SUBJECT 7 FREEDOM And DOMINION. TREATISE ON FOUNDATIONS OF SOCIAL PHILOSOPHY
7,1 Social law.
7.1.1 A characteristic of all law is its ordering to the good, but the way how it orders the human acts to obtain it and the scope of application are different according to is the intrinsic nature of the same law.
7.1.2 The social law is characterized in trying or the common one by means of the ordering of the social relations according to the natural reason of the same ones so that of them the mutuum or of all the parts affected is followed by the different relations whereupon the society forms itself.
7.1.3 The social law is distinguished of the moral law in which this one tries to make the good man, whereas the social law goes to order the relations of coexistence between the men according to the deepest principles of conmutativa justice.
7.1.4 The social law is subordinated to the natural law in which it concerns the way of being more radical of the human person. The social laws of the universal rights of the man are educen there.
7.1.5 The social laws in essence are based on the conmutative justice, that is the one that protects the right mutua of fairness in a multilateral relation.
7.1.6 Its promulgation corresponds to the subjects that form the social group, by means of its representatives invested with authority.
7.1.7 Although from many spaces of the social philosophy the social law with distributive justice is had essentially tie, of the rigorous analysis is deduced that distributive justice is identified with conmutative justice in the deep structure of the natural rights of the man.
7.1.8 According to it is the group on which it is constituted, the social law includes a community, municipality, state or internationally to a group of states.
7.1.9 In himself the social law only creates legal dependency in the social group that constitutes it or does hers by treaties of adhesion to a promulgated law externally. The universal social laws of protection of the fundamental rights of the man only have application from the implicit perspective of the constituted international community like universal set of the human beings.
7.1.10 All social law, like free expression of the subjects that promote it, is revokable by the authority of the legitimately constituted group.
7.1.11 The social law is related by its scope to constumbre and the contract. All it comes from the regulation of acts of human relation, distinguishing the law by the importance of their promulgation. The contract, as soon as agreement of the parts, has the same intrinsic force that the law, and the custom from its structure first is identified like the contract subscribed implicitly by the successive generations. The custom can be denounced by the affected ones that are considered broken ties with the relation freely ways that it involves.
7.1.12 One of the greater obstacle of the social law is in the definition of the scope of the able society to constitute it. The society, like associative structure of sets or groups of people, can in each one of its phases settle down like group with legitimate social personality for the group that make up and therefore, by means of its representative authority, to make law of the contracted social agreements.
7.1.13 Practical sociology has come to establish the state like the communitarian organization had with the legislative power in the scope of the social laws. What the will of the subjects would have left therefore would be the boundary of the social group that constitutes in state and not in himself the social legal figure of the same one.
7.1.14 The configuration of the legislative power within the state must be direct and is transparent because the right to legislate on its relational acts continues being an inalienable right of the person, no matter how hard it is associated in community.
7.1.15 The respect to the freedom of contract between citizens of the state corresponds to the own nature of the personal freedom, being able the state only to mediate it in which it talks about to the common good and the repression of the dominion positions.
7,2 Moral freedom in society.
7.2.1 The personal moral is the adjustment of the will to the correct norm of exercise that is followed of one correct conscience.
7.2.2 As soon as the conscience is an attribute of freedom of the human being, the moral will have as referring subject proportionally to as the norm is made present to be evaluated in the conscience.
7.2.3 The order of the nature constitutes like universal norm object of the human knowledge that informs to the conscience for the straight exercise of the good, being understood this one like the quality that reaches perfection according to the own order of the nature.
7.2.4 In the measurement that the man knows the norm moral and it accepts it by the exercise of a freedom act, according to his own nature, ties his specific good to the one of the global nature.
7.2.5 The moral behavior, therefore, is sustained in two parameters: the knowledge and the freedom. Without first there would not be norm that to evaluate and without the second would not exist alternative of exercise reason why the norm would be an empty reality of value.
