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39
The Systematization of Legal Values around Justice
ARCHIWUM FILOZOFII PRAWA
I FILOZOFII SPOŁECZNEJ
2021/3
M. Isabel Garrido Gómez1
University of Alcalá
The Systematization of Legal Values around Justice2
1. Introduction
On the premise that the term “value” means an idea of justice, in dealing with the study
of the higher values of any legal system and, therefore, of the process to which the legal
norms comprising it are subjected from its very beginning, it is necessary to understand
the meaning of the state in which they are framed, without losing sight of the histor-
ical perspective.3 Consequently, the political formula of the state that is used comes
together with the existence of the higher values of the legal system, which are the ones
that constitute its legal expression.
However, the situation is complex for two reasons:
1) Firstly, because within any given type of state there are different positions. By way
of illustration, most contemporary liberals do not advocate a total freedom of
the market, with Bruce Ackerman noting the various limitations to its opera-
tion, which are classifiable into four types. The first limitation is that real-world
markets do not conform to the ideal models of perfect competition, which thus
drives the state to protect the environment and consumers, while also leading
to the provision of old age pensions and health insurance. The second calls into
question the right of high earners to transmit financial gains to their children,
without this opportunity existing for the children of poor parents. The third deals
with the great significance that education has in preparing each citizen for making
sensible choices. And the fourth is focused on the ensuring of more or less equal
political resources for all citizens, even while they may have different uses.4
In another facet of the analysis, there are differences between the liberal, protect-
ive and republican models of freedom in relation to fundamental rights. Indeed,
1 ORCID number: 0000-0002-0216-1874. E-mail: misabel.garrido@uah.es
2 The article was written within the frame of the research project entitled Racismo y discriminación: los derechos
humanos bajo amenaza (MULTIHURI), (PID2019–105018RB-100), Spanish Ministry of Science and Innovation.
3 L. Henschling, tat de droit –Rechtsstaat –Rule of Law, Paris 2002, p. 30ff; A.E. Pérez Luño, Derechos humanos,
Estado de Derecho y Constitución [Eng. Human Rights, Rule of Law and Constitution], Madrid 2005, p. 214ff; D. Zolo,
Teoria e critica dello stato [Eng. Theory and Critique of the State], in: P. Costa, D. Zolo (eds.), Lo stato di diritto. Storia,
teoria, critica [Eng. The Rule of Law. History, Theory, Criticism], Milan 2003, p. 17ff.
4 R. de Asís Roig, Sobre el concepto y el fundamento de los derechos: Una aproximación dualista [Eng. On the Concept
and Foundation of Rights: ADualistic Approach], Madrid 2001, p. 85; M. Atienza, Introducción al Derecho [Eng.
Introduction to Law], Barcelona 1994, pp. 151–152.
DOI: https://doi.org/10.36280/AFPiFS.2021.3.39
This text is licensed under a CC BY-NC-ND 4.0 International License.
40 M. Isabel Garrido Gómez
the most liberal conception of autonomy is presented by Immanuel Kant, for
whom the problem of the law is, as in all morality, its general conceivability with
freedom being the primary reality of both. And we find the most republican
orientation in Jean-Jacques Rousseau, who sets out from the principle of the
constitution of civic autonomy and establishes an internal connection between
popular sovereignty and human rights.5
2) Secondly, because in social and democratic states governed by the rule of law,
freedom needs to be recognized and protected by the state, and equality en sures
an equal formal efficacy of the law, proscribes any type of discrimination between
individuals and groups and provides acertain minimum guarantee of material
security. The mediation between freedom and equality, between the social and
democratic state, shows that the state has to provide freedom by legally interve-
ning in the proportion that is necessary to enforce respect for fundamental
rights. Therefore, the task of organization must serve to remove the obstacles
that oppose social mobility or the deployment of the full range of individual
economic, social and cultural possibilities.6
Now, taking into account the considerations listed above, we can show that justice
represents the axiological criterion that must inspire any normative system, and it
is formally manifested through legal security, and materially through freedom and
equality (without disregarding values such as social peace, pluralism or solidarity,
which will not be examined in this article).7 Within this systemic organization chart
analysed from the perspective of critical positivism, security plays an informative and
conclusive role of freedom and equality, which in the rule of law is apresupposition
of legality emanating from fundamental rights and fulfils the function that ensures
the attainment of freedoms. Security is objectively regulated by the structural and
functional regularity of the legal system, which produces certain subjective perception
effects of calm and tranquillity in people and in the conscience of society in knowing
what rules to adhere to.
Antonio Enrique Pérez Luño understands it as an addition of certainty and
legality, hierarchy and normative publicity, non-retroactivity of what is unfavoura-
ble and non-arbitrariness; linking up today with the basic legal rights whose assur-
ance is deemed socially and politically necessary. Accordingly, justice is losing
its ideal and abstract dimension in order to be incorporated into the claims that
inform its content in the social and democratic rule of law as established in the
constitution in question.8
In addition to the above, we will analyse various theories that will allow us to con-
clude the centrality of justice when it is understood as an over-informing value that
globalizes and systematizes all the other values.
5 I. Kant, The Metaphysics of Morals, New York 2017, First Part, IV, and Second Part, III; J.J. Rousseau, The Social
Contract or Principles of Political Right, London 2007, II, VI.
6 E.L. Lutz, H. Hannum, K.J. Burke (eds.), New Directions in Human Rights, Philadelphia 1989.
7 G. Peces-Barba, Curso de derechos fundamentales. Teoría general [Eng. Course on Fundamental Rights. General Theory],
Madrid 1999, pp. 207–294.
8 F. Arcos, La seguridad jurídica. Una teoría formal [Eng. Legal Security. A Formal Theory], Madrid 2000, p. 409;
A.E. Pérez Luño, La seguridad jurídica [Eng. The Legal Security], Barcelona 1991, p. 30ff; A.E. Pérez Luño, Teoría
del Derecho. Una concepción de la experiencia jurídica [Eng. Theory of Law. AConception of Legal Experience],
Madrid 2020, pp. 220–221.
41
The Systematization of Legal Values around Justice
2. The theory of justice
2.1. Diversity in the understanding of justice
Although in the previous section we have attempted to provide an orderly view of what
justice is and what it entails, many ideas have been supported by the doctrine of justice.
