OTHER INTELLECTUAL CONTRIBUTION OF DOÑA Leire Pajin NOVEL
(The rule of law the State of Software )
concurs
While studying the "Bill for Comprehensive Equal treatment and non-discrimination", which finally appeared as such, may be of interest for readers of this blog know a new intellectual or doctrinal contribution of Ms. Leire Pajin, our incredible but true Minister of Health, Social Policy and Equality.
I should clarify, to avoid misunderstandings, that not I have no grudge to Ms. Leire Pajin or have taken her . Absolutely. If appearing frequently in this blog is for two objective reasons. The first is that Ms. Pajín owns a " Ministry of almost all" because between the Health , ever-expanding concept, the Social Policy, a concept so broad that it would suffice with her to make difficult to define a Ministry, a Ministry or a Commissioner of the EU and Equality , which is given or not given at all times and everywhere, all owners of the Ministry is empowered to act without any rest . The second objective reason is that Ms. Leire Pajin particular, is granted, in fact, little rest and their verbal performance is far ahead of second member (or "member" if you prefer in view of its current Secretary of State , Ms. Bibiana Aido) "Government of Spain" ("GoE") more speech, at least in public and the public . It is the "respondent" top this "GdE."
But also a third case, which comes into play and my subjective assessment. And, Ms. Pajín being the most spoken of our "GoE" and our political world and public, is by far, the most heuristic the Government and the universe. I think I've ever mentioned this to the prolonged crisis of contemporary thought, in which the heuristic absent. The heuristic (Greek εὑρίσκειν , euriskein : invent) is the ability to innovate, to invent, say and do something new . Modern thinking is very modern everything Modenna you want, but it is very boring, does not provide new one, full of refried and regurgitation of ancient topics. To cover the crisis of thought, has had to invent the "weak thought", which, well presented, it is illogical to blame anything. In this desert landscape, barely sticks out from time to time, a syncretism (also from Greek συγκρητισμος , which unites the prefix συν : with, together, at once, and the verb κεράννυμι , kerannumi : mix, especially water and wine), ie a mixture of diverse ideas and incompatible sources.
Well, in this DRYLAND of ideas, Ms. Leire Pajin turns out to be a Champion Heuristics. It's almost the only supplier of new concepts, original ideas, creative approaches. Hence the frequency of my "post" featuring her.
Without going any further, Ms. Leire has recently launched several significant developments. The first and most primary of which I speak today, has been the notion of law "not interpretable" . The historic day January 12, 2011 , referring to the Law 42/2010, of December 30, which modifies Law 28/2005 of 26 December , of health measures against smoking and regulating the sale, supply, consumption and advertising of products of snuff (snuff abbreviated anti Act), Ms. Leire has released this legal thought, hitherto unpublished: that of a positive rule not subject to interpretation .
decades, it was considered that all legal precepts, the time to think or run your application, required a working understanding, more or less difficult, the provisions, well ordered, banned or allowed to do or omit something or other in such and such circumstances. It should be understood thoroughly circumstances, the " this " or "the other " and order, the prohibition or permission. It should be understood before, to whom is the rule or standard, who are its target . And all these efforts at understanding, and understanding that they were called in one word: interpretation. It was agreed that the old aphorism "in claris non fit interpretatio " (ie when the statute is clear, it is interpreted) was a mistake, even a large error.
So far, to the overriding claims of Ms. Pajín, the common opinion was: by clear which are the words of a statute, we must always place the words of text on the context, it always pays to know the history always important to take account of social reality time that these words are to be applied , always thinking about the spirit and purpose of the rule and always have to weigh the fairness . Thus, p. eg., many rules are not applied according to their strict literal, because the result would be absurd and fundamentally unjust. These results are avoided with an understanding of the words of a provision related to the items listed, which has been called performance criteria or standards hermeneutic. The hermeneutic (also from Greek ἑρμηνευτική , interpretation) is the ερμηνευτική τέχνη the Hermeneutik tejn , the "art to explain, translate, or interpret," referred to texts of human language.
