Sistema Legal Argentina
With regard to coexistence within the constitutional block, i.e. when a human rights treaty of Article 75, paragraph 22, and the dogmatic part of the Constitution regulate the same matter with different provisions, the solution in principle is to apply the norm of the Constitution. Since the reform, article 75, paragraph 22, stipulates that the above-mentioned human rights treaties must supplement the dogmatic part of the Constitution and does not abrogate any article of the Constitution. Notwithstanding the foregoing, and although constitutionally or legally inadmissible, the principle pro hómine (for the benefit of man) 14 is becoming increasingly important, according to which two or more norms forming part of a constitutionalized treaty and the dogmatic part of the constitution are applicable to a particular case, the one that most effectively contributes to the protection of the protected right. This does not imply the repeal or derogation from the Constitution, since it is simply a rule of interpretation to designate the rule applicable to a particular case.15 The judicial organization responds to the federal character of the Argentine State. So, on the one hand, there is a federal judge who has jurisdiction across the country and deals with drugs, smuggling, tax evasion, money laundering and other crimes that affect the income and security of the country. On the other hand, each of Argentina`s provinces has a provincial judicial power dealing with ordinary crimes (also called ordinary justice), with its own judicial bodies and procedural laws. The Argentine system does not require the requirement of assistance in five judgments, which are not interrupted by another, on the contrary, nor the approval of a certain number of ministers by vote. In the Argentine Republic, the first two sources of law are those referred to in the provisions of article 17 of the Civil Code: “Customs shall confer rights only if the laws concern them or in situations not regulated by law”.
In addition, it is of great commercial importance, as it is used not only as a formal source but also as a material source and fulfils an integrative and hermeneutical function29. 2.1 The law In order to obtain a better explanation, we will use here the word law in its material sense, that is to say as any written norm sanctioned by a competent authority5. We begin with the sources of written law because they are the most important in the Argentine legal system. The order of precedence of these norms in the Argentine Republic after the constitutional reform of 1994 was as follows: constitutional block, international treaties not listed in article 75, paragraph 22, of the Constitution and laws approved by Congress. The question of the coexistence of the norms of international law with those of a domestic nature and, in particular, with the national constitution itself, considered as the fundamental law of each country, as well as the diversity or uniqueness of national and international sources, has led to the creation of two different positions or theories in the doctrine: 11 – BIDART CAMPOS, G.A.O., paragraph 11. 17. A block of constitutionality, according to the system of each state, can be understood as a normative sentence that starts from the constitution and adds and contains provisions, principles and values that are substantially constitutional outside the text of the written constitution – for example, international treaties, customary law, jurisprudence, etc. The value of this block lies in the possibility of combining useful elements in the interpretation of the Constitution and in the integration of its normative gaps. It is an independent body with functional and financial autonomy, whose mission, in accordance with article 120 of the Constitution, is to promote the work of the judiciary in defence of the rule of law and the general interests of society, in coordination with the other authorities of the nation. It is a body composed of two members of the Public Prosecutor`s Office and the Ministry of Defence. The former unites and coordinates the actions of prosecutors and the latter that of court-appointed lawyers. It is responsible for representing and defending the poor and absent, representing public interests and providing necessary legal assistance, not only to low-income people, but also to those who refuse to have a private lawyer.
The Federal Government is obliged to guarantee the right to judicial defence. Argentine law is the legal system that governs the Argentine Republic, i.e. its continental and island territory, its territorial waters, consulates and embassies, civilian vessels flying the Argentine flag in international waters and public vessels. Having clarified the issue of the legal training process in Argentina, we still need to clarify how a State`s legislation is presented, which can be two: the system of incorporation or flexible laws and the system of codification. Like most Latin American countries, the Argentine Republic adopts the codification system,22 which is reflected in Article 75 (12) of the Constitution, which states that Congress is responsible for “promulgating civil, commercial, criminal, mining, labour and social security laws…”23 The repeal or repeal of an Act of Congress is effected by the same body as it must have by an equivalent rule, a rule exempted by the implicit exception arising from non-application and by the norms of the higher hierarchy. It is a general principle that customary law cannot depart from the law.24 In the concept of federal law, some authors also belong to regulatory decrees, understood as the legal norms emanating from the executive branch in the exercise of a co-legislative function empowered by the Constitution itself,25 which consists in regulating the laws dictated by Congress. to make them effective in practice. Case law is the set of judgments of uniform orientation rendered by the courts of the State in order to resolve similar cases. This uniform approach is in practice set out in a general rule applied by judges to decide similar cases31. In the legal regime we have analysed, which is mainly regulated by law, case law is in principle a subordinate source of law, since it must operate within the legal framework.32 ABSTRACT: Knowing how law is created helps to understand how it arises, evolves and is modified. The lawyer must know what are the main and secondary sources of law on which he relies when submitting an application to the court. Each country considers its various and particular processes of legal creation, comparative law offers the possibility of visualizing other legal systems in order to enrich our knowledge of jurisprudence.
This article presents a study of the sources of law in Argentina and briefly describes the legislative processes in Mexico and highlights the differences between them. 1. INTRODUCTION: Knowing where the expressive principles of justice and order of a society come from is a major topic for law students. Each legal norm has a specific origin and its binding nature obeys the different factors, actors and procedures from which it is derived. Sometimes a company`s practices are recognized as mandatory and part of the law. Similarly, the Tribunal`s interpretation may, in some cases, create a system of rules. However, social forces also promote the formation of norms by subjecting them to a certain procedure and creating a written legal system. The issue changed dramatically when, with the last constitutional reform in Argentina in 1994, supranationality began to be accorded constitutional importance. Indeed, it has been considered inadmissible for a contracting party to derogate unilaterally by law from an obligation under a bilateral or multilateral treaty; This would be the negation of a pillar of international law such as the principle pacta sunt servanda10. The above-mentioned reform combines article 31 of the dogmatic part with article 75, paragraphs 22 and 24 of the organic part, and adopts the following regime: the formation of a block of constitutionality 11 – which in this case consists of the national constitution and the human rights treaties listed in paragraph 75, paragraph 22, constitutionally – 12, with the supreme hierarchy; Immediately below are the other treaties ratified by Argentina and, in the third stage, the laws emanating from Congress.