El sentido del derecho ingles


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El sentido del derecho ingles

  1. 1. Manuel Atienza
  2. 2. a) . other works in 'Ariel:' ~ :;;. .;.' After justice Parts of the law (in liaison with J. Ruiz Manero) Anthony Weston Keys to argumentacin Hans Kelsen that is justice? Ronald Dworkin Seriously Rights Ángel Latorre Introduction to Law Enrique Alcaraz and Brian Hughes Juridical Dictionary of Terms., Inglés-Españbl/ SpanishEnglish L. Martínez and J. A. Fernández Law Course Teora Josep Aguiló Teora overview of sources of law Luis María Díez-Picazo Being able to acknowledge Alejandro Nieto The judicial discretion Carlos Santiago Nino Introduction to the analysis of law Enrique Alcaraz The Spanish Juridical Liborio Hierro The effectiveness of the rules Juridical
  3. 3. Submission I assume that many of my fellow philosophers of law extraeza vern with the Title put this book: The meaning of law. Some people have resonance-ing parecerque metafsicas inevitable and undesirable, and that the use of that language (or of the Terms: sense) suggests a aproximacina a certain way of understanding the philosophy Teora year the law (such as a soft intellectual activity and given to the conceptual confusion) to be avoided at all costs. Other Pensarn that behind of that Title must be some law that approach is that the reader can find in the pages that follow stas of submission. But I own several reasons for departing in this case of presumed (or to be fair with the reader, ms that presumably) those of my colleagues. One is that it is not a book you've written for them to read other philosophers of law (which, of course, little or nothing to learn in tendrn l), the openly put that I intend to address estformado by students of law, lawyers without special training or terica and people outside the professional world of law, but interested in acquiring some training or Juridical of carcter b physical. Another reason is that the question of the meaning of the law can be formulated, in my view it on a reasonably clear, but that does not assume, of course, suggest that for her there is any simple answer. As I see it, mane-ras habrabsicamente two different-butconnected s quse understand what you mean by the law sense, two senses of meaning. On the one hand, the question seeks an explanation of the law as social and fenllleno Historically, this requires, in turn, have some very s basic response to questions composed of 10 the following: for qu, and since spread, there is a law in qumedida consists of rules, qurelacin saved with the moral and the power to qusirve, social qufunciones satisfies cmo must be quobjetivos and values and can-be-achieved with l, know and how can be built qumanera Juridical science until an activity is qupunto argumentative, how to be understood its implemen interpretation. On the other hand, it Also ask whether the law (or type of law) integrates a valuable social prctica, is a kind of reality that can reach quizsslo fully understood by assuming a certain point of view, and a reality that estahsim-ply to be known, criticized or used strategically, but to be enhanced by the subjects that are part of it. Not trying to be pompous, but I will say that sta,
  4. 4. or hese are the big questions of philosophy of law, and which revolves around this book. What the reader can find an answer l is not deep, nor new to these issues, but I think shay in these pages some clear indications (or at least that has been my intention) that can help in that task might be explicaciny con1prensin (from within, taking a participatory attitude) of the law. Inicila task of writing this book as if it were the revision of an earlier book, Introduction to Law, published by Barcanova in 1985, but the result is-111E seems, a different book. I have used many materials of that Introduction, CHAPTER but some are brand new, others have built on the basis of several of my works from the last years, and the general approach-and even style: ms right now ensaystico-does not coincide with the first book, although I believe that this is a profundizacin (and simplificacin: These last couple are not Antag Terms cal) than alltratado. The LAST chapter, conceptions of law, is a reelaboracin of an article written for the Italian Encyclopedia, thank the editors of this book so the perm to appear here. That the book is addressed to philosophers of law should not mean that much to some of them. My companions of the department of philosophy of law at the University of Alicante: Juan Ruiz Manero, Josep AguilJuan Antonio Gonzlez Prez LledDaniel Lagier, rdenas Angeles, Isabel Lifante, Pablo Larra aga, Victoria Roca, Macario Alemany, Juan Antonio Cruz and Roberto Lara, have contributed in many ways to enable the book and to be better than it otherwise would have been, and I am for it (and many other things) grateful. I have contracted some adems a special debt of gratitude that I hope will not want to be charged very quickly. Juan Ruiz Manero leyel book, especially the first chapter, with the rigor and acuity that characterize it and evitla Commission of various errors (10 does not mean that you can charge those who have left), in addition, some approaches of the book come from work we've done together (but it did not mean to suggest that l estde not agree with all the basic thesis or, Perhaps above all, how to expose them). Josep Aguilme encouraged to embark on the task of writing this book, I made many suggestions that I have been of great value and, in particular, I influydecisivamente in no small way to approach issues. Juan Antonio Prez Lledrealizun exhaustive examination of all the work that has had the effect (AFTER to correct what bean to correct) to be filled with tranquility. A rdenas angels owe especially important algnaadido (compared to previous versions of the book), as referred to consideracin standards as reasons for the action. Isabel E Lifante leycon the ties that usually several versions of the book, thereby contributing to a substantial improvement of the whole work.