One example is that of Ulpiano, who defined justice as “the constant and perpetual will
to give each person his or her right”.9 The law has justice as its aim, and makes refer-
ence to its projection in real and practical life that, by establishing acertain equality
between men, seeks to achieve the common good.10 Ajurist does not lack parameters
to discern the just from the unjust, the lawful from the unlawful: Iustitiam namque
colimus et boni et aequi notitiam profitemur, aequum ab iniquio separantes, limitum ab
illicito discernentes.11
Notable within classical realism are Aristotle, Thomas Aquinas and their followers,
for whom justice resides in the natural order as occurs with the classical natural law. The
first-named held that justice is “the provision by virtue of which men practice what is
just, act justly and want what is just,” which is aformula equivalent to that of Ulpiano.12
Meanwhile, Thomas Aquinas spoke of the “virtuous habit of the will by which we are
firmly and steadily inclined to give each one his right”.13 Will here means the voluntary
act or, rather, the firm and constant disposition in the will to give what is fair.
In relation to the position supported by legal positivism, agreat number of authors,
such as Hans Kelsen, identify positivism with the thesis that there are no principles
of morality and justice which are universally valid or, at least, knowable by rational
means. With this view, Kelsen sets out from the assumption that the only judgments
from which we can preach truth or falsehood are empirical statements. Value judgments
are subjective and relative.14 Therefore, according to him, justice is nothing more than
an irrational ideal. Now, legal positivism does not entail accepting the thesis of the
non-cognitivism of values, meaning that John Austin,15 setting out from utilitarian the-
ories, believes in the possibility of building an objective morality, and Herbert L.A. Hart
accepts to be the minimal content of natural law.16 This position could be complemented
by John Rawls’ assertions in his attempt to rescue ethical-political reflection from scep-
ticism and relativism that prevailed in the practical philosophy of the first part of the
20th century. In this sense, the author gives priority to justice and argues that it must be
prioritized over coordination, efficiency and stability.17
In short, the belief that there are universally valid and rationally justifiable moral
and just principles is perfectly compatible with the positivist conception of the law.
9 Digesta Iustiniani, 1. 1. 10. 1.
10 J. Iglesias, Derecho romano [Eng. Roman Law], Barcelona 2010, p. 93.
11 Digesta…, 1, 1, 1, 1.
12 Aristotle, Nicomachean Ethics, New York 2009, V, 9, 1.137 a.
13 T. Aquinas, Summa Theologiae, New York 2016, II-II, q. 58 a1. Cf. M.T. Cicero, Treatise on Rhetorical Invention
and Treatise on Topics, 2009, I, 2, c 53. On the subject see: B. Barry, Theories of Justice: ATreatise on Social Justice,
Vol. 1, Berkeley–Los Angeles 1989.
14 H. Kelsen, Pure Theory of Law, Clark (New Jersey) 2009, p. 79ff.
15 J. Austin, Lectures on Jurisprudence: Or The Philosophy of Positive Law, Vol. 1, Clark (New Jersey) 2005, pp. 218,
268–269.
16 H.L.A. Hart, The Concept of Law, Oxford 2012, p. 239ff.
17 J. Rawls, ATheory of Justice, Cambridge 2000. On this subject see: F. Arcos, in: V. Zapatero, M.I. Garrido, F. Arcos, El
Derecho como proceso normativo [Eng. The Law as Normative Process. Lessons of Theory of Law], Alcalá de Henares
2010, p. 237.
42 M. Isabel Garrido Gómez
But of all the positions, the one that understands justice as aglobal, all-encompassing
and fundamental value is the one that we believe is most correct. The problem, says
Giuseppe Lumia,18 has to be approached with reference to the general problem of
value, especially as aresult of the notable impulse given by Max Scheler. This path is
advantageous as it allows us to give the idea an objective basis without eliminating the
position that it considers it to be avirtue or permanent frame of mind, emphasizing its
objective aspect defined as an evaluation criterion.19
2.2. Justice and legal values of freedom, equality and security
As is evident from what has been mentioned so far, the problem of justice does not
differ from that of values in general, because what is sought is the criterion by which
abehaviour can be valued as fair or unfair and the standard by which it is inspired.20
The legal values in which the projection of the value of the law unfolds are structured
through the problems related to justice, order, security, social development, collective
welfare, etc.
They constitute ideal objects with avalidity analogous to that of other ideas, but
they also have the vocation of realization. It is true that the validity of avalue does
not entail its necessary realization; in this regard it can be said that the value realized
configures the quality that has the virtue of comparing an object with the ideal value.21
From this point of view, it can be affirmed that legal values rationally base the validity
and regulatory meaning of each of the regulations of the legal system insofar as they
are beneficial to the freedom of each individual and the freedom of social existence in
all its dimensions.
Thus, the law is never neutral when it comes to defending some or other values. All
legality is supported by asystem of legitimacy, while it is possible to appreciate that
values are not absolute and change due to circumstances.22
2.2.1. Freedom
One of the characteristics of the law is that it sets out the sphere of freedom of its cit-
izens, so one of the moral evaluations made of it refers to the justification of the greater
or lesser scope of autonomy that is left in the hands of each citizen, and the greater or
lesser space for intervention that is reserved for power. The structural path followed
is combined with that of freedom and equality of humans whose social life affects all
individuals and finds the capacity to aspire to the highest level of dignity.23
This needs to be completed with the idea that emerged in the 19th century, i.e., that
the fight for freedom shone alight on anew ideal: the citizen was no longer the mere
holder of civil rights that came with citizenship, but this also meant they had aset of
political rights among which the right to elect and remove rulers stood out. However, it
was in the 20th century that anew step was taken and citizenship came to be understood
18 C.S. Nino, Introducción al análisis del Derecho [Eng. Introduction to the Analysis of Law], Barcelona 2013, p. 32.
19 G. Lumia, Principios de Teoría e ideología del Derecho [Eng. Principles of Legal Theory and Ideology], Madrid 1993,
p. 113ff.
20 G. Bueno, El universo axiológico [Eng. The Axiological Universe], “Dianoia” 1981/27, p. 233ff.
21 C. Grzegorczyk, Théorie générale des valeurs et le droit [Eng. General Theory of Values and Law], Paris 1982, p. 40ff.
