Summary of Teoría del Derecho | Enrique Ghersi

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Enrique Ghersi's course on towards a subjective theory of law focuses on reflecting on the relationship between law and economics. Ghersi discusses the sources of law, highlighting how the traditional theory of legal sources assumes a hierarchical and logical organization of law. However, he posits that law is produced competitively, leading to various sources or providers of normativities in society, which individuals and citizens apply based on the costs and benefits of each norm, maximizing their welfare. He emphasizes that law is not always logical but rather axiological, based on values. Ultimately, Ghersi believes that his course will encourage interactive classes where students are free to ask questions and participate in discussions, providing an opportunity for a productive and useful exchange of ideas.

00:00:00 In this section, Enrique Ghersi introduces his course on towards a subjective theory of law, which is focused on discussing and sharing general reflections about the relationship between law and economics. He starts by addressing the topic of the competitive nature of sources of law, which is typically the first subject taught in law school around the world. Ghersi believes that the traditional lecture style should be changed to encourage interactive classes where students are free to ask questions and participate in discussions. With this course, Ghersi hopes to give students the opportunity to reflect on various important topics related to law theory and the economy, and ultimately, to provoke a productive and useful exchange of ideas.
00:05:00 In this section, Enrique Ghersi explains that the concept of sources of law is relatively new and wasn't known in ancient Greek or Roman law. The term was first referenced in the late 18th century, but it was Savigny who coined the term "sources of law" in his book in 1878. Savigny was a hugely influential figure in the history of law, particularly in the development of the law of possession and the formation of the Historical School of Law. The metaphorical idea of law being like a river with a source became popular, and Ghersi believes that today, it's impossible to teach law without starting with the sources of law.
00:10:00 In this section, the speaker discusses the concept of the folk gates, or the spirit of the people, and how it was introduced by Savigny in the history of jurisprudence as the source of law. This idea of law originating from a subjectively defined source was considered by some to be influenced by idealism, despite Savigny's aversion to Hegel. The idea of the source of law quickly gained popularity and was further elaborated upon by Javier Strong and his Scandinavian Realist followers who attempted to develop a general theory of the sources of law, but such attempts were few and far between.
00:15:00 In this section, Enrique Ghersi discusses the sources of law, with the focus on Julio Alfaro's book on the subject, "Las fuentes y el ros." Alfaro's work aimed to not only identify and classify legal sources, but to also study their function and how society generates law. However, Alfaro's thinking remained in the realm of Scandinavian realism and offered little development on the issue of sources. In general, the traditional civil law recognizes four sources of law: custom, legislation, jurisprudence, and doctrine; occasionally, some may add a fifth, the general principles of law. The theory of legal sources from the traditional standpoint would depend on the permutations regarding which source is considered primary or secondary. However, Ghersi notes that a theory of legal sources is broader and assumes that law is created monopolicly, either by the law for positivists or by custom for naturalists. The theory also presumes that law is a logically and hierarchically organized system.
00:20:00 In this section, Enrique Ghersi challenges the idea that the law is a logically organized system with a hierarchical structure, as traditional positivists and naturalists suggest. Instead, he argues that the law is created competitively, not monopolistically and that there are multiple competing sources of the law, with citizens choosing which norm to use based on their interests. Ghersi further emphasizes that the concept of the sources of law is a response to an economic question of how the law is produced in society, and it has been answered by the traditional positivists and naturalists through different lenses. For naturalists, the law is a product of divine will, while positivists believe that the law is created through the state's monopoly power.
00:25:00 In this section, the speaker discusses the concept of moral order and natural law, including both the religious and secular origins of these ideas. He notes that while in the past, the idea of natural law was often tied to religious principles and divine creation, more recent formulations are based on reason and the nature of humans. The audio discusses the importance of Hugo Grotius, a famous Dutch jurist and founder of secular natural law, who developed the idea that the foundations of law should be based on reason. Additionally, the speaker argues that natural law has had a resurgence in modern times, particularly through the development of human rights as a central concern in international law.
00:30:00 In this section, the speaker discusses the second major family of Western law, legal positivism. He initially found it confusing as a student, but later discovered that the term "positive" comes from the Latin term "lex imponere," which means to impose the law, and was first used in the Middle Ages. The concept of positive law was first used by the French theologian Peter Abelard to describe law created by humans and excluded natural law. The founder of legal positivism was the English philosopher and jurist, Jeremy Bentham. He believed that the law was only what authority produced for the advantage or utility of subjects. The origin of legal positivism's intellectual thought is English, not Roman-Germanic, and was propounded by Bentham and James Austin, with the latter diffusing the idea throughout Europe.
00:35:00 In this section, Enrique Ghersi discusses the arrival of legal positivism in Latin America and its connection with Andrés Bello, the first legal positivist in the region. Bello, who drafted a civil code and a penal code, believed that the penal code should aim to reform criminals through work, and introduced the idea that a law can only be repealed by another law. This concept originated from Jeremy Bentham, who also created the concept of panopticon, the ideal prison that Ventas had derived from. Bello's influence was significant in Latin America, and his introduction of positivism brought about a new era in legal practice in which law was no longer subject to customs, but to reforms governed by legal agreements.