  5. 5. Alicante, November 2000
  6. 6. CHAPTER 1. For quel Law The ubiquity of law the law of non-progress The hiptesis Companies Law without law? The law and conflicto CHAPTER 2. But one issue ques dicult law definitions in the law the definition of law issues and vagueness ambigedad Some Conclusions CHAPTER 3. Standards Law and Standards and other standards bodies Juridical Quson Juridical Norms and Standards Law as a set of rules of law parts CHAPTER 4. Moral law and the standards of morality Ques Juridical positivism and natural law that remains CHAPTER 5. Law and Introduction to Law The concept of power and strength
  7. 7. Law, consensus and ideological power law and the Economic Conclusions CHAPTER 6. The functions of the Law The law ANALYSIS functional social functions of law Law and Social Change CHAPTER 7. Law, justice and human rights The concept of justice conceptions of justice and human rights Justice CHAPTER 8. Law and Juridical Origins and development knowledge of science Juridical Science Law and Juridical knowledge CHAPTER 9. Law as Law and agumentacin argumentacin argue Ques Juridical On The interpretation argumentacin CHAPTER 10. Conceptions of Law Introduction The formalism Juridical Juridical Realism Normativism The Juridical iusnaturalism Marxism The current situation Sinptico Index
  8. 8. Because the Law The right is an omnipresent phenomenon in our societies. Practically there is no social relation that not be, or may arrive to be, regulated juridically. However, unlike the King Midas that all that was ringing was turning into gold, the right does not turn having nothing else to say into that juridical whole so that you take interest . What's juridical is only an aspect of what's social ( than, according to the cases, you have a bigger or minor relevance ), but that yes, the one that we can not do without if we want to understand a certain amount of the world that you surround us. Stops proven, coarse with examining a daily newspaper of an any day. The one that now I have at hand contains like more outstanding news the following - of Judgment Day of the year 1999 -: The overhead pirates continue to be inflexible when it comes true a week of kidnapping; 35,000 people's picket comes face to face tonight in Spain to the effect 2,000; A judge of Barcelona admits the therapeutic use of the hashish and it absolves a prisoner; The 2.1 % will reduce the electric tariff for individuals next year; Russians and chechenos combat business home in Grozni's front; The bishop Uriarte blames ETA and to Government of the failure of the dialogue ... Well Then, some of those reports have a juridical manifest look: The kidnapping of an aircraft is a crime, this is, a contrary act right side up prison, as also drug traffic is it ( but no consumption: The sentence of absolution of a sick person of cancer that had been stopped with a certain amount of hashish is based on that. But tan1bién in the other ones has a juridical relevant aspect: The right may have contributed to palliating the consequences of the famous effect 2,000 - and non-existent -: The users of the affected services have perhaps obtained an indemnification for the damages that would have been caused. The cost-reducing measure to reduce the electric tariff is consequence of the juridical power that it has the Government to
  9. 9. act at that field - the Piece Of Advice of Ministros -. The war is a regulated phenomenon, to the less partially, for the right: Standards exist . - of international Derecho that they determine when the participation in a warlike conflict is legal ( or illegal ); And standards be more than enough how making war: For example, be more than enough how treating the prisoners or to the civil population: Not even the all voucher is admissible in the war. And, in short, the right also is present at a typically political activity like the played the lead in for the bishop ( in as much as mediator ), Government and 1;1 terrorist organization: The dialogue reference is done to - or the result of the same - - is not he can not be not our own right side up -: The liberation of the prisoners of ETA or the modification of his penitentiary situation can not be done if not you are by means of juridical instruments ( concession of pardons, administrative dispositions ... ); And redemptions independentistas suppose, among other things, changes in the Constitution in Autonomía's Statute ( in the text of the Constitution or in his interpretation ) and. If we passed what he proves to be newsworthy in a newspaper on to the aconteceres that configure our quotidian existence, right side up we followed ourselves finding everywhere: Every time that we took a bus ( and made a contract of transportation ) ( according to certain standards of administrative Derecho - if it has to do with a public University ), that we formalize a registration to study at the University, that we bought something, that we paid a tax or that they force a sanction of traffic on us. To such an extent are juridificadas our societies than, frequently, what in principle appears like alternatives right side up turns out to be simply another way to Derecho. For example, you are spoken to of " couples in fact;' ( their or by right ), but In general it becomes to claim that also they should have a juridical protection: This is, it does not have to do with an alternative right side up, but of an alternative Right to the established, that you not have prejudice on account of the sexual orientation of the individuals, of the circumstance that the union have or not formalized in a way, etc. And the crisis of the administration of justice is making room in to one each time principal use of form of resolution of conflicts eat arbitration, her mediation or her negotiation negotiation - another example -; But, again, it has to do with only alternatives to the judicial