22 A.E. Pérez Luño, Lecciones de Filosofía del Derecho [Eng. Lessons of Philosophy of Law], Seville 2006, pp. 124–125.
23 D.D. Raphael, Justice and Liberty, London 1980, p. 28ff.
43
The Systematization of Legal Values around Justice
as aguarantee of economic and social rights, entailing an innovative development for
the new generation of human rights.24
Delving deeper, we can argue that social freedom involves three kinds of relation-
ships: exchange between equals, organization of the individual within the community
and belonging to the community. These are relationships of coordination, participa-
tion and integration, corresponding to the species of commutative, distributive and
general justice.25 As Brian Z. Tamanaha says, there are three basic principles of the
rule of law: the government being limited by the law; legality consisting of abroadly
legitimized normative system of ageneral and coercive nature; and the rule of law
that implies that legal rules are premised on rationality, so that there is an appeal
to reason in acting.26
In another facet of the analysis and in relation to rights, there are differences
between the liberal, protective and republican models of freedom. Indeed, if the most
liberal conception of autonomy is presented by Kant, the most republican orientation
we would find in Rousseau who sets out from the principle of the constitution of
civic autonomy and establishes an internal connection between popular sovereignty
and human rights. He considers that through the social contract life is given to the
political body and popular sovereignty can be expressed exclusively by the universal
and abstract language of laws, since there is no general will regarding any particu-
lar object.27 According to Rousseau, the exercise of political autonomy cannot be
conditional on the existence of innate rights, but the opposite occurs, the normative
content that contains the idea of human rights is extracted in the form of realization
of popular sovereignty.28
The liberal and protective archetypes refer to the creation of afreedom-defining
scope of non-interference, with the difference lying in the attitude that the state must
maintain. In the first, political power is attributed the role of policing and arbitrating so
it can act in the cases in which some interference, labelled as illegitimate, takes place.
However, the protective model takes into account the fact that the effective enjoyment
of the aforementioned sphere must be made possible, therefore, the public authorities
must establish the necessary conditions to make it possible.
Finally, in the case of republican freedom, the concept that is defended is that of
non-domination, the reason why the right to participation is in aspecial place, with the
rights being institutions or constituting an ordering of value.29 The republican ideal
considers that the formation of political will and opinion in the public sphere and in
parliament is due to the structure of apublic communication aimed at mutual under-
standing.30
24 A.E. Pérez Luño, La tercera generación de derechos humanos [Eng. The Third Generation of Human Rights], Cizur
Menor 2006; M.E. Rodríguez Palop, La nueva generación de derechos humanos. Origen y justificación [Eng. The New
Generation of Human Rights. Origin and Justification], Madrid 2002.
25 L. Legaz, Filosofía del Derecho [Eng. Philosophy of Law], Barcelona 1979.
26 B. Tamanaha, On the Rule of Law, History, Politics, Theory, Cambridge 2010.
27 J.J. Rousseau, The Social Contract..., II, VI.
28 See: J. Habermas, Derechos humanos y soberanía popular: Las concepciones liberal y republicana [Eng. Human Rights
and Popular Sovereignty: The Liberal and Republican Concepts], “Derechos y Libertades” 1994/3, p. 225ff.
29 M.C. Barranco, El concepto republicano de libertad y el modelo constitucional de derechos fundamentales [Eng. The
Republican Concept of Freedom and the Constitutional Model of Fundamental Rights], “Anuario de Filosofía del
Derecho” 2001/XVIII, pp. 209–210; J.F. Laporta, Sobre el uso del término ‘libertad’ en el lenguaje político [Eng. On
the Use of the Term “Freedom” in Political Language], “Sistema” 1985/67, pp. 23–43.
30 J. Habermas, Derechos humanos…, pp. 225–229.
44 M. Isabel Garrido Gómez
2.2.2. Equality
However, these conceptions of freedom must be complemented by the value of equal-
ity. In this regard, when we give ajudgment based on equality, it is impossible to avoid
carrying out arelational operation, making it clear that an evaluative judgment is con-
summated in which certain inherent facts and inferences are valued. Equal treatment
will be achieved when Aand B are treated equally by C, if C gives the same benefit or
specific burden to Aand B. Whether Aand B receive an equal distribution will depend
on the rule that is applied.31 The principle is broken down into the obligation of the
legal system to prevent any form of negative discrimination from being regarded as
positive apriori, and in the implementation of positive discrimination in cases that have
traditionally involved situations of inequality.
Within this approach, the differentiating legal treatment can be derived from the
comparison or interpretation of various normative orders to obtain from this compar-
ison the appearance of aconstitutionally reprehensible inequality and asituation that is
de facto not directly attributable to the rule, even when it is in relation to the perform-
ance of the interpretation and application of regulations. In addition, the origin of the
differentiating legal treatment must be derived from the law in aclear, precise and
direct way, which prevents its inclusion in the prohibited area of the treatments that
diverge and derive from the normative succession and the change in the comparable
treatment of situations.32
In this sense, the question is what duties are imposed in most constitutions? To answer
this, it is necessary to address the issue that the pending task is to make constitutional
equality known as avalue, principle and right, embodied in the dimensions of demo-
cratic and social freedom. In its liberal dimension, the connection is established with the
prohibition of arbitration at the time of creating the rule that includes the difference
and at the time of its application. In ademocratic structure, it is not permitted that
certain minorities or disadvantaged social groups isolate themselves and, in social terms,
equality legitimizes an unequal right to guarantee equal opportunities to disadvantaged
individuals and groups, dimensions that are based on human dignity such as the basis
of the political order and social peace.33
However, if it is true that equality has an older historical background as aprinciple, it
is also true that it is understood as the right of citizens to equal treatment by legal rules,
without any kind of privilege. This normative content obliges and, at the same time, limits
the public authorities who must respect it. Consequently, the legal consequences of the
same facts must be treated identically, so that, in order to differentiate, there must be
asufficiently strong and reasonable justification, in accordance with generally accepted
criteria and value judgements, with consequences that would not be disproportionate.34
31 F.E. Oppenheim, Igualdad [Eng. Equality], in: N. Bobbio, N. Matteucci (eds.), Diccionario de Política [Eng. Policy
Dictionary], Vol. 1, Madrid 1982, p. 803.
32 M. Rodríguez-Piñero, M.F. Fernández López, Igualdad y discriminación [Eng. Equality and Discrimination],
Madrid 1986, p. 41ff.
33 J.M. Bilbao Ubillos, F. Rey Martínez, El principio constitucional de igualdad en la jurisprudencia española [Eng. The
Constitutional Principle of Equality in Spanish Jurisprudence], in: M. Carbonell (ed.), El principio constitucional de
igualdad. Lecturas de introducción [Eng. The Constitutional Principle of Equality. Introductory Readings], City of Mexico
2003, p. 106.
34 On the subject of equality see: M.I. Garrido, La igualdad en el contenido y en la aplicación de la ley [Eng. Equality in
the Law and in the Application of Law], Madrid 2009, pp. 19–183.
45
The Systematization of Legal Values around Justice
2.3. Special consideration of justice and legal security
Security has been understood theoretically as subordinate to justice by some authors,
although in concrete situations they make security prevail over justice. From this point
of view, it is true that, at times, it is deemed that order and peace are superior, but the
evaluation that is then carried out is the embodiment of the normative in intrinsic terms.
This is the case of Saint Augustine,35 for whom justice is the path that leads to peace.