7.2.6 In the social relations the moral responsibility of each person is maintained because being related human beings to others do not alter nor evade the order of the nature, but that corresponds with its same essence. For that reason the society does not impose moral norms on the man outside whom they are consequence of the insertion of the social acts in the essence of the nature.
7.2.7 The same essence of good as perfection constitutes the referring moral par excellence when it is constituted like common good. The norm that it jointly perfects to all the members of a colectivity is suggested like moral norm par excellence what come up of the social relation.
7.2.8 The common good as moral norm perfects to each person like object and subject. As object provides to him passively according to the good that repels to him. As subject it only perfects like result of the free decision of a known certain act. In this one distinguishes the social law and the moral law for the man, in which first it forces according to the disposition of good in the relations by the evaluation of a majority, and second by the internal perception of the knowledge that informs straight to the conscience.
7.2.9 The social law and the moral law agree in the people grouped in community by the perfection of the knowledge, which would be only followed when outside totally rational intuitive. In the measurement that the human knowledge is rational mental sensitive the perception of the truth is relativized in each person in which we called straight conscience.
7.2.10 The oppositions of the moral law and the social law constitute one of the greater obstacle of the integration of the groups and the dispassionate objective of the common good.
7.3 Forms of dominion.
7.3.1 The dominion is a configuration of the social relation in which a part exerts its influence for the submission of the other to its will.
7.3.2 To form those relations this way they demand the voluntariedad of a part that follows the knowledge of the use of the social relation as an out of proportion own benefit with the benefit that is generated for the other part of the relation.
7.3.3 From this resulting opposition of interests of the relation the concertantes like opposites are formed.
7.3.4 All social relation in which the parts come together as opposite supposes the unstable balance of the relation, since it is conceived like a confrontation of powers for the dominion on the other. In the measurement which they vary the positions of power, the agreed balance vanishes by the possibility of increasing the own interest.
7.3.5 The dominion that can exert by virtue of a position of power decrease the capacity of freedom of the opposite part, because this one, although is forced to agree to cover a necessity, he does not make like an act of the will concord with the reason, but by virtue of an influence that forces to him to accept to put under its freedom like the badly smaller one.
7.3.6 The dominant part of the relation is subject moral of the damage of freedom of the opposite part, because its interest is only satiated by the imbalance that imposes in the relation.
7.3.7 The ethical social relations do not support the damage of freedom of the opposite part, reason why all the relations of dominion intrinsically are excluded from the perfect application of the good for both parts, last object of the social relation.
7.3.8 The dominion will be greater not necessarily by the interest overwhelmed of the dominant part, but by the conculcado degree of freedom of the dominated part.
7.3.9 The generalization of the relations of dominion in the society does not justify their ethical fundamentación, but in any case they show the progressive insensivility of the human being for the exercise of the good in its relation with the others. The lack of the correlation of consideration of the personal dignity is in the origin of all tendency of dominion.
7.3.10 The pretension to consider the dominion as form of affirmation of the freedom only can respond to a knowledge that is constructed on the ignorance of the universal notion of the natural rights of the human being.
7.3.11 Many forms of exercise and consolidation of the dominion like system legitimized in the social structures exist. Among them they emphasize:
7.3.11.1 The coercive law:
- The coercive law.
- The psychological penetration.
- The economic subjugation.
7.3.11.1.1 The common good can be understood according to the application of the same one on the citizens of two ways:
7.3.11.1.1.1 First, when the good is followed directly for each one of the citizens unitarily considered.
7.3.11.1.1.2 The second, when the good is followed for the colectivity, considered abstractly like a set, although for some members does not imply a positive perception directly.
7.3.11.1.2 A law could only be considered like coercive when persecuting the common good even harms natural rights of some human person, since the natural right cannot be object of settlement without to reduce the natural personal condition. If to belong to a social colectivity his laws they reduce fundamental rights of some person, the same ones would have consideration of coercive independently of the legitimacy for their promulgation.