  10. 10. mechanism, no right side up having nothing else to say: Those procedures are, in part, regulated juridically; One negotiates ( think about his negotiations in case of divorce ) ( ( in the shade " of the right, this is, basically taking into account what a tribunal would annul of Justice if the case come in front of him; The negotiators, mediators or referees use to be people with juridical formation than, therefore, apply forms to proceed typically juridical, etc. Otherwise, normally we regarded that as more developed societies music also the ones that do a bigger use of the juridical instruments. The Law and progress The ubiquity of the right is, would be pertinent to tell to, a crushing fact of the than, however, not always we are aware . As a consequence of it, neither we use to present issues as you give her why the right exists or if you are all right that I exist, this is, if our societies are or not improve for the fact to be organized juridically. This last issue is, in reality, extremely complex or, if you want, dark. Stops answered we would need to know with certain precision what you must get along well for ( ( Right and for fair society ", what the right fulfills social shows, or alternatives are which ones than exist front to the same. For the moment, it will not be superfluous to show that the question is relevant and that you can not do away in no time with with an appeal progress having nothing else to say - until we not have any answer to all those issues -. Today ( but not sien1pre has been that way ) we tend to think that the evolution of our societies is progressive, that our life is better than give it our forefathers and than, therefore, if they characterize our societies for the increasing importance of the right most of all, then these last they are also progressive facts, plus signs, the most developed - ( or of the market ). However, things are not so simple. From the start, it is not so easy to know in what the progress consists exactly and how measured, in relation with what factors: Progress does not seem to have imitated inintenumpida a linear trajectory, you do not affect all of societies equally, neither to all of the individuals that live in a
  11. 11. same society - that want me to be -. Besides, the idea of progress seems to have multiple facets: Civilizatorio is spoken to of costreducing progress, technical, scientific, moral, cultural, ... would It Not Happen for societies to be progressive when you consider them from a perspective, but no from another one - our societies -? For example, we can give for undisputed the existence of scientific and technological progress ( the fact that they be common knowledge - in impersonal - more things on the natural and social world and be more than enough how using that knowledge stops modified ), but that is not unequivocal sign of a positive evolution in individual or social térn1inos; It is not sign that we live in a superior civilization: Our life like individuals is not necessarily better simplernente because we have an automobile, of central heating or of a connection to Internet - more rich, more complete or more happy -; And, most of all, our societies necessarily are not better off organized after the Industrial Revolution and in complete era of the information and of globalization - they are not more just -. The technological progress and scientist it means an enormous potential of human liberation, but you are not at all obvious that we had been able to take advantage of it. Not only that, it would be necessary to acknowledge to than, in no few aspects, societies with a grade of technological development very precarious primitive societies " solved lnejor than we basic problems like the one belonging to the social integration: His Criminal Law was much less developed than ours, but also crueler and more efficient. For example, indiums cheyennes - the savages of the films of the Oestecastigaban the death of a member of the tribe to not our own hands simply with grief of exile of one to five years. The judgment for part of the piece of advice of the tribe went accompanied from a ceremony of purification ( the act of murder was considered one sinned q and affected all of the tribe ) that they were cutting in all of the members on, with the exception of the murderer and of its family; It turned out well not only to avoid the revenge, new bloodsheds or a cruel punishment with it ( as without a doubt the grief comes from prison - not say the capitalusual in our Rights ), but also reinforcing the social links in critical moments Hoebel 1979, p . 158 . Naturally, this and another referent data to the equilibrium between the individual's elbowroom and the need to safeguard the well-being of the tribe ( ( comunitarismo than, apparently,