However, subsequently it is common to see references to security, order and peace
based around external social relations such as conflict resolution and the balancing of
interests. Thomas Hobbes and Hans Kelsen,36 for example, understand peace as the
ultimate purpose of law. Going one step further, justice will be understood in various
ways, agreeing to seek the general interest, the result of attending to the needs and
aspirations of people who are individuals and who simultaneously form part of society.
The concepts of security and certainty are integrated into asingle criterion and are
combined to the point of being confused in common language. In the sphere which
we are now contemplating, the reasoning is as follows: recognizing that the legal pos-
tulate of social conservation is directed towards the achievement of peace, peace is
to be defined as the principle that argues for asociety’s pursuit of its own maintenance,
made explicit in both asubjective and an objective dimension.37 Thus, it is common
to distinguish between security as asynonym for certainty and absence of doubt, and
security as asynonym for absence of fear, as the awareness that things are safe and that
the requirements considered fundamental by man are protected. Others differentiate
between security as protection that produces order and certainty (if we look at it from
an objective perspective); and as the absence of doubt and fear (if we look at it from
asubjective point of view).38
With this vision and with reference to legal certainty, law constitutes an organizing
framework for activities, clarifying the position of each one of them and thus setting
the scope of their activity based on the protection assured to each individual and to the
rights vested in them. The legal system must consistently take into account the set
of physical, psychological and socioeconomic considerations, and must create aseries
of duly ordered directorates when it is necessary to establish alegislative policy that
favours its objectives.
Thus, the law needs to change continually in line with new social needs. Thus, if the
aim is to create a true and secure system, there is a given margin of uncertainty and
insecurity so that it is possible to make progress with acloser approach to the values
one is trying to achieve.39 The idea of legal security arises as aresult of an awareness
of the importance of the law itself having asecure extent, as ameans of avoiding harm
to freedom, equality and, in short, the dignity of the subjects of the law. In this way,
the elements of legal security are legal certainty, legal effectiveness, and the absence
of arbitrariness.40 In line with the above, alaw which is disobeyed does not generate
35 Saint Augustine says: “Ordo est parium disparium quererum sua cuique loca tribuens dispositivo”, Saint Augustine,
The City of God, Peabody (Mass.) 2009, XIX, XIII, 1.
36 T. Hobbes, The Elements of Law, Natural and Politic, New York 2009; H. Kelsen, What is justice?, Oxford 2013.
37 J. Guasp, Derecho [Eng. Law], Madrid 1971, p. 315ff; F. Arcos, La seguridad jurídica…, p. 35ff; A.E. Pérez Luño,
La seguridad..., p. 30ff.
38 E. Díaz, Sociología y Filosofía del Derecho [Eng. Sociology and Legal Philosophy], Madrid 1993, p. 44.
39 R. García Manrique, El valor de la seguridad jurídica [Eng. The Value of Legal Security], Madrid 2012, p. 50ff.
40 R. García Manrique, El valor…, p. 20ff.
46 M. Isabel Garrido Gómez
certainty of order, nor does it provide citizens with data from which to foresee the
conduct of the normative powers or that of other individuals.41
Furthermore, if normative certainty makes possible the predictability of the law
and the certainty of the action, effectiveness is necessary so that there is confidence
in the legal system that makes reference to the force it contains.42 On the other hand,
the security of the law requires that the public powers carry out acts of production and
application of legal norms in anon-arbitrary manner. The certainty and effectiveness of
the law refer to different aspects of the formal structure, the duration and the empirical
existence of the rules; but they also do so in the form of the acts by means of which
those rules are created or applied.43
According to what has been argued, the dimensions of justice are different depend-
ing on whether it regards one class or another. By way of illustration, commutative
dimension refers to freedom of work, property, hiring, inheritance, etc. The dis tributive
dimension refers to the rights of political participation (to elect and be elected), to be
obeyed when you have power and to be served when you are amere citizen. And
the general dimension refers to the rights of education, protection of families and
disadvant aged groups, access to culture and all the freedoms related to the exercise of
spiritual, ethical, aesthetic, and religious faculties.
Therefore, as aresult of the opposition formulated between security and justice, an
adequate conception needs to maintain that neither of them forms awatertight com-
partment, nor do they constitute opposing doctrinal positions, but rather that justice
formally enshrines security.44
3. Validity and justice of legal rules. Akey to understanding the systematization
of legal values around justice
As Norberto Bobbio45 points out, the law has to be viewed from different points of view
based on validity, justice and efficacy, which, in turn, belong to different disciplines
and research methods that cannot be confused with each other or ignored. These are
related to and coincide with, respectively, science, philosophy of law and legal sociology.
Arule is valid if it has been promulgated by the competent bodies and in line with the
ordered procedures; if it is fully in force, without having yet been subject to an express
or presumed derogation from other regulations, avalidity that is not incompatible with
the lack of normative effectiveness; and if there is an absence of contradiction with the
hierarchically superior rule and other preferential legal norms. The last of these requi-
rements is of amaterial nature and the first two are of aformal nature.46
41 L. Lombardi Vallauri, Saggio sul diritto giurisprudenziale [Eng. Essay on Jurisprudential Law], Milan 1975, p. 575.
42 T. Geiger, Estudios preliminares de Sociología del Derecho [Eng. Preliminary Studies of Sociology of Law],
Granada 2001, pp. 89–90.
43 See: Judgments of the Spanish Constitutional Court: of 20 July 1981 (27/1981), and of 30 November 1982 (71/1982).
In the same line see Judgments of the Spanish Constitutional Court: of 7 May 2012 (94/2012), and of 11 December
2015 (296/2015). V. Zapatero, M.I. Garrido, F. Arcos, El Derecho como proceso..., p. 212ff.
44 G. Peces-Barba, Los valores superiores [Eng. The Higher Values], Madrid 1984, p. 100ff.
45 N. Bobbio, Justicia, validez y eficacia [Eng. Justice, Validity and Effectiveness], in: N. Bobbio, Teoría general del Derecho
[Eng. General Theory of Law], Madrid 1993, pp. 33–51.
46 E. Díaz, Sociología y Filosofía del Derecho [Eng. Sociology and Philosophy of Law], Madrid 1971, p. 67ff. See also:
F. Ost, Essai de définition et de caracterisation de la validité juridique [Eng. Test of Definition and Characterization of
Legal Validity], in: Droit et pouvoir [Eng. Law and Power], Vol. 1, Brussels 1987, p. 115, reflect the legal system through
three interrelated circles pertaining to legality, effectiveness, and legitimacy respectively.
