Hart's Theory, Legal Consistency, Completeness, and Duty

Hart's Theory: Order Sum Rules

Hart's theory distinguishes between primary and secondary rules. The first organized secondary rule gives unity. Recognition determines the characteristics that a standard should have to be considered as such. This is manifested in the everyday activity of judges.

Pre-existing Questions and Circularity

There are no problems with the circularity of the rule. To know who the judges are, one needs to know the rule of award, and this requires unity of the rule of recognition.

Plurality of Rules

It is not clear whether there are one or several rules. Principles are not identified, but are instead identified by axiological values.

Consistency

Consistency is the absence of antinomies, where two norms regulating the same course are incompatible. The legal system provides solutions in the field of application. There are three types of antinomies:

• Total-total
• Total-partial
• Partial-partial

Resolution of Antinomies

Antinomies are resolved through a hierarchical approach:

• Lex superior derogat inferiori (higher law supersedes lower law)
• Chronological approach: later law supersedes previous law
• Specialty: special law repeals general law

In case of conflict, hierarchy prevails over chronology, and chronology over specialty, with the final decision resting with the judge.

Completeness

A legal system is complete when it regulates or offers solutions for any conflict. Integration mechanisms are necessary, as judges cannot refrain from judging due to the "prohibition of non liquet."

Legal Theory and Empty Spaces

According to legal theory, an empty space is not legally regulated and is therefore irrelevant. Kelsen states that everything that is not prohibited is allowed.

Self-Integration

Self-integration involves using the main source of law.

Analogy

Analogy applies when a case is not covered by applicable law, but other legal consequences are covered, provided there is a reason or similarity. Criminal law and ius analogy are not applicable. Analogy involves the use of general principles of positive law, extracting those rights from a particular case to the resolution.

Heterointegration

Heterointegration involves using a different legal system where the gap exists, such as French or Roman law.

Legal Duty

Legal duty is based on any legal system. For Kelsen, it is the action contrary to the condition of application.

Constitutional Bloc

The Constitutional Bloc is a set of standards interposed between the Constitution and laws that distribute and delimit powers between the state and the prosecuted Autonomous Communities. These standards of constitutionality serve to resolve conflicts of competition between the state and the Autonomous Communities. Other inferior standards that are constitutional include delegation framework laws, organic laws, harmonization laws, and transfer laws.