The legal provision is “the juridically obligatory standard, whatever its source (legal, usual rule), its degree of general information (general rule, special rule), its range (absolute, rigid, flexible rule…) ”.

Characters of the legal provision

General characters of a rule

A general rule and impersonal

The legal provision is considered general because it is applied to all the national territory and for all the facts which occur there. It is called impersonal because it applies to all the people who are or will be in an objectively given decision, and it defines the action to be taken then in this situation. In this direction, it is not made for the particular cases.

The impersonal and general character of the legal provision is not absolute, because if the legal provision always defines a precise situation, it relates to always only one number limited people.

These characters are not specific to the legal provision. Any measurement which claims to apply to a certain number of individuals must necessarily be general and impersonal. If a measurement concerns only one determined person, it is not any more one rule, it is a Décision. The rules religious morals and are they also general and impersonal.

A rule with social purpose

The goal of the legal provision is to organize the social life: it is for the legal provision that this characteristic is most marked. For the moral rule, the finality would be rather that of the blooming of the conscience of the individual, of his improvement; the religious rule, it, would take care of the hello of the heart.

To reach this social purpose, the legal provision sometimes will contradict rules morals or nuns (divorce, regulation, abortion….).

This criterion is not characteristic of the legal provision. The right does not have that a social purpose, and sometimes, it even comes to set up a moral rule in legal provision. The other codes of conduct have also a social dimension (even secondary). The rules nun and morals are not unaware of the social fact, they take account of the duties of each one with regard to the other members of the company. There exists also a “social” morals (driving with a behavior of good citizen).

An external rule

The legal provision does not depend on the will of that which is subjected there. It is not a constraint which one asserts spontaneously, but it is an order or a suggestion imposed on each member of the social body.

This external character is, according to Kant, which makes it possible to distinguish the legal provision from the moral rule. Indeed, the moral rule is internal with the person and is the product of the conscience: it is the subject itself which is essential it.

But the legal provision is not the only one to have a source external with the will of the Man. It is the same for the religion. It is not a question of a single nature.

Specific character of the legal provision: the official Coercion

One understands by official coercion a constraint emanating of the State. What is specific to the legal provision, it is thus to be made compulsory and sanctioned by the State.

Indeed, if any human code of conduct comprises a sanction, only the legal provision comprises a sanction emanating of the State. Thus, even if a legal provision is in the beginning a moral rule, it becomes a legal provision only when it is made compulsory and sanctioned by the State.

Consequences of this specific nature

Obligatory character

The legal provision being intended to organize the company and the relationship between these members, it that it is respected and thus it must be imposed, is made necessary compulsory.

Any legal provision is obligatory, but this obligatory character is likely not to be respected. One thus distinguishes the imperative legal provisions from the suppletive legal provisions.

The imperative legal provisions are those which order or prohibit a control without the subject being able from it to be withdrawn. They are often related to the law and order. For example, the husbands have, because of the marriage, of the obligations between them which passed by imperative rules.

The legal provisions are suppletive if they are obligatory, but can be isolated by the subjects of right. Indeed, they apply only if the subjects of right did not express particular will for the organization of the situation. They then come to compensate the absence of expressed will: they are applicable legal provisions by defect. For example: article 1609 of the French Civil code thus provides that when a thing is sold, it must be delivered to the purchaser at the place where it was at the time of the contract. The parts however are authorized to envisage another place of delivery.

The sanction of the legal provision

The legal provision is always supplied with a sanction emanating of the State. This sanction can take varied forms. One distinguishes some several, which can sometimes cumulate.

• the first type of sanction can constitute in the forced execution of the legal provision.

The authority in charge to make comply with the rule requires the execution by having directly of it recourse so necessary to the police force.

the tenant who does not pay his rents can be expelled.

• Another category of sanction can be described as repairing .

They aim at repairing the consequences of the non-observance of the legal provision. Thus, when one cannot or to more obtain the execution of an obligation, one replaces it by the payment of an amount of money (damages) corresponding to the injury caused by the inexecution of the obligation.

One can also speak about the cancellation of the legal document. When a legal document as a contract was concluded without complying with the legal provision applicable to the contract signature, the best manner of repairing this non-observance of the legal provision is to destroy this contract by the play of an action of cancellation.

• the punitive sanctions , primarily raising of the criminal Law.

However, the criminal law is not the only one which proposes punitive sanctions in the event of failure with the legal provision. Exceptionally, the civil law can also do it. For example, article 792 of the Civil code French lays down a civil sanction for the successional concealment, i.e. the fact for a heir of being itself suitable clandestinely a good of the succession. It then does not have any more right on this good.

Bases of coercion

The philosophers of the right always wonder about the bases of the coercive character of the legal provision: what founds the obligatory character of the legal provision? The answers brought to this question can be distinguished in 2 different families.

Natural right

See also: natural Right

Certain authors consider that the base of the coercive character of the legal provision is the natural right, i.e. the whole of the ideal rules of human control, to which the substantive law must be subjected.

If the legal provision is in conformity with the natural right, it must be coercive. In the contrary case, it is unjust and one must disobey it.

There exist various designs of the natural right.

For Aristote, the natural right is the higher principle of justice registers in the nature of the things: it is what is right. For St Thomas d' Acquin, the natural right is inspired by God. Lastly, certain authors consider that the natural right must result from the nature of the Man (Grotius).

Positivism

See also: Positivism

One second school is opposed to the theories natural right - rather idealistic. They are called the theories positivists. These authors deny the existence of a natural right. For them, there exists only the objective, positive right. For some of them, it is only the authority of the State which gives on the legal provision its obligatory function - one speaks then about official or legal positivism. For the others, the legal provision and its coercive character are an element of social defense - ideological positivism.

Marxism

See also: Marxism

For the Marxist theory, the legal provision is a means of oppression of the dominant class, and this is why it is coercive. It has vocation to disappear when the class struggle disappears.

See too