47
The Systematization of Legal Values around Justice
For positivism, the problem of validity is related to its origin, since its first external-
izations would arise within the historical school, which appealed as avalidating structure
to the conditioning force of the historically individualized social process, from which the
purposes that give meaning to the ordering arise. But it was necessary to find arationale
that followed stricter formal reasons. This is the case with Austin’s thinking,47 which
focused on the dependence of validity on the strength of political power, i.e., the rules
are valid because they have been imposed by the politically legitimized assumptions for
this purpose, with this being the criterion of effectiveness. According to this doctrine,
the existence of sovereign power would legitimize the validity of the positive law as
awhole, and the positive-formal structure of the legal organization would be the val-
idating proof of each rule. For this reason, the concept of validity already appears here
as strictly formal.
Kelsen’s48 formalist thought went astep further and assumed that legal validity
is, according to his concept of legal norm, aconcept of alogical-hypothetical nature.
Effectiveness refers to actual compliance with the law. Basically, it consists in the con-
formity or adequacy of the recipients’ conduct with what the rule prescribes. It is inter-
preted in the sense of the heteronomy of the law with respect to society, as it is imposed
by public order, or in that of its autonomy with respect to society. Although, in fact, the
concept that interests us in the formalist perspective is the meaning that such observ-
ance acquires by being relevant as alegal matter.49
However, as has been seen, validity only instructs that the legal norm meets the
requirement of external legality. This theory does not resolve, without further details,
whether observance is owed to such arule, so that the issue of legality-legitimacy arises,
now turned into aproblem since new legal-political structures are imposed in which
the studied notions have to find an application. Specifically, the Congress of Vienna
(1814–1815) which, together with Talleyrand’s contribution, were those to which we owe
the principle of legitimacy as the title justifying the monarchical restoration.50
The law is configured as asystem of legality because the unity of an order is based on
afundamental rule –or rule of recognition according to the terminology used by Hart
–from which all the others emanate. The simple belief in legality is atranslation of
the positivist belief in the immanent rationality of the legal order, which has been
imposing aformalistic legalism. Thus, it would only be correct to speak of legitimacy
and legality as antithetical terms when expressing the opposition between natural law
and positivism.
Legitimacy can be critical, alluding to the conditions of arational morality, which
must or should comply with the positive law, so ajust legal order will be so from the
perspective of some conception of political morality. Legitimacy can also be positive,
when it refers to asystem of values that are in the law in alignment with those that are
in force throughout the bulk of society. And also to the formal legitimacy that refers
47 M.J. Falcón, Concepto y fundamento de la validez del Derecho [Eng. Concept and Foundation of the Validity of Law],
Madrid 1993, p. 29ff. With respect to Austin see: J. Austin, The Province of Jurisprudence Determined, Cambridge 2009,
p. 144ff.
48 See the critic to Kelsen in M. van de Kerchove, Les deux versions de la théorie kelséniene des conditions de la validité
d´une norme juridique [Eng. Two Versions of the Kelsenian Theory about the Conditions for the Validity of aLegal Norm],
Leuven 1970, p. 73ff.
49 As Falcón says: legal effectiveness refers to the ontological or realistic basis of validity as effectiveness or obedience
to the law. M.J. Falcón, Concepto y fundamento…, pp. 43ff.
50 R. Alexy, El concepto y la validez del Derecho [Eng. Concept and Validity of Law], Barcelona 2004, p. 45ff.
48 M. Isabel Garrido Gómez
to the minimum level of justice that the legal order provides because it is an order and
it is summarized in the idea of legal security.51
In summary, in this order of ideas, one of the first problems that arises is that of the
conditions that arule must meet so that we can say that it is valid, being at this point
where it is convenient to distinguish between validity as belonging and validity as ex -
istence. The first implies that arule is valid or, in other words, that it belongs to anorma-
tive system if it meets the conditions already known as created by acompetent authority,
having observed certain procedures established in advance, not having been repealed
subsequently and not being contradicted by any other higher rule.
Now, thus presented validity, that is, as synonymous with belonging to asystem, the
problem that arises is that it does not explain the status of some rules that actually exist
in all legal systems, such as Kelsen’s basic founding norm or Hart’s rule recognition. Nor
does this concept include what could be called pathologies, i.e., unconstitutional rules,
the unconstitutionality of which has not been declared by the constitutional courts or
final judgments that represent aflagrant violation of the above criteria. Neither do they
meet the aforementioned requirements nor are they valid in this sense of belonging
to asystem, but they do exist.52
Asecond concept of validity assumes that arule is valid when, in fact or by force of
fact, it is applied or is applicable. This is what López Calera53 calls the true validity of
rules, with Prieto Sanchís extracting the following problem:
this shows us that the two concepts of validity or existence are completely different. The
first is based on anormative judgment and, in principle, does not require that the valid rule
be observed by the citizens or applied by the legal operators, especially by the judges; it is,
if it can be said, an ideal or potential existence. The second, on the other hand, is based on
ajudgment of fact or empirical existence: it can then be said that it is generally obeyed and
that those who do not obey it suffer some undesirable consequence.54
It is therefore not enough to consider the validity of the rules; asecond evalu-
ation criterion is that of their effectiveness. This problem is whether or not arule is
obeyed by its recipients and whether, in the event of disobedience, the coercive meas-
ures provided to enforce compliance are applied –on this typology one has to go back
to American legal realism.55 Effectiveness it thus understood as the correspondence
between the normatively anticipated behaviour model and the actual behaviour of the
recipients. It is up to the theory of law to answer the question, which is keenly disputed,
of who are the recipients; and to the sociology of law to answer the question of why
some rules are obeyed more or less.56
Last but not least, athird criterion is that of the justice of the rules, or what Calera
names moral validity, concerning the reasons why those rules are worthy of being
obeyed. An illustrative example is Gustav Radbruch’s two-part formula: the intolerance
and denial formulas. With regard to the first, it is said that positive laws lose their legal
51 L. Prieto Sanchís, Apuntes de Teoría del Derecho [Eng. Notes on the Theory of Law], Madrid 2016, pp. 101–103.
52 H.L.A. Hart, The Concept…, p. 201ff; H. Kelsen, Pure Theory..., p. 201ff.
53 N.M. López Calera, Filosofía del Derecho [Eng. Philosophy of Law], Granada 1997, p. 88; K. Tuori, Critical Positivism
and Modern Law, London 2016, p. 123.
54 L. Prieto, Sanchís, Apuntes de Teoría…, p. 17.
55 N. Bobbio, Justicia, validez…, p. 35; J.H. Schlegel, American Legal Realism and Empirical Social Science,
Chapel Hill 1995, pp. 20–25.
56 P.E. Navarro, La eficacia del Derecho [Eng. The Effectiveness of Law], Madrid 1990.
49
The Systematization of Legal Values around Justice
validity when the contradiction with justice occurs and reaches an unbearable degree.