  12. 12. cheyenne characterized the society, you do not have reason to take to her life of thoses indium about them grasslands to North American be superior ) toing her give them to that es called develop advances by her policy actu to the enter ( ( liberalism and - preferable. In reality, a similar judgment ( the comparison between two or more ways of life ) can not be done from the vacuum, but relating to certain system of moral values ( the very of who emits the judgment ) and taking into account the conditions of development out of every culture. That explains that few of us would be willing to change our life for give it a cheyenne ( enclosure if not they inhabited in a reserve ), the same way that you are not of supposing neither that they feel themselves very at ease taking the typical stock - of middle class's individual of an one belonging to our cities let's put -. However, that definitely makes sense to affirm he is than, according to the notion of ( an association that procures the well-being, the freedom and the equality of the individuals that integrate her ), the cheyennes's social organization - once the cir were given unst ra.n's ncias adversity you developed in - - has been but rational but that the mavar inform her about the contemporary societies ( ( the society jousts " that many members of the occidental culture share Justa -. . It is certainly difficult to think that ours is a world well-ordered lníniIna, a just world. Even laying aside the fact of than the century xx has been the most violent one of history, how no considering radically unjust a situation you get ready in of resources enough to fulfill the basic needs, and less than basic, of all those that we inhabited it, but the greater part of humanity lacks the most essential - to planetary level -: One out of every five inhabitants of the planet suffers from hunger and:Are glás of one half poor? Besides, even in the capitalist societies more opulent, people's proportion that his basic needs do not manage to fulfill is very loud and, apparently, it tends to increase, while they increase also the differences between haves and have nots. The prison population's numbers are also a character's eloquent index less than showing a deficit of our social order: There are today two million recluses at United States ( and six million others people that have gone by the jail ); And the situation is less outrageous in occidental Europe but neither it is enough to throw the bells to the pilot - without a doubt, something has to do with the social State's existence with it -: In Spain, the prison population promotes some 45,000 people ( a percentage something like 10 inferior times to the one belonging to the United
  13. 13. States ), that means approximately that he has bent down in the course of the last ones 20 years. In a word, societies puederi becoming, in various senses, more complex unless it mean that they are more just; The principal witnesses of the right, of juridical instruments, to govern the conduct of the men in the society do not carry a social order of superior type necessarily matched up. The hypothesis of the Right-Hand no Certainly, a reflection once the previous was seemed ( you raise her consciousness to live in a deeply unjust society ) is what the existence of a primitive Saturnian Age men were living in in a status of freedom and natural harmony that institutions' establishment was not doing necessary should have carried to authors of varied epoches to hipotizar than, like the right, they bring with themselves the exercise of power, the use of the coercion of some men on other ones. Examples thereby were found by Ovidio, Virgilio in the Bible ( the story of the Garden of Eden ), in many classical authors like HesÍodo,, or Séneca, and also at The Quixote's passage in the than, after pondering the walking cavalry that you equal everything, the Mr. Quijote addresses himself to some goatherds that had been accepted, along these lines: " happy age and centuries those whom the ancient put name of golds ... because then them than they lived in her they were ignorant of these two words of yours and my. Everything were in that holy age common ... ] Todo era paz entonces, todo amistad, todo concordia [ ... not even malice Did Not Have the fraud, the deceit mezcládose with the truth and plainness. The justice was itself in his of one's own terms, unless they dare to disturb her neither being offensive give them the favor and give them interest, that so much now they undermine it, they disturb and they chase ; Not yet the law of the lace had been established in the judge's understanding, because then there was not what passing judgement, neither who stand for trial ... " The ideal of society that the anarchists and the Marxists in the century nominated XIX as a candidate and it serves to be, in a way, a version of that myth of the Saturnian Age, past for the ideology of the progress in the xx: The existence of that fortunate age is not thing of the past that way, but of the future and if the future we placed it not in the over this way more, at the land, but in the beyond, in the skies, the myth, acquire religious dyes: The original sin, in the Christian religion, supposes the loss of the