7.3.11.1.3 When a law, however, does not reduce natural rights but that it affects acquired rights of certain people, reconsidering them in favor of the common good, it cannot be defined as coercive law if its application favors a new balance of powers and interests more right just for the implied parts.
7.3.11.1.4 The law will be coercive if it allows with his application the legality of the relations of dominion by the high-priority protection of rights to a part on the legitimate pretension of the opposite part. The law that therefore is dictated comes to guarantee part rights so that they can be used like being able in damage of others in particular the social relation that frames fundamental rights: work, subsistence, family, health, education, etc.
7.3.11.1.5 The law that protects the part dominion, as soon as that protects that dominion, must consider one
unjust law, because all exercise of dominion of man on man involves in its essence an injustice, because the own relations between the human beings correspond to relations on service that respect the conditions of freedom for all the participants.7.3.11.1.6 All law that foments or allows some type of coaction against somebody is generating an alteration of the social order that not only affects to the relational act in himself, but that, as it involves a limitation of the freedom, marks the subject that suffers it morally making him weaker - how much more/less free is the person greater/lesser is the strength of his personality- and therefore more sensitive to suffer more dominion. There is one of the causes of the consolidation of the social imbalance.
7.3.11.1.7 The coercive law intrinsically becomes more condemnable when its effect repels in the limitation of the freedom of exercise of the minors or the people with decreased capacity of decision. To restrict rights to build, although is indirectly, so that who control the promulgation possibility can arrange with more facility on the will of those people, to anyone of the forms in which they can obtain benefit, constitutes a form of intolerable dominion, since that less can personally exert the protection of its rights is the one who more shelter must have in any form of relation so that the same not magazine like unjust.
7.3.11.2 The psychological penetration:
7.3.11.2.1 Since the man is a being equipped with an immaterial intellectual capacity, its integrity can be harmed by an action that alters its conditions of psychological stability moving to him to act with restriction of the freedom that must to him.
7.3.11.2.2 The exercise of the dominion relations can settle vwithout violence or physical coaction by means of the psychological pressure that forces the opposite part to act according to a nonsubject way to its intellectual evaluation. When the human being has to act thus, its condition of person is marginalized and the being reduced to category animal.
7.311.2.3 The dominion is as much subtler to as soon as he is less perceivable by the subject that suffers it. When somebody feels pressed or attacked psychologically it has the resource of a provided answer, and if the same one is not effective is conscious at least of the degradation of freedom in which it is immersed. However, when the influence on the mind is not only made without this one perceives the harmed manipulation as much more is left its freedom, because it acts against as reasonably in other circumstances it would do it, but in addition because he is not conscious of that alteration.
7.3.11.2.4 The law can establish dominion forms that prevail from the justification of an attitude on service, but which really they involve the dominion of a social group on another one. The mediatic powers to service of the state usually exert that function, that always is more effective according to the proportion of its preeminence between mass media from the society.
7.3.11.2.5 It is very important to distinguish what in the legal order it corresponds to the ponderación of the democratic majority criteria and to which can involve of dominion position to trick the opinion of the social group. When the laws settle down following transparency criteria that allow the social debate, the psychological combat ability diminishes, by the importance that the discussion to entail so that each person extends her perspective of criterion. The law therefore is constructed like reflection of feeling majority that evaluates the dimension of service and dominion that its application can provoke.
7.3.11.2.6 If the writing system and promulgation of the laws to avoid the advisable dialectic confrontation between the civil group it generates a greater possibility of than the same one is applied without a reflection for the citizens, that will get used to fulfilling the rules without an intellectual valuation on which such they imply. This takes place in the authoritarian societies.
7.3.11.2.7 The political propaganda is another one of means to subjugate the freedom when the same one directs the cultural and educative relations to form addict consciences to the criteria of the power.