With regard to the second, the legal nature of positive laws fails to be recognized if, in
their construction, they seek to deny the equality of the core of justice.57 To pose whether
arule is fair or not is to base the problem around the necessary adaptation of being
to the duty to be, which is one of the most difficult to answer, to the extent that some
will think that it is atask which is little short of impossible. But trying to find answers
to this crucial question is an important part of the role of the philosophy of law.58
4. Just law as an expression of the embodiment of legal values
It can be deduced from the foregoing considerations that the establishment of alaw is
synonymous with justice, thus raising the question of whether it is possible to achieve
justice or injustice of the law in arational way. The answers that have been given have
varied greatly. From that point of view, the term “just law” comes from the work pub-
lished by Rudolf von Stammler in 1902. For this author, just law is tantamount with
positive law in historical terms, but not all positive law is made up of rules oriented
towards the notion of pure community. What we see in justice is the ideal born to sur-
vive in reality and in the law, which proposes agood social order that is better than the
others. There is really no just law in itself, its idea is the criterion that assesses positive
legal systems.59
Along these lines, the justice of law is equivalent to that of whether it is internally
founded, or if its claim to be obeyed, or its claim of normative validity is objectively
justified. But what Stammler60 wanted was to find an intermediate way out between the
idea of anatural law that is valid per se, regardless of time and space, and positivism.
Considering that justice is in the interest of the law, which is an ad alterum adjustment,
acertain equality and proportionality; the conclusion is reached that positive law con-
figures apoint of view on justice, this being aconstitutive principle of the law which
brings it to life and takes on its vital fulfilment.
The ways of understanding the justice-law connection are expressed in four best-
-known positions. Positivism defends aseparatist thesis. Idealism opts for aformally
equalizing thesis. Critical formalism describes aformally separating position. And,
finally, natural law uses an equalizing criterion but moves away from idealism because
it does not suppose that positive law loses its legal status to the extent that the idea of
justice is not realized or, at least, insofar as it is opposed to it.61
Whatever the position, it is no less true that the question of knowledge of justice
and its very consistency are conflicts that are far from having been resolved to the satis -
faction of all. The law is fair because it contains justice while, for the same reasons, every
law is unfair because it is always an iustum imperfectum, it is not only the discrepancy
between the ideal and the realization that can create areason for negative evalua-
tion, but also, taking astep further, under the logical aspect of justice, latent injustice
57 G. Radbruch, Vorschule der Rechtsphilosophie [Eng. Introduction to the Philosophy of Law], Heidelberg 1948.
58 N.M. López Calera, Filosofía…, p. 89. See: V. Zapatero, M. I. Garrido, F. Arcos, El Derecho como proceso…, p. 18ff.
59 R. von Stammler, Tratado de Filosofía del Derecho [Eng. Treatise on Philosophy of Law], Madrid 1930, p. 210ff;
L. Recaséns, Panorama del pensamiento jurídico en el siglo XX [Eng. Overview of Legal Thinking in the 20th Century],
Vol. 1, City of México 1963, p. 62.
60 R. von Stammler, Tratado de Filosofía…, p. 209.
61 B. Barry, Theories…, p. 20ff.
50 M. Isabel Garrido Gómez
emerges.62 In this way, when we study the problem of justice of positive law, we will
refer to the ontic problems (the law performs acertain social function) included in that
word, and to another series of ontological aspects (the structure of the law), closely
linked to the former because the result that society will obtain from the validity of the
legal norms depends on its success.
Giuseppe Lumia claims that there is adouble question, i.e., “What are fair actions
or rules?” and “On what justification does the answer rest?”, with the answer depending
on the position adopted when conceiving the law. 63 Given this approach, anew ques-
tion arises, what does the recipient of an unfair legal rule have to do? In general, the
binding nature of laws is highly conditioned by ideological issues and by the prevailing
political regime. In this way, any disobedience to the legal norms emanating from the
state is justified as long as such disobedience is guided by higher principles and values,
provided that these do not appear clearly endowed with the highest possible security. In
some cases, the strongest duty will be to seek to ensure the best functioning of the state
system, obeying it, but there is occasionally aright to display disobedience to bad laws,
when such evil is contrasted by comparison with neglected values, when these values
should have been promoted by aproperly organized state.64
From this perspective, there are three main representations of the denial of legal duty:
Right of resistance. This is understood as aclass of category and includes the forms
of disobedience to the rules, or it is understood as disobedience that seeks achange in
the political or governing system. This double externalization of the right of resistance
is of little relevance. As acategory, because the doctrine deals with current forms of
resistance to the rules, civil disobedience, and conscientious objection; and as aspe-
cies, because neither the doctrine nor the legal system usually accept this figure when
situated outside the constitutional order.
At the contemporary time, majority of authors understand that in any case the right
of resistance would be configured as aright-duty of constitutional protection. Therefore,
the protected legal right is the constitutional order, and the function of this “right” would
consist of aguarantee, with dimensions of asubsidiary and reactive nature, of the order
and structural principles of the constitution and, mainly, of fundamental rights.
Civil disobedience. This is aform of common resistance, since it is used by minorities
in defence of marginal social interests not protected by the legal system. It belongs
to the group of direct action procedures, and its objective is to influence public opinion
in order to carry out aregulatory modification or to illegally exercise power.
From this perspective, the one who carries out the protest is the citizen, in apublic
and peaceful manner. The offence in which civil disobedience consists can refer to the
current regulations, and also to the non-existence of alegal norm, regulation or policy
in acertain sense. It should also be noted that adistinction must be made between
adirect civil disobedience and an indirect civil disobedience. The first consists in the
infringement of arule which is the object of protest, and the second in the disobedience
of arule other than the one against which one wishes to protest.
62 R. Alexy, La pretensión de corrección del Derecho. La polémica sobre la relación entre Derecho y moral [Eng. The Claim
of Correctness of Law. The Controversy about the Relationship between Law and Morality], Bogotá 2001, p. 25ff; on the
subject see: L. Legaz, Filosofía…, pp. 350–351.
63 G. Lumia, Principios…, p. 117ff.
64 N. Martínez Yáñez, La obediencia al Derecho en la España democrática [Eng. Obedience to Law in the Democratic
Spain], Madrid 2000, p. 16ff.
51
The Systematization of Legal Values around Justice
Conscientious objection. Conscientious objection is conceptualized as asubjective
right that aims to achieve dispensation from alegal duty, or exemption from liability,
when the breach of duty has been consummated. Its meaning refers to the refusal
to comply with orders or rules, or to perform acts or services on ethical or religious
grounds. It therefore arises in relation to apersonal performance.
