How law is born

Francesco Carnelutti

INTRODUCTION - LAW AND JURISTS

Law is a set of rules that regulates the conduct of men while

Jurists are operators of law, they are those who create the law.
However, not all legal operators are qualified individuals because,
laws are made in parliaments, and in parliaments with universal suffrage,
it is not composed solely of jurists.
Laws are not enough; there is a need for judges who are also
legal operators. Between the legislator and the judge, it differs that one formulates the

laws, while others apply them. But the application is not exclusive to judges.
To apply a law that says to confront it with a factual situation in order to know the
what can or cannot be done.

I - Law and Economics

Theft or purchase are legal acts, but before belonging to

field of law, belonging to that of economics.
Economic actions are all those through which men
they try to meet your needs, the word economy comes from Greek
oikos means house, and the house is a fundamental right of man, and even of
society.
The needs of man are limitless, while goods are
limited. However, goods when they satisfy certain needs,
they stimulate others. Man is never satisfied, the more he has, the more he wants.
That is why they wage war against each other. Thus, one must know what it is.
war, its concept depends on the concept of property which is also a
economic phenomenon before being legal. Also how economics
establishes a relationship with the house, establishes a physical relationship between man and

the good.

The motto of the economy is that man is a wolf to man.

The economically driven man behaves towards another man like an animal.
predator. Instead of letting each one have what they have managed to obtain, the other ...

see trying to snatch it from him. The war is not at its root more than the act
to snatch, invasion of domain in other words. The limits between having to
a man and the having of another man, instead of being respected, are violated.

II - Law and Morality

Men cannot live in peace in the realm of the economy.

because it is based on selfishness, hence on disorder. In selfishness, the self prevails,

which should therefore be replaced by you. If the reign prevails in the economy
In you, the reign of you is morality.
The moral is the reign of love for one another, respect, to love means
equality. Evidently, if society experienced love, there would be no existence
wars. There is a need to eliminate war, man cannot live in
chaos, order is as necessary as the air they breathe and if love does not
it germinates still in the ground, one must find a substitute for it. If anyone
one does not give to those who do not have voluntarily, it is necessary to compel them to do so.

Yes. It is necessary to invent something that addresses the economy, the same
effects that morality.
The society has a head for the same reason that the human body does.
there is one: the head sees, hears, looks and listens the boss captures or understands more

that the others, or rather understands through the others. What the head or chief
understand that one must eliminate war. Therefore, it is necessary for the mind
impose yourself. This imposition cannot naturally be more than the effect
of a mandate. A mandate is, above all, a precept indicating a
conduct that must be followed, if the precept is not sufficient it must be reinforced
by the threat that is named sanction here, it then becomes a mandate.
sanction introduces force into the notion of law, because naturally, while
not obeying the precept, it becomes necessary to use force to put it into action.
This element of force constitutes the true difference between law and
morality, and therefore the naturalness of law in comparison to the supernatural nature of

moral.

III - Crime

The purpose of the crime is to eliminate war, thus where law prevails.
war disappears and, in its place, crime emerges. This does not mean that
disappear immediately, but changes its name, no longer spoken of as war
among peoples, but rather in war between individuals: war between the
individuals became a crime. The only remnant of war admitted among the
individuals have the right to self-defense, those who are unjustly attacked can retaliate.
by force the aggression.

War is the invasion of another's domain; thus the primordial forms

The crimes are homicide and theft: aggression is the domain in its forms.
elementary: the human body and things. In this respect, the first two
Legal precepts are: do not kill and do not steal. "To these precepts is joined the
sanction: if you kill or steal, this and that will happen to you.” What happens is
whoever stole, will be put in prison, the thing stolen will be returned to him
snatched to be returned to the owner, these two sanctions are called
penal sanction and civil sanction, of punishment and restitution.

IV - The Property

Property is born in the ground of the economy, and in this ground, its protection.

is entrusted to the owner's forces. If someone takes possession of things

Aliens are punished, that is, when theft is prohibited, it is not just the
owner who defends their domain, that is, the property becomes a
legal institute until it is converted into a right.
Property and theft are opposites, and as such logically
linked. One cannot prohibit theft without recognizing property, and one does not
you can recognize property without prohibiting theft.
 The right to property is, to explain the right over one's own thing.
the birth of a right over someone else's property, which at first glance seems
absurd, it is linked to the problem of civil sanction.
To the one who was robbed, the thief must return the stolen thing and, if
the restitution does not serve to reconstitute the situation as it was before, besides
but, his things, up to the limit of the damage suffered by that.