7.3.11.2.8 Loyalty with a political system of fairness, like the democracy, must lead to the citizens to the respect of the legitimate authorities and institutions. The own criterion must be put under the common interest, but it should not prevent to maintain the spirit of constructive critic permanently and to maintain the personal criteria of conscience. The respect to the minorities is one of the foundations of the democracy, because the society structure according to seeming of the majorities but anything is guaranteed that socially those forms really have greater contents really than the opposites. To try to uniform the criteria of social conscience by means of a psychological effect is not only a serious damage for the people to that directly goes, but also supposes an impoverishment to the collective intellectual development that leans in the contrast of a diversity of criteria.
7.3.11.2.9 The psychological penetration tries to turn the people mass. The despersonalización is one of greater ballasts because it reduces to the person to the condition of individual, trivialize its importance, depresses its creative spirit and frustrates its spirit of overcoming. A subject thus treated is more docile to govern, being transparent the society order when apathy in fact only exists. Perhaps for that reason the social episodes of pseudomorales régimenes usually go matched by a certain enquilosamiento of the creative activity.
7.3.11.2.10 To suppose legitim the psychological pressure by the economic improvement that could derive from a certain ideological stability is a serious error, because history has demonstrated how the respect to the intellectual freedom is what authentic development generates.
7.3.112.11 The exercise of the dominion in the social relations by means of the psychological pressure is materialized in the diverse estates of the society: from the relations in the school to the familiar life, in the labor scope or the national community. The characterization of this form of dominion is sustained specially in disfiguring the logics individual limitations, or to marginalize the person or to denigrate it in its own esteem.
7.3.11.2.12 This depravity of the psychological attack is even contemplated in the closeest relations: between children and adolescents, in the married pair, with people to whom they unite one old labor relation, with old or crippled peopler.
7.3.11.3 The economic subjugation:
7.3.11.3.1 Since the man precise of material elements to survive, one of means by means of which he can be repressed consists of the illegal deprivation of the average ones for his development.
7.3.11.3.2 The substantial unit of the human person causes that it is a unit in his development that incorporate homogenous its material parts and their intellectual elements. The limitation of necessary means for a harmonic development not only decreases its personal perspective of accomplishment but that also limits the possibilities of its intervention in the society in equality of opportunities.
7.3.11.3.3 To provide each individual that is integrated in the society of right conditions economic is due to be a priority of the social relations, and these must be considered from the perspective of an equality of possibilities to make the individual capacities. When a person by the economic limitation that the society confers to him to its participation in the labor activity is marginalized of the logical development, its freedom would correspond to him is limited in the same proportion and, therefore, the social relations in which must take part are vitiated by this relativytation of their capacity of participation in equality of conditions.
7.3.11.3.4 When a person is marginalized of her participation in the interchange of services and goods whereupon the community has equipped itself, based on the convenience of the distribution of the work, that person is marginalized of the possibility of a worthy survival, for that reason the frame of the labor interchange must follow a system that provides to all the members of the community the possibility of taking part and that nobody is excluded from its labor accomplishment. In the present society this situation is reiterated in the situations of forced unemployment, and their patients somehow are marginalized of the society, having corresponded the state to take part in the structural organization of the social relations to palliate this way in which they are subjugated the unemployed. In special he creates a subyugante situation when that with dominion in the forum of the interchange of labor benefits foments unemployment to improve the yield of its interest.
7.3.11.3.5 In special this situation of marginalization by unemployment one worsens when the concurrence of an office is delayed and that it suffers it is a person who, by her conditions of age, sex or any other incidence, displays difficulty to recycle itself to another activity with more possibility of hiring.
7.3.11.3.6 The economic affectation in the society is specially important when by means of her, by the disposition of the distributive laws, the feeding and the education in the stage of the childhood and youth she is discriminatory, without responsibility of the parts can be alleged because the minors do not have moral nor legal capacity to contract their part in the society. To create in the social system discriminations on the minors supposes to ignore the essence of the fundamental rights of the people. It is necessary to take in consideration that the possibilities of education are transcendental for the development in the future of the freedom, and therefore is not permissible that nobody can be discriminated by lack of attention against its necessities.