00:40:00 In this section, Ghersi explains the idea among naturalists and positivists that the legal system is created monopolicamente, or exclusively, through divine will, reason, or law. This concept is further supported by the widely-used metaphor of the pyramid, which describes the hierarchical organization of the legal system based on the principle of non-contradiction. However, Ghersi notes that this idea pre-existed the metaphor of the pyramid, as it was introduced by a disciple of Xavi, one of the founders of the historical school of law. Despite being associated with different legal traditions, both the naturalist and positivist schools agree that the legal system is produced monopolicamente, and is logically organized on the basis of non-contradiction.
00:45:00 In this section, Enrique Ghersi suggests that, contrary to common belief, both natural law and legal positivism hold similar views on the hierarchical organization and logical system of law based on the principle of non-contradiction. However, he argues that the theory of economic law reveals that there is no monopolistic creation of law, and that law is actually produced competitively in society by various sources or providers of normativities. Ghersi then explains that customs produce legal norms that are used by people, and that regular use or reiteration of certain facts within human populations results in legal institutions. He cites the well-known example of the traditional Peruvian custom of "marriage by trial." Ultimately, Ghersi posits that institutions in society are formed from cooperative actions and are not based on individual will, leading to an extended order.
00:50:00 In this section, Enrique Ghersi discusses the evolution of law and its sources. According to Ghersi, law is a spontaneous and competitive result of the voluntary actions of individuals and institutions, accumulated over time in a cultural evolutionary process. Various sources of norms exist in society, including customs, which are the most original, but they have high transaction costs, leading to the production of laws through legislative systems. In a world where law is produced competitively, there would be no hierarchical pyramid of normativity, but a sphere where individuals and citizens would rationally choose which norm to apply according to the costs and benefits of each one, thus maximizing their personal welfare. Ghersi uses an example of the difference between a Peruvian in Lima and one in Paterson, highlighting the importance of laws as norms that people obey to reduce transaction costs.
00:55:00 In this section, Enrique Ghersi talks about the concept of sources of law and how it relates to the behavior of citizens in different countries. He provides examples of how people in Peru do not adhere to traffic laws whereas Peruvians living in the US do. He also talks about the principle of accession in relation to the issue of land invasions in Peru and other parts of Latin America. Ghersi points out that the principle of accession, which establishes that the owner of land is also the owner of what is built on it, has been reversed through customary practices. He emphasizes that law is not always logical but rather axiological, meaning it is based on values.

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Enrique Ghersi argues that the law is not created monopolicly but rather through a competitive and decentralized process stemming from society's interests, prejudices, and human errors. He dismisses the myth perpetuated by legal positivism that the law is a rational product created by a group of jurists in a laboratory-like setting, arguing that this notion has created tragedies throughout history. He highlights the importance of competition in the creation of law and acknowledges the subjectivity of morality. He contends that moral values are shaped by individual decisions, rather than by legal frameworks, and suggests that the design of legal norms should prioritize public, rather than private, values in order to promote efficient cooperation among individuals with differing sets of values.

01:00:00 In this section, the speaker emphasizes that the law is not solely created through legislation, but through a competitive and decentralized process stemming from society's interests, prejudices, and human errors. He notes that the law is not a logical system based on the principle of non-contradiction and is not merely a product of reason or rationality, but rather a product of human will and action. He dismisses the myth perpetuated by legal positivism that the law is a rational product created by a group of jurists in a laboratory-like setting, arguing that this notion has created tragedies throughout history, including in Latin America, where there is a belief that legislating is importing laws rather than creating them through an organic process.
01:05:00 In this section, Enrique Ghersi highlights the issue of plagiarism in Peru's legal system, where lawmakers would submit bills plagiarized from laws in other countries. Ghersi argues that the production of law is an intellectual exercise and that law is produced in decentralized ways within society. He notes that the main sources of law are still the custom and the law, with jurisprudence being a means of applying either the custom or the law in a particular legal system, and doctrine is essentially a discussion. Overall, Ghersi challenges the idea that law has a single origin and that it is created monopolicly.
01:10:00 En this section, Enrique Ghersi explains that the production of law in a society is competitive, and several sources exist from where citizens can choose the appropriate norm to follow based on their personal interest, making the law as a product of human action and cooperation, spontaneous errors, and virtues, rather than a perfectly logical rational system created in a laboratory. Ghersi argues that the law should not be seen as a closed, perfect, logical, and impeccable hierarchy, and the law is broader than just rules written by the state, and institutions can originate from other social norms. He expresses his critique of the influence of positivism in the legal field, which is one of the most harmful contemporary academic influences.
01:15:00 In this section, Enrique Ghersi discusses the positives and negatives of legal positivism. While the school of thought helped treat law as its own rational discipline, it also introduced negative elements by treating the law as separate from society and independent from morality. This creates a discussion about the need for reconciliation between reason and morality and the reconstruction of legal positivism to ensure it isn't abused. Ghersi emphasizes that the individual's selection of laws based on their self-interest creates a rational system of law, rather than a hierarchical or logical one. Therefore, the theory of the sources of law should recognize that all laws are created competitively, rather than monopolistically.
