Legal Validity and the Effectiveness of the Rule of Law: With Examples from Digital Advertising
By: Prof. Dr. Camilo Alfonso Escobar Mora, founder of LEGADLLY, an executive program for lawyers on legal validity and the effectiveness of the Rule of Law, with examples of digital advertising — legadlly.ca.
Contact: camilolaw@legadlly.ca
It is clear that law only resolves problems when it is properly understood. This does not simply mean knowing the forms presented as “norms” within a State, nor merely arranging them hierarchically according to their nature. If that were the case, there would be several “laws,” equating law with statute and understanding it as the “legal” system composed of all its “rules.” Law is the juridical ought-to-be—what must exist, legally, in a given case; that is, how the legal relationship must be, how it must exist, juridically. This perspective transforms and enables everything, including the necessary harmony between what are known as rules and principles of law. Legal rules concretize elements of the juridical ought-to-be with respect to specific issues, facts, and content, while principles ground the way in which the entirety of the norm—created through the union of rules and principles—is fulfilled, juridically.
To say that everything depends on whether one is operating within the “legal system” known as common law (Anglo-Saxon) or civil law (Romano-Germanic) is an unnecessary complication. Confusion about the nature of law causes the focus to be lost on what is juridical, due to arbitrary viewpoints about law (resulting in juridical unworkability). This leads to a lack of clarity about the Rule of Law and may even give rise to the belief that several “Rule of Law” systems can exist depending on the prevailing “legal culture.” That is anti-juridical. What does exist is diversity in juridical forms through which the State, grounded in the juridical ought-to-be, takes shape. For this reason, legal validity is the correspondence between the being (the form) of a case and the juridical ought-to-be. It is not anti-juridical formalism, nor compliance through blameworthy forms, nor an attempt to comply with certain rules while ignoring their entirety. The usefulness of the norm lies in the fact that it is any form through which freedom is clarified—including its limit—namely, its elements, what are known juridically as “rights and duties.”
Of course, within the anti-juridical dimension of what is merely legal (that which relates to statutory law—what must be fulfilled in order to meet the juridical ought-to-be, meaning fulfillment of the entirety of the norm and the exercise of freedom/respect for its limit), contradictions between “norms” may exist. However, law itself is coherent, sufficient, and evidently evolves when (new) elements of freedom—that is, of justice (what conforms to the juridical)—are clarified. Diligence is the form of compliance with law; therefore, it depends on each person’s conduct according to the form of the case. A case is valid when the manner in which it proceeds follows the direction of what is juridically required. That is juridical form—legal validity. Fault is the negligent or intentional breach of law, that is, acting outside the juridical. Rights are not abused; they are exercised (according to their form) or disregarded. One does not “abuse” freedom; one either exercises it or acts outside it, juridically. Abuse, as a general fact, is what is anti-juridical: the breach, the failure to realize the juridical ought-to-be in a case, attributable to one or more persons, whether individuals or organizations, even through passivity (any form of juridical noncompliance).
Humanity is only one; therefore, freedom—and its limit—is one. Practice does not determine validity merely by existing, because it may be good (valid) or bad (invalid), juridically. Law is not formed simply by the existence of so-called schools of law or legal theories; yet their valid findings form part of it. A lawyer who relies exclusively on what is termed legal positivism or natural law theory, treated as opposing positions, is not truly a legal professional, because such a lawyer lacks professional clarity (integrality, awareness) regarding what is juridical and therefore does not fulfill their professional role in accordance with law. Everything that contributes to what is juridically valid forms part of law; everything is connected and applies in each case according to its form. This is what juridical admissibility (procedibility) consists of—that which must be addressed in a case for it to be valid; in other words, juridicity.
The need for an optimal methodology—meaning a form of compliance with law—is evident. Such methodology exists when: (a) the juridical indicators are clearly identified, that is, the elements required for compliance with law; and (b) these indicators are effectively fulfilled in some manner. These indicators clarify, through their form, when law has been breached—that is, the form in which conflict exists, including the form of fault and, consequently, the responsibility that must be assumed. It is here that one can ultimately understand why this topic—legal validity, and within it the Rule of Law—can be explained through examples from digital advertising. Given its dynamic nature, digital advertising presents phenomena (legal issues) such as: the scope of what is juridical and anti-juridical in the handling of information; the determination of the juridical ought-to-be of an advertising piece, both in the abstract and in each case in which it is used; the diligent generation of artificial intelligence (AI) for personalization directed at the advertising recipient; the juridical harmony required in the global digital context; the preventive and corrective responsibility borne by individuals and organizations involved in the creation, communication, and management (of the effects) of advertising; and, in general, the effectiveness of the Rule of Law in this domain.
This is a compelling subject—and a technique—that enables legal professionals to understand law thoroughly and to achieve optimal juridical solutions. We hope you will benefit from our executive program.