7.3.11.3.7 Since the unit of economy in most of the social groups is the relative, one of the stumbling blocks that appear in the concert of the relations between parts is the one of the consideration of the familiar load so that the same one is not affected by a imbalance between which it perceives by the transaction and the objective necessity of the familiar group for his survival. This difficulty cannot be more than treated in a concert superior to the one about the mere relation between individual parts, and is there where the state with a superior regulation must take part that corrects the misalignments that could occur between duties and rights of the familiar group with respect to the free hiring of services. This affectation for the children of the possibilities of the parents is what it has originated the necessity of one active distributiva social policy in preferred attention to the equality of opportunities of the minors to palliate the one that its future can be pawned by the shortage of resources for its suitable formation.
7.3.11.3.8 Of previous is deduced how the economy can subjugate the possibilities of social promotion and of stratifying the society in sectors of being able by the different possibility from application of resources on the education of the descendants. Taken to its last end, the most radical subjugation would be this unequal application as soon as it would condition the freedom of exercise of the own capacities by unequal the allocation of resources for such aim. This function to balance the society towards an equality of opportunities is perhaps the most important social work than it must assume the state in the order to favor the exercise of the freedom.
7.3.11.3.9 In any relation right economic conditions represent an essential factor of stability. The injustice more of the times comes from the strength position in which is one of the parts, indeed by virtue of its economic power, that allows him to face the relations from a dominion position that imposes the conditions of the pact to the remaining parts, that in damage of their freedom are forced to accept the imposed conditions to get up itself to the social plot. In the measurement that is greater the imposition becomes greater the deficiency of freedom.
7.3.11.3.10 The position of dominion in these economic relations by which are subjugated the less favored citizens finds so much in the authoritarian or totalitarian state whom an unjust structure defines, like in the liberal system that causes the net power of the capital. Who dominate from those spheres of power are called oligarchs or caciques, according to it is his position in the dominion structure.
7.3.11.3.11 The reinvindicación of a freer society fit to the rights of a balance in the participation of the common wealth that it generates a colectivity is the one that has fed the fight on classes, but the dominion position that it generates the injustice also does not come only from a relative position of the structuring of the society in estates but of the confrontations of being able within each estate. For that reason the ethics of the relations that only protect the freedom will be effective from the rational positioning of a shared in common mentality.
7.3.11.3.12 The dominion that is exerted from the economic power is not in many cases perceived like so by its holder, because the game of the economic position the social reality has assumed it like integral part of the consolidation of a personality, like an absolute right, when in truth the right of each relation does not determine the economic conditions but the agreement to it of the productive forces that come together. In as much as soon as that each one of them is proportionally admitted and paid it is when a justice frame is generated. To impose the conditions of way closed from the power that confers the dominion of average materials supposes to destroy the creative capacity of the rest of the contributor ones.
7.4 Guarantee of the right.
7.4.1 Once the men have constituted themselves in society and have contracted duties and rights they must establish an order commonly so that the rights really are respected and a culture so that the duties are exerted.
7.4.2 The correspondence between duties and rights of the citizens causes that in many occasions the rights are followed of the corresponding fulfillment of the duties by the other people who take part in the relation. For that reason, the constituted social ordering multilaterally has created specific organs so that by the fulfillment of the laws it is guaranteed the correlation of duties and rights, equipping to such with coercive capacity on the citizens for that aim.
7.4.3 The apparent opposition between the coercive pressure for the fulfillment of the duties and the individual freedom is solved in which the configuration of the relations that they establish rights and duties are granted in their essence by the free will of the parts, and therefore the exigency of its fulfillment is followed of an act witnessed by notary public of responsibility.
7.4.4 When one is right public, that is, from whom they are sprung from the legal ordering of the society constituted like State, these are followed of the majority will that has established them as determinations of the common good and for that reason correspond to the state authority preserving their benefit for each citizen.