This is incorporated into the legal systems of democratic systems. This is the case
of the obligation to provide military service and cooperation in the media ideologic-
ally contrary to the objector, to which we can add the case of professional practice in
decriminalized matters. In these cases, the law frames the objection within rational
limits, under the pretence of preventing fraud in the law and false conscience without
violating the consciences of individuals.
In short, in order to give acorrect answer, it will be necessary to weigh the toler-
ance of certain evils in order to avoid agreater evil, or not to prevent it; the difficulty
or impossibility of achieving abetter and safer judgment than that of the parties who
decide on the exercise of arelationship, or the secondary disposition of wealth or assets;
and sustaining the fact that areason of judicial economy indicates the inconvenience of
being able to operate the declarative or coercive apparatus for minor disputes.65
5. Final note
In order to make it possible to enshrine the legal values systematized within the legal
systems, all legal operators must act in acomplementary manner, in accordance with the
exercise of their functions, thus making justice real and effective. In this way, complete
justice will be achieved that takes into account the law as asocial fact.66 Establishing the
relationship between law and morality, the position we may adopt in connection with
iusnaturalism or positivism is fundamental. From our point of view, the relationships
between morality and law are clear and similarities exist between the two normative
orders. For example, this occurs in deontological analysis, prescriptions and judgments
on duty, the notion and forms of normative conflicts, the reasons for action, or in some
concepts such as authority, duty, coercion, autonomy, consent or responsibility. Together
with what has been stated, positive law is developing amorality.67
From this point of view, critical positivism may even be agood position, because in
it the validity of rules can depend contingently on their moral validity. In cases where
there are legal precepts that incorporate moral concepts or that require moral argu-
mentation to be applied, the legal validity of some rules will be linked to morality and
will depend on their adjustment to it. But, if there were no such legal precepts, legal
65 M.J. Falcón, La desobediencia civil [Eng. Civil Disobedience], Madrid 2000, pp. 22, 40ff; E. Fernández, La obediencia
al Derecho [Eng. Obedience to Law], Madrid 1987, p. 40ff; M. Gascón, Obediencia al Derecho y objeción de conciencia
[Eng. Obedience to Law and Conscientious Objection], Madrid 1990, p. 78ff; J. Malem, Concepto y justificación de la
desobediencia civil [Eng. Concept and Justification of Civil Disobedience], Barcelona 1990, p. 30 ff; F. Ovejero, ¿Derecho
de resistencia orebelión? [Eng. Right of Resistance or Rebellion?], in: R. Gargarella (ed.), El derecho aresistir el Derecho
[Eng. The Right to Resist the Law], Buenos Aires 2005, pp. 149–156; J.I. Ugartemendía, El derecho de resistencia y su
“constitucionalización” [Eng. The Right of Resistance and Its “Constitutionalisation”], “Revista de Estudios Políticos”
1999/103, pp. 237–238.
66 J. Carbonnier, Sociología del Derecho [Eng. Sociology of Law], Madrid 1982; R. Cotterrell, Introducción ala Sociología
del Derecho [Eng. Introduction to the Sociology of Law], Barcelona 1991; R. Treves, Sociología del Derecho. Orígenes,
investigación, problemas [Eng. Sociology of Law. Origins, Research, Problems], Barcelona 1988, pp. 5–6.
67 S. Álvarez, La relevancia de la filosofía moral para el Derecho [Eng. The Relevance of Moral Philosophy for Law],
“Anuario de Filosofía del Derecho” 2008–2009/XXV, p. 410.
52 M. Isabel Garrido Gómez
validity would not depend on morality. Law must take into account morality, to the
extent which respecting it is of importance to the general interest of society, he must
choose the prescriptions that he wishes to sanction.68
In relation to the truth-justice tandem, the latter is still the most fundamental and
independent value of human subjectivity. We are directed towards the agreement
reached according to the rules of the democratic game.69 More particularly, with the
aim of systematizing the legal values around justice from our position, it is important
to keep in mind that the constitution is aspace in which consensus is manifested and is
understood as apoint of reference for what is fair, the result of the discussion between
the different conceptions of justice that concur in society, as afundamental law that
establishes aframework of material and procedural unity, overcoming the formal and
hierarchical content.70
In this view, the concepts of security and certainty become complementary. The
notion of security is born in social and individual correlation to the sanctioning force
of law. Therefore, legal security from abroad point of view serves as acomplement and
reinforcement of freedom as the core of fundamental rights, assuming acertainty that
can be broken down into several sequences (about the validity and enforceability of the
rule of law, about the duration in time of the rule, about the meaning of the rule, about
the behaviour through which the power is exercised, about behaviour in the exercise
of the law and of legal duty, and about the behaviour when fulfilling an obligation).71
And with regard to the complementarity stated in relation to equality, an illustrative
example is shown by using Ferrajolian terminology in the reference made to the primary
guarantees, prohibitions and obligations that correspond to subjective rights and, in
parallel, to the relations between what is permitted and what is forbidden, and between
what is allowed and what is not obligatory.72
In short, it can be concluded that the values selected in this article are indivisible
and interdependent, forming part of the foundation of legal systems, and that if any of
them is missing or violated, justice will be affected to agreater or smaller extent.
The Systematization of Legal Values around Justice
Abstract: This article underlines the centrality of justice when understanding it as an overarching
value that globalizes and systematizes all the others. In particular, it analyses what happens
with legal security as aformal enshrinement of justice, and freedom and equality as one of
its main material manifestations. From this point of view, it becomes clear that the resulting
systematization depends on the type of state currently in force. This is joined the diverse ways
of understanding justice and the evaluation of the validity-justice relationship depending on
68 J.M. Vilajosana, Identificación y justificación del Derecho [Eng. Identification and Justification of the Law],
Madrid 2017, p. 80.
69 A. Pintore, Law without Truth, Liverpool 2000, p. 223ff.
70 L. Prieto Sanchís, Constitucionalismo y positivismo [Eng. Constitutionalism and Positivism], City of Mexico 1999, p. 50.
71 F. López de Oñate, La certeza del Derecho [Eng. Certainty of Law], Buenos Aires 1953, pp. 73–74; G. Peces-Barba,
Curso de derechos…, p. 246. On the statements of legal certainty, see literally E. Zuleta, Función certificadora y equidad
[Eng. Certifying Function and Equity], in: M. Laclau, D. Cracogna (eds.), Teoría general del Derecho. Sus problemas
actuales, Estudios en homenaje aJ.C. Cueto Rúa [Eng. General Theory of Law. His Current Problems, Studies in Homage
to J. C. Cueto Rúa], Buenos Aires 1986, pp. 258–259.
72 L. Ferrajoli, Los derechos fundamentales en la teoría del Derecho [Eng. Fundamental Rights in the Theory of Law], in:
A. de Cabo, G. Pisarello (eds.), Los fundamentos de los derechos fundamentales [Eng. The Foundations of Fundamental
Rights], Madrid 2013, p. 192.
