Derecho Romano - Semana 2: La norma como base de lo sustantivo

Course Administration and Methodology

During the second week of the Roman Law course, students are reminded that the virtual classroom now contains a simulator representing the types of questions that will appear throughout the module. Additionally, a five-question test will be available from tomorrow until Sunday. Preparation for this assessment requires a thorough review of the provided slides and the specific compendiums available in the virtual classroom. The class follows specific pedagogical rules: students must enter synchronous sessions punctually to avoid interruptions, focus their efforts on self-evaluation and learning, utilize digital resources, maintain communication with the faculty regarding doubts, and apply logical-juridical reasoning to the assigned activities.

Introduction to Roman Law and the Substantive Basis

Roman Law is defined as the comprehensive set of norms, precepts, and principles of a coercive nature that regulated the relationships between Roman citizens and their society throughout various historical epochs. It stands as one of the most influential legal systems in Western history, with origins tracing back to ancient Rome. This system is characterized as a written law based on principles that govern the social, political, and economic life of Roman society. Furthermore, it has served as a foundational source for the construction of numerous modern legal systems. The current study focus is "The Norm as the Basis of Substantive Law," which encompasses the systems of Roman law, the legal status of persons and capacity, family institutions, and the protective mechanisms within the Roman familial structure.

Systems of the Legal Order and Kelsen's Theory

A legal system brings together the structures and modalities of operation for the entities responsible for applying legal rules. This includes both jurisdictional and non-jurisdictional orientations. To understand this, one must distinguish between "order" and the "legal system." Order is understood as discipline, organization, and factor of security—a state where things occur according to a regulating principle, similar to the natural order seen in biological phenomena. A legal order, specifically, is a system of norms governing the legal organization of a specific place and time. This order is dynamic and varies by city, province, country, or historical period.

According to Hans Kelsen, the legal order is defined by "positive law"—the written law produced by a legal act that derives its meaning from another higher norm. This hierarchy is visualized through Kelsen's Pyramid. At the apex is the Constitution, followed by international treaties and conventions that benefit the country. Below these are organic laws, ordinary laws, regional norms and ordinances, decrees and regulations, agreements, resolutions, and other acts of public power. Within this framework, legal acts are written agreements where parties (natural persons or juridical entities) specify rights and obligations. Natural persons are individual human beings, while juridical persons are entities like companies represented by a manager. Examples of legal acts include debt repayment, birth registration, or real estate purchases. Kelsen posits that a norm gives sense to an act by ordering, permitting, or authorizing specific behavior.

Positive Law vs. Natural Law

Positive law is the set of written norms established by a sovereign state organ with legislative functions—in the context of Ecuador, the National Assembly. It may be currently "vigente" (in force) or non-vigente (repealed by subsequent laws). Unlike Natural Law, which is inherent to human beings and based on morality, ethics, and divinity, Positive Law is imposed upon the collective to ensure coexistence. While