  14. 14. Garden of Eden, the appearing of evil in the world and, with it, the surging of the Right and of the State; Many Christian authors deduced of there the need of the use of the coercion in this world, while the true justice got flunked to the other world, to the kingdom of heaven. In the event of Marxism, the central idea is existing a logic of the social development and than the key to understand each kind of society finds itself in the Mode of production, this is, in the way that men make a living, and in the kind of the ciones s ciales that they establish among themselves in this respect; They distinguish aSl, like moments of a succession no right now only of chronological type, but logician: The primitive communities' mode of production, the mode of Asiatic production, the mode of ancient production or enslaver, the mode of feudal production and the mode of capitalist production. The right and the State would not have existed always. They happen historically when the social classes appear, what happens with the mode of Asiatic production or of hydraulic despotism, this is, forms it of social organization of the Ancient Egypt or of Mesopotamia and, until recently, of China or of the India, and they will stop existing when you exceed the capitalist society to the communist society that again a classless society ( as it happened in the primitive communities ) is social and without conflicts. " once in the course of development the high-class differences had disappeared and all production had focused on the associated individuals' hands, the public power his political character will lose - it can be read in Marx's and Engels's communist Manifesto, article in 1847 -. For Marx and Engels, the political power is the violence organized of a classroom for the oppression of another one and it will stop existing ( like the right ) when in substitution of ancient bourgeois society, with his classrooms and his high-class antagonisms, happen an association that the free development out of every one will be the condition of the free development of all in. In an one belonging to his last works, Crítica of Gotha's Program ( of 1875 ), Marx wrote than in the superior phase of the communist society, when with the development of the individuals in all his aspects, grow also you force them productive and run to full jet the collective riches's springs it will can at last " passing over the narrow horizon of the bourgeois right totally, and the society will be able to write on her flag: Of each one, according to his capability, to each one, according to his needs!.
  15. 15. Now then, is the Marxist hypothesis plausible or give it anarchists or give it certain type of Christianity like the one belonging to Tolstoi that the turn was upholding to the first Christian communities? The anarchism like political conception does not seem to enjoy today good health, had it not been in the way degenerated of certain extreme neoliberalism that is characterized to detest of all what's state-owned; But, obviously, the ideal of human liberation that traditionally has held the anarchism and that was based on the belief in that the voluntary cooperation and education would allow abolishing all type of laws, little it has to do with the one belonging to the neoliberal ideologists of extreme right that the State for the market is to the one thing they extract to to substitute - like in the event of Godwin 1945 -. Christianity continues to be without a doubt a rising ideology, but what is in rise is not a project like the one belonging to Tolstoi precisely. And Marxism seems to have come completely swept from the scene, after the fall of the wall of Berlin and of the ending of the USSR. Today tends to consider himself like a conception been in danger of the world, that does not stop being a little bit surprising if one thinks than during a good part of the century XX it worked like one of the two or three big ideologies that were moving the world. Certainly, there are not not enough reasons to call into question many aspects of the Marxist philosophy; For example, his conception of the history according to which, the arrival of Communism has an inevitable character, which, among other things, took fatally to underestimate the issue of the means to come to that ultimate goal - than, in reality, it is a religious conception -. But there are many other theses that it would be perhaps precipitated to hit for refuted simply to the sight of the failure of the communist systems - or something worse -; After all, also the Christianity ( to put an example of related ideology in many aspects to Marxism ) has produced the history throughout history one or another disaster ( the inquiry, crusades or the wars of religion are only some examples ) than, however, it has not destroyed him. It would look like, for example, there is no reason to abandon the Marxist theses that do not have scatological character having nothing else to say, so what not even they intend to transform the world but to explain it. Join theirs you are the idea that the right happens of the conflict between social ranks and that, in consequence, is a historic phenomenon that you accompany only the development of certain type of societies. Is that true? Societies without Derecho have existed really - or do exist -?