Since 1974, contains our Civil Code, Title Preliminary-a series of principles considered by lawyers as a quasi-constitutional "Article 3 on among others, how to implement the standards, as follows:
- "1. The rules will be interpreted as the proper sense of his words, in relation to the context, historical background and legislative, and social reality of the time they are undertaken, mainly in response to the spirit and purpose of those . "
- "2. be balanced equity in the implementation of standards, although the decisions of the courts can only rely solely on it when the law expressly permits . "
In the different legal documents and for recent decades, perhaps the art. 1.1 of the Civil Code, one of the most cited provisions. But that should be considered subject to revision since Ms. Leire Pajin, Champion heuristics, proposed, with his usual impetuosity, the idea of \u200b\u200b"law uninterpretable." Because obviously, the Law 42/2010 of 30 December the recent law anti snuff consumption, it has different characteristics from other laws. If that Law 42/2010 is "not interpretable" could be "uninterpretable," Also, the Mortgage Law and the Law on Hunting, for example. We think, therefore, new scenarios, such as auto-computing application of law, not through an interpreter.
About thirty-five years, I admired Professor Prieto-Castro and I talked with some frequency, with its almost permanent characteristic humor ("Faustian" he called it) the idea of \u200b\u200ba device called Justizklavier (piano justice, literally), which had been proposed some time ago, in sentencing automatically. It was undoubtedly applicable to other resolutions. And happened, in fact, the Austrian satirist Alexander Roda Roda (1872-1945) had long been narrated a vision in which a potentate mogrebí (Roda Roda said so) had a visit from a stranger who wanted to sell a revolutionary invention with which one could retire early, for example, all lawyers, judges and shyster. The inventor had developed a " Justizklavier " which functioned as a piano, with keys for black and white incriminating circumstances for exculpatory evidence, defenses and mitigating circumstances. The apparatus allowed to obtain the verdict immediately after pressing the appropriate keys. Could, moreover, to avoid boredom of excessive determinism, add a random element of correction, which would bring the results of the piano to reality. In the story of Roda Roda, the potentate was very satisfied with the " Justizklavier , but in the end not going to buy because the inventor had forgotten to add " Justizklavier " two pedals, one with the words "piano " to "offenders loyalists," and another marked "forte " to " opposition . "
do not know what to think Ms. Leire Pajin with his revolutionary idea of \u200b\u200blaws uninterpretable. But in our times, the "Justizklavier" has been replaced advantageously by computer main elements: the hardware and software names which have nothing to do with the pedals omitted. To me I can not think how to apply the law without interpreting it. But I have to occur anything like it, because I've already seen. I've seen the text of a law, a decree or a municipal ordinance may be excluded from the legal interpretation and, therefore, who are "uninterpretable." Just adequate "computer application".
encounter if you bought applications, for example, what do u get a positive rule sends or gives them either easy it is dispensing with the computer application that would require interpretation of policy nuances. Since it can not be entered more than what the computer application provides, nothing else counts. Have not found these inventions and guidance for self-assessment of taxes of all kinds? Have you ever been able to record relevant data in accordance with the law or the tax? I, of course, I have the experience that computer applications can be omitted and omit extreme complicate things, but are clearly specified in the standard, usually in favor of the run. Luck has one, good luck, if, with the flaws of " application, navigates to the appropriate administrative office and is there an official who is considered public servant and one of two things: either have a software application better than mere subject or is able to recognize that the computer application is badly done and allows, to print or not, dip pen and be covered by tax law or ordinance in its entirety. Unfortunately, it is not uncommon in the administration and enterprise-especially credit institutions called "what you find are people for whom the application is only valid computer ... if the " system" has not "hung ."
I do not know how the application of a law can be done without interpretation. But I know that would achieve a similar result if all the positive rules contain an additional provision, which I would term, sincere and honest, "First Additional Provision and Chief " more or less as follows: "This Act [or this Decree, the Regulation, this Order or this ordinance] apply in all cases according to instruments computer to establish the Directorate General of Information of the Presidency of the Government. " The thing is rounded with a regulation of the Supreme Judicial Council approved the mandatory use by Judges and Magistrates of applications to make all kinds of resolutions court. So we would spend the "rule of law " to "State of Software " more modern ( happen, say, and probably say bad, because we are almost past). But there is my contribution to seeing the reality of things. yet I say no more than criticize.
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