The rule of law and the rule of morality

Law and morality are normative orders, diametrically opposite. Pretend The Law Is Moral or vice versa, it also implies the suppression of a legal norm, connoted by the fact that it is heteronomous, bilateral, objective, coercive, adopted by a constitutionally pre-established state body (in Panama, legislative), so that, through the process of law formation, Question.

This statement does not mean that they cannot there are laws or legal norms inspired by the preservation of a certain ethical and moral nuance. On the contrary, it would be a desirable desideratum, that is, that the laws were inspired by honorable and virtuous, right and wholesome commandments.

Furthermore, no law or legal norm can be inspired by what is bad, unfair, disloyal, etc. Laws must strive for good and seeking good and common prosperity must be his north. But it is clear to us that laws are not always inspired by good things, positive values ​​that make humanity what it is, and not something else. There are bad laws, perverse laws, immoral laws that violate the set principles of life and social behavior, something that is evident or obvious, above all, in the present times where every concept of glorifying good is irrationalized and idolized. the idea of ​​evil and through bad laws everything is justified.

However, I must clarify that it is one thing to try to adapt legal norms, laws, in the process of normative creation, in order to cover them with a moral profile or shade, and another thing to pretend that the legal norm, displaced in all its characteristics of its nature and formalityit ends as a norm of behavior or moral behavior, and is dethroned from the legal scene powerful lady law and its normative force.

This would inevitably mean that the codes and the whole set laws, absolutely all of them, end up in the trash, since man, society, will no longer need any legal order, since he will be subject to moral behavior, which, far from being enforceable, in a coercive way, will be left to the discretion of each person, autonomy and his own will. each individual,

generating cases and absolute anarchy. How can we maintain this if we prescribe as a rule: “That all men should be good” or, on the contrary, “That all men should be bad”, that this can be forcibly demanded? Mission Impossible. Kelsen He himself claimed that the legal norm par excellence is the norm contained in criminal laws, criminal types, because it is covered not only by legal regulation, but also by sanction and that between one and the other there is a nexum of causality, combining, almost perfectly, the three elements of the legal syllogism: Main premise, secondary premise and legal consequence (sanction). It is a categorical and demonstrative syllogism. Thus, we could never find the fulfillment of these elements of the syllogism in a moral normative order. Something that appears in a legal norm.

Once a legal norm has been formulated, that is, it has passed into the area of ​​the legal or legal system, it prevails, conditioned by its characteristics of actuality and effectiveness, formality and officiality, in addition to its ergas omnes effects (Good for everyone). So it is not possible A norm has a life of its own, with the intention of introducing or demanding, both from its content and from the recipient, ethical or moral behaviors that are not considered in the normative regulations.

It is, I claim, about some colleagues who warned that the person of the wife of v Former president She cannot run for office, claiming that it would be immoral or unethical or that it violates the democratic order. These are damning speeches typical of rebellion against the norm, the constitutional pantonorm. After the law is dictated, the Latin saying becomes: Dura lex, sed lex (It is a hard law, but it is a law). Nothing to see.

Constitutional norm (Article 193/Number 5) He did not establish any restrictions, not even moral ones, for the wife of the candidate for the president of the country. She, as a wife, does not enter into any kinship by consanguinity, this is not possible, since marriage creates definitive kinship only in relation to the relatives of one spouse in relation to the other spouse.

I repeat the concepts that I presented in May 2010 when I wrote an article published in this medium that I titled The Law Without Morals: The Perverted Law.

In that opinion piece, he argued that “lawyers know about the court an intellectual, that Hans Kelsen, the father of Puritanism normative or legal positivism par excellence, when we analyze the three

the fundamental principles on which the Romans based their legal behavior: do no harm to anyone -alterum non laedere-; giving to each what is his – suum cuique tribuere -, and living honestly – honest vivere, he warned that the latter has nothing or nothing to do with Law. Something like pointing out that the morality and honest or dishonest life of people is not an issue of interest

Right.” “It’s in Argentina Carlos Cossio, author of Ergological Theory of Lawin which the section or behavioral plexus acquires special importance and for this reason James Goldschmidt also goes beyond the idea of ​​the evaluative or axiological plexus as fundamental in the structuring of the legal norm.

Who’s right?” “I think the reign of positivism has been in decline for several decades. Reality has shown that law, which finds its expression in legal norms, cannot be separated or isolated from the highest principles of morality and ethics. Divorce law and morality It is a task with tragic consequences for humanity. The Law is dehumanized, the functional logic that preaches the human being, man, as the subject and recipient of the Law is perverted. It was Emmanuel Kant who sowed the sharp division between law and morality, highlighting the areas in which each reigned and preceded it. Bruno and Paruta in the Middle Ages.“

“Kelsen did not miss the opportunity to emphasize the idea and one of the first things, which of course should be covered in the introductory class at the Faculty of Law, is to teach first-year students, without further notice, that: “Law is objective, morality is subjective; Law is external, morality internal; he Law is heteronomous, morality is autonomous; Law is bilateral, morality is one-sided“From a formal perspective, this could indeed be so; however, trying to instill in people’s psyche that there is no marriage between law and morality seems to me an inconsistency that violates the very material logic of things in the legal world.

Therefore, I emphasize that our judges, prosecutors, lawyers, representativesespecially the latter, because the creation of a nation’s laws cannot, cannot, separate the realm of morality, honesty, at the moment when the Law is created – the task of the deputies -, at the moment when it is applied and interpreted – the task of prosecutors, judges and misdemeanor judges – and, finally, at the moment in which it is executed.

“Law under the influence of morality – as a thing evaluative- would tend to be more consistent and more honest, more identified with its exclusive subject and sole recipient: the human being. “I would stop being so dry, so gloomy and so perverse.”