  16. 16. Societies without Law? Let's revert to the cheyennes's case, that they were hunters' town and collectors it would be very unlikely in properly of social ranks and where there was a system of private property, but very limited: In principle, with the exception of the land and of the fetishes of the tribe, assets could be object of private appropriation, but the obligation existed of shared with the other ones. Did a cheyennes's Right exist really? As we have seen, in that society standards that were forbidding and were sanctioning the act of murder, as well as another types of violent conducts or, in general, you antagonize to the community's interests were in force . Now then, the base of all those prescriptions had a religious character, that does not happen with our juridical systems, that they are based on the separation between the right and the religion - give them the occidental societies -: The cheyennes believed than the man estásubordinado to supernatural forces and to spirits of benevolent nature; The death of a cheyenne for another one contaminated the murderer, but also to the tribe's fetishes: Until these fail to match, you would pursue the bad luck to the tribe. In addition, authorities elected regularly ( the piece of advice of the tribe and the bosses of the military societies all warriors were integrating in ) with power to change or adapting the standards to the new circumstances existed also and stops applied in same cases of conflict or of unfulfillment of them, but naturally those authorities differed from in various aspects the legislatures, executives and judicial of our systems: For example, between the cheyennes there was not a legislative organ properly, neither division of powers ( between the executive and the judicial ), neither codes or professional jurists. Does it make sense to talk of Derecho in those circumstances? The jurists use to repeat an adage according to law Roman, according to which, where there is a society there is also a Right ( ubi societas ibi ius ). But it does not look like for me to have no convincing reason stops accepted having nothing else to say. A thing is that it may be told than where there is a society - for little of Sarrollada that be standards and sanctions exist also; For ejen1plo, in1aginable is not a society that not establish any prohibition in front of the job of violence ( although prohibition not be enough to all of the members neither to any type of violent act ) and sanctions in front of the infringers ( although it not have to do with more than a social diffuse reproach ); If it were not that way ( and granted that we can not think up circumstances that root out the possibility to act violently ), a human group would be able to not
  17. 17. simply last. But something else is that to those standards and to those sanctions we call them juridical; As did we see at the beginning, the right is a so'dedad's aspect, not the society having nothing else to say, and so that we use to tell apart between juridical standards, nuns, moralses, of the social deal, habits ... Why to consider that the standards that they put to some limit violence ( or that do they forbid the incest or adultery ) are juridical and no very habits, moral standards or nuns? There is not an expeditious way to reply to this question, because for it we would need to depart from an unequivocal item of what it is Straight ( and what you do not come from ), in reality and a consent is far from existing with regard to this matter. For example, the Marxist authors and many jurists would lay eggs like necessary condition to speak of Derecho the existence of centralized authorities's State and, this is, of an appliance that the use of the physical force monopolizes . But this would not be acceptable for many anthropologists. Bronislaw Malinowski, in a famous work you supported 20 ( Crime and habit in the savage society ) that some regard as the birth of the juridical anthropology, of the years that all those standards that are conceived and that are applicable like binding obligations were juridical; But stops than exist those binding obligations, tacking with that a relation of reciprocity be given, this is, with that any pressure for part of the group exist, which can take place without authorities's need. Otherwise, all anthropologists do not agree with this last thesis, but among themselves queen a situation of true dispute with regard to this matter: The issue of when begin to there be Straight she is not by no means pacific, although, in general, it can be said that anthropologists tend to hold Derecho's more ample concepts of what he is usual to find between the jurists. To the chance of this difficulty, a procedure that it enables arriving to a reasonable answer to the presented issue exists perhaps. It would involve finding out which ones the striking features that characterize what normally we use to call Derechu to are, and checking next even what point those elements are or not present in all the other types of society. Well then, if we departed of what usually we considered that a juridical system is ( for example the Spanish present-day right ), we can come to an agreement in than the same it is formed not only for nonnas of conduct that they establish prohibitions, obligations or permissions; After all, also religion, morals or the cost umbre they produce a regulation of the human conduct in those terms. What's privative one belonging to the right seems to be in the existence of public, authorities organs, of several types. For example: Authorities ( members of the
  18. 18. parliament or white-collar workers ) that have to can to establish or to modify rules of conduct that link music to you s for the other members of the group; Authorities Uudiciales ) that they have somebody can to apply those standards to the cases in dispute and to resolve the conflicts into binding form for the parts; Authorities ( policeman broadly ) with caning to enforce the previous decisions turning as a last resort to the exercise of the physical force. In the event of the cheyennes's society, granted that in the same the organs seem to exist to the less than the last few types, sentldo would have somebody talk of Derecho; If you want, in order to mark the difference with our juridical systems, we would be able to use expressions like Rudimentary right, Primitive right or some 1 similar other. But can you say to oneself the same thing of all the socjeoades? What would happen if we find out that societies that it is not neither legislator in exist he is, neither judges, neither policeman, neither no type of permanent authority - or have they existed -? Would it make sense in such a case to keep talking about a juridical ordf"n?
