Origin, Power, and Definition of Law: Public vs. Private

Origin of Law

Where there is a society, there is law; where there is no society, there can be no law. No social life is regulated by human rights, and its origin is not in man alone.

Anthropological Perspective

It is debatable whether the allusion to human rights as a whole governing principle in the life of primitive peoples constitutes a technical legal concept.

Philosophical Perspective

There is no pre-social state of legal rules.

Historical Perspective

The appearance of legal norms can be tested historically. To justify the existence of a minimum set of laws, certain circumstances must coincide, such as:

1. Human vulnerability
2. Approximate equality
3. Limited altruism
4. Resource limitations
5. Comprehension and free will

The force of law arises from the relationships between people who, while able to recognize common rules for the benefit of all, continue to act in their own self-interest. This requires the establishment of a power that dictates a rule or set of rules with claims to obedience by all, guaranteeing the common enjoyment of a better-organized society.

Law and Power

Justification or Origin of Natural Law

Power is a founding or producing fact of law and is what enforces the legal order. Every legal order must have a power that supports it. The relationship between power and human rights is generally legitimate, establishing a fair system of laws. However, there are illegitimate powers that create unfair rules, and illegitimate power provides an unfair legal system, even if the rules themselves are just. Legal rules contain a set of norms guaranteed by the use of force and emerged following the establishment of a legal order. This legal order determines which bodies are able to produce and ensure the effectiveness of human rights and powers "to legislate," court decisions, legal character-recognition applications, or custom. These bodies exercise the use of force to enforce the law.

Definition of Human Rights

Several definitions of human rights exist:

1. According to Sergio Cotta, it is "ontologically a fair rule of coexistence." This commits the fallacy of considering all law to be just. Different legal systems offer different solutions.
2. Luis Legaz defines it as "a point of view of justice." Historical experience shows that not all systems reflect just ideas.
3. "Any coercive rule." This is unsatisfactory because many standards do not require coercion.
4. "Rule of law applied by judicial bodies." This is uncertain because the figure of the judge alone decides controversies.
5. "Rule of law of state origin." Many state regulations are not contractual in nature.

Hallmarks of Law: Human rights are a product of law. They are:

1. A social phenomenon
2. Normative
3. Standards that stem from the legal order

Elements of Law: According to Ara Pinilla, the elements that define law are:

1. A set of rules for the regulation of social life through the repression of harmful or dangerous conduct to public or private integrity.
2. Guaranteed by the use of force or incentives.
3. Attitudes considered appropriate for the effective development of social life.
4. Determines the status of members of the community.
5. Provides a distribution of services among community members and outsiders.
6. Institutionalized nature of public authorities in their respective jurisdictions.

Public and Private Law

Public Law

Public law addresses the State's legal order and its relations with other public and private bodies. It encompasses political, administrative, international, and procedural law.

Private Law

Private law regulates relations between individuals acting in their own name and for their own benefit. It includes civil and commercial law. The Constitution is attributed relevance as a supralegal provision that determines the validity of the remaining rules of the system, which must be interpreted according to its tenor, guaranteeing the dominance of public law. Public law serves the general affairs or public interest, while private law refers to the particular interest.