01:20:00 In this section, Enrique Ghersi argues that legal sources exist in society and it is up to individuals to choose which system and sources of law to follow based on their particular interests. This creates a competitive, decentralized, and spontaneous legal system where people move from one legal source to another based on their convenience. Ghersi acknowledges that such competition has always existed, and though it has become more transparent and straightforward, it remains an essential feature of the legal system. He further explains that the creation of rights and legal systems has always been a product of the evolution of society and technology, which has contributed to the shifting from number open systems to closed systems of law.
01:25:00 In this section, the speaker addresses the issue of how to resolve conflicts when it comes to competing legal norms, such as when parties may choose between customary law or statutory law. He argues that the side with the critical mass of support will usually win out in such situations, and that the solution is not always based on legal reasoning. The speaker stresses that legal institutions are designed to prevent conflicts from arising in the first place and that when they do, they are substitution mechanisms for market-based solutions. He also notes that judges tend to rule in favor of customary law rather than statutory law when there is a conflict between the two, as customary law tends to have greater legal certainty. The speaker concludes that the law is ultimately a branch of literature, and that if legal education focused more on rhetoric, it would be clearer that legal reasoning is not always the primary means of resolving disputes.
01:30:00 In this section, the speaker explains that law is a branch of literature and lawyers live in a world of arguments. He adds that lawyers shouldn't confuse law with science, as law seeks to support an argument rather than just describe reality. The truth in law is considered dialectical because it is argumental, and the person who presents their argument better possesses the truth in law. The speaker also highlights the importance of presenting and defending a position in law, which is a significant part of literature, and differentiates good and bad law in the way that they correspond and represent the society they are meant for. Moreover, he suggests that law is created competitively within society, and it is not created monopolistically by the state. Finally, he addresses a question concerning how individuals can choose their own normative laws, where the society itself influences the acceptance of norms based on cost, benefit and support in the society.
01:35:00 In this section, Ghersi discusses the subjectivity of morality and how correct or incorrect behavior depends on an individual's perspective. He shares examples of how societal norms and customs can condone actions that might be regarded as morally questionable in other cultures. Using the example of an entrepreneur who leads a polygamous lifestyle, Ghersi highlights how different cultures view the concept of right and wrong. In some societies, it's acceptable for wealthy men to have multiple households and families, and as long as it doesn't lead to any scandal, no one questions their behavior. Ghersi also talks about how the legality of an act is often not an accurate representation of its morality since certain customs and traditions shape people's view of what is right or wrong, and this can vary by culture or region.
01:40:00 In this section, Enrique Ghersi discusses the history of the persecution of Mormons for practicing polygamy in the 19th century and how they still practice it today in secret. He also touches on the topic of minority moral customs and how they can collide with the law, resulting in a dilemma. Moreover, Ghersi explains that corruption is a cost-benefit issue and not a cause or effect of institutional systems. He emphasizes that corruption occurs when the cost of legality exceeds its benefit, and that the decision to engage in an act of corruption is a personal one based on cost analysis. Finally, Ghersi answers questions from the audience about promoting fair competition in the world of business and how to deal with conflict between costum and law.
01:45:00 In this section, the speaker discusses how the sources of law operate independently of people's will and the importance of understanding this concept. He suggests that the positivist idea that there is only one way to produce legal norms is a fallacy, and it is important to be informed regarding the debate. The speaker also talks about the evolution of law, which evolves in competition with societal evolution. While there is no guarantee of progress or evolution, as evidenced by a country like Venezuela, where democracy has undergone a significant decline, the spontaneous evolution of law is independent of people's will, and the creation of legal norms reflects societal cooperation. The speaker concludes with a discussion on the concept of order and how different perspectives can shape the hierarchy of the sources of law.
01:50:00 In this section, the speaker argues that society's order is not imposed by reason, but rather self-generated by cooperation. People are ordered by their interests, and they cooperate voluntarily and regularly. This generates institutions that people use to cooperate in the future, and the law records them. The hierarchical nature of the law is not in the legal system, but rather in people's preferences. People choose the legal, customary or legal norm that best suits their preference. The speaker believes that the law does not have values, and that it is simply an economic good, like a hammer that can be used for good or bad purposes. The right to choose an institutional system is already implicit in the mechanism of prices themselves, and is not necessarily autonomous. He explains that when one buys a house, they buy an implicit legal system of zoning, property rights, public records, regulations, and horizontal legislation.
01:55:00 In this section, Enrique Ghersi argues that law is not defined by its content, but rather by its structure. He contends that the principles and values that supposedly guide the law are actually derived from individuals, as they use the legal system in accordance with their own values and principles. Ghersi sees law as a tool or instrument, lacking inherent moral values, which people use to pursue their interests. He acknowledges that this controversial view may be perceived as being amoral, but makes the claim that moral values are shaped by individual decisions, rather than by legal frameworks. Ultimately, Ghersi suggests that the design of legal norms should prioritize public, rather than private, values in order to promote efficient cooperation among individuals with differing sets of values.