53
The Systematization of Legal Values around Justice
the different ways of understanding it. Likewise, the ways of understanding the justice-law
connection are linked to the concept of the law that we uphold. Finally, it is concluded that
legal operators are called to administer justice in acomplementary regime, with legal security
serving to reinforce freedom, as is the case with regard to equality.
Keywords: systematization, legal values, justice, complementarity of values, legal operators.
BIBLIOGRAFIA / REFERENCES:
La pretensión de corrección del Derecho. La polémica sobre la
relación entre Derecho y moral.
!"#!$%
& El concepto y la validez del Derecho. $
'!
(#)* +,- . # /!/0 1
Anuario de Filosofía del Derecho 25&-,&2
3!42Summa Theologiae.5678
!9La seguridad jurídica. Una teoría formal.:8!
!-Nicomachean Ethics.5678;/"#!!!
!0!Sobre el concepto y el fundamento de los derechos: Una
aproximación dualista.:8!
):--&Introducción al Derecho.
!<=Lectures on Jurisprudence: Or The Philosophy of Positive Law
#%856<!41.68$ 1
! < - The Province of Jurisprudence Determined. %
%"#!!!
: % $
! 1! /! Anuario de Filosofía del
Derecho 18=,2
-+- Theories of Justice: A Treatise on Social Justice #
8>.!!"#!/%/!!
"! < : :0) 9 ? $ !
@! !A. B : % El
principio constitucional de igualdad. Lecturas de introducción.:
%!C5 ! 1!D!
5--?Teoría general del Derecho ??,=:
'-+$#!C . Dianoia27??,=
%<-+Sociología del Derecho.:
% :4- Treatise on Rhetorical Invention and Treatise on Topics.
!
%--Introducción a la Sociología del Derecho.
0)$-ESociología y Filosofía del Derecho.:$4!
0)$--?Sociología y Filosofía del Derecho. :$4!
9 C:<--&Concepto y fundamento de la validez del Derecho.:
"#!%!*# !9
1
9 C:<La desobediencia civil.:: !
9)$-+ELa obediencia al Derecho.:%#!
9@.?.! 1!/!0 1B
% ' ! ! Los fundamentos de los derechos
fundamentales. :
' 0:3 El valor de la seguridad jurídica. :B!
':B- La igualdad en el contenido y en la aplicación de la ley.
:8!
'! C:-- Obediencia al Derecho y objeción de conciencia. :
%$!!0 !%! !
' 4 Estudios preliminares de Sociología del Derecho. '
%!$
') )8%-+Théorie générale des valeurs et le droit.!.
FGHGIJKLMNLMNIOPQMLQMNLMRSIPTUISNLHVLW
'!<-EDerecho.:
D!<--& 1!1!!0.! !
Derechos y Libertades 3, =,?
DD.The Concept of Law.;/;/"#!!!
D! 1.État de droit – Rechtsstaat – Rule of Law.!)
D!4-The Elements of Law, Natural and Politic.5678
X!D?What is justice? ;/41.68$ 1
B!!<Derecho romano. *
XBEThe Metaphysics of Morals.5678
X!D-Pure Theory of Law.%856<!.68$ 1
# X 1# : -E Les deux versions de la théorie kelséniene des
conditions de la validité d´une norme juridique..#
.<9-+?*!YZ[@0 .
Sistema 52?>&?
.).-E-Filosofía del Derecho. ! 1
. \ . -E= Saggio sul diritto giurisprudenziale. :
'//]
.C)%5:--EFilosofía del Derecho.'
.C) ;A 9 -=? La certeza del Derecho. !! $ !
^SI_NPVJTM`SIOUJabcGIPVJW
.'--?Principios de Teoría e ideología del Derecho.:
.)$.DD8X<!-+- New Directions in Human
Rights.11"#!/!#!!
:<--Concepto y justificación de la desobediencia civil.
:0)7A)5La obediencia al Derecho en la España democrática.
:8!
5# $ -- La eficacia del Derecho. : % !!
! !
5%*?Introducción al análisis del Derecho.
;1 9 $ -+ B B 5 5 : !
Diccionario de Política#:*\!
;!9-+E$!!Y/ !#Y@3B
Droit et pouvoir#!!!$*,*
;#@9=d 1!! CeB'El
derecho a resistir el Derecho.MfSLHOTMbPILTgMhPiOMjMklmPKJW
!,'-+&Los valores superiores.:4 !
!, ' --- Curso de derechos fundamentales. Teoría general.
hJNIPNgMnHPmLITPNJNMoJIKOTMpppMNLMhJNIPNMaMfOKLQ_HMqrPVPJKMNLKM`TQJNOW
Y).A$--La seguridad jurídica.
Y).A$=Derechos humanos, Estado de Derecho y Constitución.
:4 !
Y).A $ 2 La tercera generación de derechos humanos. %)
:)
Y) .A $ 2 Lecciones de Filosofía del Derecho. *#
:
Y).A$Teoría del Derecho. Una concepción de la experiencia
jurídica. :4 !
Law without Truth..#1%1! !
* 10! . --- Constitucionalismo y positivismo. % / :
! !9
* 10!.2Apuntes de Teoría del Derecho. :4
1'-&+Vorschule der Rechtsphilosophie. D
1-+Justice and Liberty..1
6!<A Theory of Justice. %418!!/D#
"#!!!
!Y!.-2?Panorama del pensamiento jurídico en el siglo XX #
oPQjMOrMhGsPVOgMkWtWMuOIIvJWM
0) : $ La nueva generación de derechos humanos.
Origen y justificación.:8!
0),A : 9) .C) : 9 -+2 Igualdad y
discriminación.:4 !
!! < < E The Social Contract or Principles of Political Right.
.
*!-The City of God.:D 8!
* 1<D--=American Legal Realism and Empirical Social Science.
%1D"#!/51%!!
#*-? Tratado de Filosofía del Derecho. :!
41On the Rule of Law, History, Politics, Theory.%
4#! -++ Sociología del Derecho. Orígenes, investigación, problemas.
4X2Critical Positivism and Modern Law..
"0<B---$ 1!! !w ! ) Cx
Revista de Estudios Políticos 103?E>?+
\@! < : E Identificación y justificación del Derecho. :
: !
y\':B !9! El Derecho como proceso
normativo. D!$"#!
y?Teoria e critica dello stato.B%!y!Lo stato
di diritto. Storia, teoria, critica. :9
y$-+2 9 C / 3 B :. %
!Teoría general del Derecho. Sus problemas actuales, Estudios en
homenaje a J.C. Cueto Rúa.!!D!