  19. 19. Let's take the case of the Eskimo that are considerate by the anthropologists like one of the most primitive towns. They live ( some 10,000 km ) fundamentally on hunting and of fishing, to long of an extensísima stripe in the arctic - or they lived -. They are organized in local groups very pequeI10s that use to integrate a dozen of families than, in total, rarely the 100 individuals surpass . No type of authority constituted of permanent way does not exist among themselves. A boss is in each group, but a primus is not more than this you stop inter; No procedure regulated of election does not have chief l he is almost always the defttest hunter and that position occupies only in the meantime the other ones itself accept your judgments and opinions. Now then, authorities's lack does not mean for quarrels between the members of the group between members or not to exist of several groups - of a personal power of a man on another one -. Apparently, they happen with certain frequency and they use to have a sexual motivation. The males' ideal of realization ( women as it happens in many primitive societies - they have a place socially subordinated ) is to succeed in to obtain food and women. The first thing does not seem provócar too many conflicts; The Eskimo consider that nobody must have more than what you can use, so that prestige is obtained not simply to possess goods ( food ) but for being a public benefactor. But relating to the women's possession, quarrels are frequent for adultery ( that for the Eskimo you signify : Having sexual intercourses with a married woman against the will express or tacit of the husband ) or for the appropriation for the force of the woman of another man. In some cases, the victim of an offense can be content with defying the offender to a tournament of songs, what certainly a curious mechanism of resolution of conflicts constitutes ; The reconciliation between conqueror and beaten it is not produced
  20. 20. properly establishing rights and obligations ( so that it be difficult considered like a procedure of juridical type ), rather what is chased is that parties to the suit feel satisfied psychologically; And, apparently, that spectacle produces such fascination they participate between in the same like contenders or like spectators, that you are usual than in the passing of the same forget him the origin of the dispute, what a obvious lead that the conflict has been surpassed constitutes . Other times, the conflicts resolve by means of combats reglan1entados contenders fight in hitting oneself with the fists themselves or with the head. But in many instances, the conflict provokes the offender's death. The rate of acts of murder between the Eskimo is, apparently, very tall: In part because - as a consequence of the hardness of vidase's conditions you depart from that the society can not tolerate unproductive members' existence, that results in that they consider justified forms of act of murder ( like infanticide, the invalicidio, the senilicidio ) and of suicide ( the assistance can constitute even an obligation to the suicide ) giving death to another one is a form to solve conflicts, and in part because I eat he has just seen oneself -. Certainly, all the above does not signify than in the Eskimo society not exist limits in front of the exercise of violence. Somebody that you give to death in an occasion one or cans to several people not only not to suffer a disapproval for part'e of the group, but even seeing how increase your prestige. But this does not happen with the recidivistic murderer, which is considered like a social threat; The murderer becomes a public enemy and he is punished with the death to hands of an agent of the community; However, the executer is not a community's stable organ, but somebody that has gotten the approval from the group to act in that case, approval that it is necessary for which his act not be considered like a new act of murder that cause future revenges. In short, the anarchist, without permanent authorities, tribunals, can say that the Eskimo society is a society policeman or written standards. Does it not seem then reasonable to say that a jurisprudence does not exist here, but a social order obte intervening nest standards ( if you want, habits ) of moral character or priest?