V – The Contract

The contract is logically linked to the war. It therefore implies a

projection for the future aims to establish certain current positions in the future,
therefore it implies a reciprocal promise, and the promise is a declaration that
it refers to the future.
The contract on the economic land is worth more to interrupt than to
eliminating war is actually more of a means of truce than a
instrument of peace. To make it an instrument of peace serves the
law. Just as economic institutions convert property
In a legal institute, the contract also assumes legal effectiveness.
Examples of contract:

Free contract - one party gives and the other receives.

Contract - onerous - when donation is replaced by exchange, or
for the sale, or the loan for the rental. (each party
gives and receives.

The contract is a legal instrument without which the two could not operate.
fundamental forms of economic collaboration: exchange and association.
The two typical contracts, in this aspect, are the sale and the partnership, but
Around them, a blooming and constant germination happens again.
wonderfully rich contractual flora. Contracts in general are valid with
acceptance by both parties, the will is valid even if the party that
receive, do not speak.
VI - THE LAW

Throughout the book, one can notice that the transformation of

war in crime and the conversion of property and the contract into institutes
of law, depend on a mandate, and the mandate implies what a
chief pronunciation. The mandate is divided into hypothetical form, because it
it prescribes a conduct to them and threatens them with a sanction in case of non-compliance

of what manifested among them the danger of a war; and in general,

because it addresses all citizens. The law is a declaration of
the boss's will.
Laws can also be unexpressed, as is often the case.
to say, tacit, the tacit law is called customary law. It can be said that
the more society grows, the more laws are created. In Italy, for
For example, currently there are five codes: Civil Code, Penal Code,
Navigation Code, Civil Procedure Code, Code of
Criminal Procedure, but these codes do not even contain
most of the laws; besides them, there is a remarkable quantity
of other laws that would be extravagant. There are so many, that facilitate your
knowledge and management, many of them are gathered, by initiative
private, in other codes: Labor Code, Administrative Code,
Tax Code, Sanitary Code, etc.
The legal system, whose greatest merit should be the
simplicity came to be, unfortunately, a very complicated labyrinth in
which often, not even those who should be the guides
they can find their way. With that, many laws were created and with that the
citizens and even jurists are unaware of it.

VII - THE JUDGMENT

It is known that when committing something that violates the laws, we will have to

to pay according to what is imposed by law. However, there is someone

what is responsible for the decision on a certain matter: the judge on which side

find the judgment. Instead of judgment, modern science likes to talk about
 process. The process is divided into two phases, which are called
cognition and execution. On the other hand, according to the distinction between

criminal law and civil law, the process also bifurcates into criminal process and

civil procedure. Criminal law, as everyone knows, serves to prove

and punishing the offense; including taking into account the
contraventions, it is better to say, generally, the defendant. In civil proceedings,

we see the discussion between the owner and the one who occupied their property, or the

debtor and the creditor, or the husband who wants to separate from his wife and

this that wants to remain as such, and other analogous things. We can
to say that the purpose of the court is the act of judging, of expressing its opinion.

VIII – THE STATE

It can be concluded that there is no State without law and no law without State.

without State. The legally ordered society is called State.

I was ainstitutionorganizedpolitics, socially and legally,
occupying aterritorydefined, usually where thelawmaximum is a
Constitutionwriting, and directed by agovernmentthat hassovereignty
recognized both internally and externally. A Statesovereigné
synthesized by the maxim 'Agovernment, um people, toterritory. State and
law and rights are not the same thing, nor were they born of each other. The State

it is the stability of society, it is a product, and even the product of law.

The State is responsible for the organization and forcontrolsocial.

IX – THE INTERNATIONAL COMMUNITY

The nation, unlike the State, is a concept that belongs not to

law, but to sociology, or rather, to ethnology. The nation is a derivative of
people express themselves, therefore, as a group stemming from a common trunk; the
The most obvious index of this community is the language.
We can define the international community as the set of
legal norms created by the legal production processes specific to
international community, and that transcend the State level (law
Internal). Rights and duties between sovereign states regarding treaties,
conventions and agreements between them.

X - JURISPRUDENCE

The law is just when it serves to bring order to society. The term
jurisprudence has unfolded over time into several analogous meanings.
It designated - as it still does - the very Science of Law, the speculation
scientific. It is also used in the sense of uniform guidance of
courts in the decision of similar cases. It can be concluded, for the purpose
of the law. The law must meet the real needs of society, which is why,
legal professionals must be flexible according to the case.