LEGAL AXIOLOGY: HISTORY AND WHAT IT STUDIES - ARTE - 2024

The legal axiology is a branch of philosophy which studies the law, understand and make a critical analysis of the moral and legal values. It also deals with the problem of defining which of these values ​​must be considered for a "right model" to be correct. Legal axiology is also known as "fair law theory."

The word axiology derives from the Greek "aksía" which means value and "logos", which means study or treatise. Axiology in general, is a branch of philosophy that deals with the study of values.

Values ​​are important to preserve order and balance in any society and in life itself. Justice is a higher order value that shelters other values ​​such as respect, equality, equity and freedom. These are the so-called “legal values”.

Origin of legal axiology

It can be said that the philosophy of law was born in Ancient Greece, as it was the Greek philosophers who for the first time questioned themselves about the philosophical nature of law and justice.

The philosophy of law is intended to prosecute legal truths that are taken for granted. For example, what is dignity, equity or justice? What is a crime? Should a law be obeyed even if it is unjust?

Aristotle (384 BC-322 BC), who is considered the father of Western philosophy, defined justice as the action of giving each citizen what they are entitled to according to their actions and contributions to society.

Juvencio Celso in the first century of our era, defined the term Ius (the law, the objective right, the set of norms that constitute a legal order) as "the art of applying what is good and equitable."

Until the end of the 18th century, the philosophy of law was based on the bases of natural law, a valid and invariable order that constituted the rule of human behavior.

But it is in 1821 when Hegel coined the term philosophy of law in his work Fundamental lines of philosophy of law or natural law.

Object of study

Since every legal system is based on a value system and values ​​easily become subjective, legal axiology seeks to make a critical analysis or prosecution of positive law.

This judgment is made from a certain system or scale of values ​​that are supposed to be universally accepted by society. But also, simultaneously and successively, these values ​​must also be analyzed in order to finally decide if they are really legitimate and fair.

So for legal axiology, moral values ​​are both its basis and an object of study.

The values ​​that matter to law

The first task of legal axiology is to define which values ​​matter and which do not, because not all values ​​imply a "must be" for the law.

Religious values ​​and purely and strictly moral values ​​are irrelevant to the legal estimate. For example, when trying a case, it should not matter how religious or holy the person tried is. In the case of a delinquent debtor, it shouldn't matter that you had the moral good will to pay (although in the end you didn't).

On the contrary, values ​​such as the dignity of the person, freedom, social peace, equality, equity, culture, health, security, order and justice, do constitute as normative values ​​for the Law.

The hierarchy of values ​​in the legal system

Legal axiology, in addition to dealing with defining the values ​​that matter to law, must be able to find out the hierarchy; with it, equivalence is established in the relationships of giving and receiving, both between individuals and between individuals and the State.

This concept is taken from Aristotle, who defines justice as the fact that each person must receive not the same thing that he gives to another or to society, but his equivalent.

The principle of equity

Equity must be understood as a set of values ​​that include truth, justice, the common good and human dignity.

The principle of equity defends that any value taken into account when creating the laws or the legal system of a society, in addition to being advantageous for the individual, must lead to the creation of obligations of individuals to society.

The beginning of truth

The main problem that legal axiology faces lies in being able to objectively define what “truth” is, since the term truth in itself is subjective, since it depends on the scale of values ​​and beliefs of the person who interprets it.

What may be true for one individual, such as the existence of "God," may not be true for another.

In a justice system, the "Truth" must be understood as that which can be demonstrated through the facts and which is reached after having carried out a logical and equanimous reasoning based on demonstrable facts.

The principle of reliability

At the time of applying them, it is necessary that the foundations on which they are built are reliable, clear and durable.

Therefore, the objective of legal axiology is to find those fundamental and universal values ​​on which the right of a sovereignty or nation must be built.

Basing the law on values ​​that may be subjective or relative is avoided at all costs. That is, susceptible to being interpreted and applied in different ways according to the point of view of the judge or the historical moment.

Legal axiology and the common good

The common good as a duty and as a right, encompasses values ​​such as the integrity of the human being, freedom, well-being, peace and culture.

It is the function of legal axiology to establish the rules of proportionality according to the common good so that the principle of justice can be fulfilled as essence (as value) and not as arbitrariness.

Formal justice and material justice

Legal axiology must deal with establishing the essential categories for the application of justice and to do so it is necessary to adopt an assessment scale that allows separating what is important and necessary from what is not.

However, human and societal evolution causes these valuation scales to change over time. Thus, the characteristics considered essential for the application of justice are also changing and will depend on the historical moment in which they are established.

Thus, the notion of justice must always be approached from two points of view, one formal or abstract and the other material and quantifiable, taking into account that this notion will be different depending on the context and the historical moment that it is going through.

References

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3. Forment, Eudaldo. (1994). The philosophy of the common good. Philosophical Yearbook University of Barcelona, ​​(27), 797-815.
4. Haba, M. Enrique. (2004). Fundamental legal axiology. Valuation bases in legal discourse. 367p. Editorial of the University of Costa Rica. ISBN: 9977-67-878-2.
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