued for the need for a civil code in Germany (marked by clarity and rationality) to achieve the unification of Germany and overcome ambiguities in existing laws.

Savigny: Opposed to codification, Savigny believed the lawyer should grasp the law already latent in vital relationships—the "living law." The legislature can express and integrate this law but cannot create it arbitrarily. He argued that codification goes against the historical traditions and common beliefs of the people.

Scientific Positivism and Interest Theory

Puchta: Focused on customary, legislative, and scientific law. His method emphasizes rationalism and prioritizes the construction of a scientific legal scheme, often disregarding the historical and social sources of law (legal formalism and scientific positivism).

Jhering: Posited that the origin of law is the struggle for interests. The law's role is to protect these interests and is permeated by values rather than being a neutral universe separate from the social world (as it was for Puchta). The struggle between individuals and social groups is the primary source of law.