At first glance, they seem to be part of the same thing, two sides of the same coin, but nevertheless we usually see in the Courts the parties litigating for what each of them understands that corresponds to them in Justice. Perhaps for this reason we must identify and clarify the terms, their importance and conceptual and material preminence of one over the other.
Let’s start by pointing out what the jurist established Eduardo Juan Couture Etcheverry, in two of his Ten Commandments for Lawyers, and which are the subject of this note:
FIRST COMMANDMENT: STUDY: The law is constantly changing. If you don’t follow in his footsteps, you will be a little less of a lawyer every day.
FOURTH COMMANDMENT: FIGHT: Your duty is to fight for the right; But the day you find right and justice in conflict, fight for justice.
The Law as such arises from positive norms, created by the men of each generation, through the constitutional or legal process of their formation and validity, such as the Legislative Power. The Law tries to adapt, interpret, or adjust to the facts, legal and legal precedents, uses and customs, or ways of life of society and its members, in order to regulate them, and that the current Standards do not unduly benefit one over another.
But this process is slow, and we know that the norms that constitute the Law usually always go years, or decades, behind the events and modifications that occur dynamically and permanently in a society, and that when their disputes reach the Courts, Judges must always resolve them, even if they have to use norms that are no longer in accordance with the facts, or others that are resorted to by analogy of situations, which however are not completely or not at all with the facts of the case (Lagunas del Right). And it is there where the parties, or at least one of them, can be clearly and noticeably harmed by the unquestionable right, seriously questioning the equalizing definition that we gave of Justice.
The Norms are in turn a product of what we call Sources of Law (those that found the creation of the same), which in countries like ours, of written Law (different from that of Anglo-Saxon countries, based on legal precedents), are generally found in International treaties, Constitutions, Laws, Regulations, Decreesbut also in the customs and habitsthe General principles of law arising from jurisprudence, and the Natural Law.
In this way, and as we see, the judges themselves can be a source of Law when ruling on insufficiently regulated cases, and also the lawyers themselves when raising, founding and defending them, and in this way, like the other sources of Law, force to the Legislative Power, to adapt the norms to the specific and existing situations of a society to regulate them and avoid the abuse or harm of some on others, when social life in its dynamism, left the current norm behind. It is there, then, where the ideal of Justice must prevail even before the norm, because the Law is designed for the era or moment in which it governs, knowing that if it changes, it must necessarily be updated. But Justice and its value must be and is imperishable in a rule of law.
If the Judge, by his own powers, or at the request of the Lawyers, understands that the sentence, of indisputable legality, would clearly violate what is understood as fair, to the detriment of a person or society, this must be established when ruling one, or when alleging or appealing the other.
Lawyers, whose origin is the word Advocat (Advocate), advocate for the personal and property rights of people (natural or legal) in a Society, many times to materialize and defend them, and we must do so with professionalism, wisdom, and permanent study. , because as we see the Law changes, sometimes slowly and astonishingly, and sometimes abruptly, and our high social mission of advising what the Law says, allows, grants and empowers, it does not rest and must always have the quality, updating and due experience.
Because our Mission must be to Fight for Justice with the spear of Law in hand, but if this is not enough or lacks effectiveness, we must do it alone, with our temperance, courage and conviction of what we understand corresponds, as we all saw. the sources of it, and even Comparative Law, to achieve the Aristotelian balance that defines it.
TG & Associates Legal Firm.
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by CEDOC