7.4.5 If they are right derivatives of a particular relation, the arbitration function corresponds to the public authority firstly to explain the existence or not of that right according to the agreed relation, and only subsidiarily to attend the part harmed in its effort to replace the justice derived from the initial pact.
7.4.6 Public the coercive intervention in disagreements of right in private relation responds to avoid the confrontation and the violence between the parts in the replacement of justice, and thus and according to the society understands to it and it formalizes it in his laws has obligatory character for whatever agree privately in the scope of a community.
7.4.7 The guarantee of the right protects the legitimate authority by means of:
7.4.7.1 The application of the law.
- The application of the law.
- Punishing the transgression.
7.4.7.1.1 The application of the law demands that the same one develops suitable procedures so that the protection of the entrusted rights to her is made without disturbing other fundamental rights of the person.
7.4.7.1.2 So that those procedures are right asimismos, in addition of which other rights do not trnsgredan, they have to be in favor legally formed of the publicitados society and being in its writing as in its application as much, in order that they cannot originate situations of abuse authority.
7.4.7.1.3 The right of hearing and to a professional defense is essential in the application of those procedures whose objective is as much to make evident if acts with result of the transgression have existed, like the cogoverning proportional measurement that prevails to restore of the conculcado right.
7.4.7.1.4 Given the social importance that has the protection of the rights - same object of relaicones social the coercive acts directed to such aim they can arrive to be applied like prevention means to avoid new crimes like repression of a committed previous act. It involves in many cases a pain that supposes freedom deprivation.
7.4.7.1.5 Within the guarantee of the right they deserve special attention the prevention of the rights derived from the relations. When the relations are of dominion and the natural rights can be conculcados by the same law, the ethical interpretation becomes extremely complex in safeguard it of the application of an unjust law. For that reason the legal system must tend to sanction the justice, and to be he himself that rectifies the conditions of all those relations that imply a situation of dominion of a part of the society on another one.
7.4.7.2 Punishing the transgression.
7.4.7.2.1 The transgression of the law can be punished by the society like way to restore the conculcado right, with aim to avoid the repetition of the fact and to reeducar socially to the transgressor in order that it respects the relations on which the society is based.
7.4.7.2.2 The essence of the pain is that he is proportional to the rights that force. To this aim immediate goal is to avoid the reiteration of the criminal acts, trying not to reduce more of the fundamental rights of the suffered one.
7.4.7.2.3 The freedom deprivation whereupon usually grieves to those who attempts against the other people's rights is not in many cases the suitable pain, because, after the right to the life, the freedom represents the essential fundamental right of the human person. For that reason the systems must legal-penitentiaries establish ways of compensations that replace the rights with activities that benefit the society and are not destructive of the personal freedom.
7.4.7.2.4 All pain must contain between its objectives the social rehabilitation of the suffered one. For it the society must invest sufficient efforts so that the punishment which serves as a public example is it also in which of the respect to the law the communal property is followed, and that attacks destroying the rights established within the framework legal not only harm a singular right but that it repels in the international reliability whose deterioration is a badly social one.
7.4.7.2.5 The penal policy represents the social x-ray of a community. Its dimension expresses the social coherence; its justice, the ethics; its quality, the responsibility; the diversification of pains, the maturity.
7.4.7.2.6 So that a penal policy is effective also needs that he is efficient, because the preeminence of the right to the freedom demands suitably quick a judicial resolution in the clear time and in the verdict. So bad they are for the society the penal policies lasas, by which it is had little in the social order, like the ejemplarizantes penal policies in which the sentence verdicts do not adjust to the reality of the conculcados rights.
7.4.7.2.7 The social reintegration of the suffered one after fulfilling its sentence is based in its real capacity to exert the fullness of its rights and to freely establish relations like any other citizen. It not obsta for the legal recognition of the social danger of the reincidente.