Second Theme: The Concept of the Legal Rule

and its Characteristics

First: The meanings of the legal rule

Jurisprudence defined the law on the basis of experts and on the basis of the end and
based on the distinctive characteristics of its rules, but the prevailing trend takes the
definition of law by citing the distinctive characteristics of its rules and the following
definition is one of the most important definitions of the whole and comprehensive
concept of law, the law is a set of general and abstract rules that govern the behavior
of individuals and their relationships, which is entrusted with ensuring respect for
what the public authority in society has the power of reparation and obligation, and
therefore we conclude three essential characteristics that distinguish the legal base
from other other social rules which governs relations within society, and is
represented in that it is a binding rule1.

Second: Characteristics of the legal base:

1. The legal rule is a rule of social conduct:

The general principle that the legal base exists where the community exists, and it
is necessary to regulate what arises between the members of this community
between relations and ties, the law does not regulate in man, except what appeared
from his behavior, so the law has nothing to do with the intentions of man or his
feelings or his conscience, he does not care about hidden hatred, but intervenes for
the occurrence of harmful behavior that takes a harmful external appearance, the
mere thought of someone in committing a crime and the determination to do so,

1
Ali Filali, Introduction to Law (Algeria), Move Publishing, without edition, 2010, p. 43.
does not make this person a reality entitled to the penalty of the law, as long as That
this thinking did not appear abroad with visible material works that indicate it.

This does not mean that the legal rule governs only the external conduct of
individuals that the law does not have an effect or consequence on intentions if they
are accompanied by and related to external conduct, but rather that they are taken
into account. The penalty for intentional homicide differs from manslaughter
because the intention to take the life of the victim accompanied the act of
manslaughter because the perpetrator had no intention of killing the victim in the
first place.2

1. The legal rule is general and abstract:

Generality and abstraction are inseparable characteristics in the legal rule, and
generalization means that it does not concern a specific person in the first place, as
it addresses the general members of society without the slightest distinction between
them.

What is meant by abstraction is the subjection of similar facts or persons in identical

circumstances to the same legal rules, and thus deprivation leads to equality and its
provision is applied whenever the conditions for its application are met.3

However, there are legal rules, although they do not address all individuals, but they
are characterized by generality and abstraction, as their ruling goes to a particular
sect, as long as it addresses the members of this community in their capacities and
not themselves, for example, the legal rules for lawyers or notaries, as well as may
apply to one person, such as the head of government, yet they address him in his
capacity and not in himself, defining his qualities and regulating the manner in
which he performs his duties.

2
Ahmed Al-Saeed Al-Zaqrad, Introduction to Legal Sciences, Book One, Theory of Law (Cairo), Dar Al-Nahda Al-
Arabiya, without edition, 2001, p. 33.
3
Professor Taleb Yassine, Summary of Lectures on Law, University of Algiers 03, Faculty of Economics,
Commercial Sciences and Management Sciences, p. 3.
2. Legal rule binding rule (penalty):

As we have already indicated, the law aims to ensure security and stability in society,
and this purpose will not be achieved if we leave individuals free to respect the legal
rule or not to respect it, so coercion was the most important element that
distinguishes the legal rule from the rest of the other rules such as religion and
morals, as the penalty is a means of pressuring the will of individuals in order to
respect the content of the legal rule.

1. Characteristics of the penalty: The sanction in the legal rule is

distinguished from other legal rules by certain characteristics: it is current, tangible
material, and that there is an authority that undertakes its signing.

1. It is immediate: in the sense of deferred applied as soon as the legal

violation is committed because of its impact on the addressees to respect the law.

2. Be material: We mean by tangible material that it takes an external

appearance embodied in the coercion that affects the violator, whether in his money
or body, or restricts his freedom, contrary to other rules such as morals, for example,
which are limited to moral retribution.

3. Signed by the public authority: In order to achieve justice, the public

authority for the material and human means it possesses on behalf of the society
expects the penalty, and the latter is specific, i.e. included in the law without waiting
until the act occurs to think about it (the penalty).

4. Types of penalty: In the legal rule, the penalty takes different types,
which can be summarized as follows:

5. Criminal sanction: It is the most severe type of sanctions, as it relates

to the rules of criminal law because it is imposed in the interest of society and the
public interest, and falls according to the gravity of the crime and according to the
social value protected, and is in the form of the death penalty, imprisonment, sex,
arrest, house arrest or financial fines, confiscation, or deprivation of civil and
political rights. It is determined by the gravity of the criminal act committed.

6. Civil sanction: The civil penalty is a penalty of a reformative nature aimed

at reparation for the damage caused to the injured person4, and it occurs when
attacking private property and is framed by the rules of civil law and its many and
varied forms.

1. Specific performance: It is obliging the debtor to perform what he has

committed to when possible, such as handing over a deposit to the depositor, or
handing over a child to his legal custodian.

2. Execution in return (compensation): in the event of inability to pay, as

compensation is made in cash equivalent to the loss or loss of profit suffered by the
creditor.

It may also be by returning the situation to a place on it, by declaring the invalidity
and non-enforcement of legal acts.

3. Administrative sanction: The sanction in administrative law is what the

administrative authority imposes on state employees and employees as a result of
their violation of the rules of professional work.

This sanction or punishment may be according to the degree of error such as

warning, reprimand, suspension from work, final dismissal from office, demotion
in rank or delay in promotion.

Third: Types of legal rules

The issues that the law regulates vary and their importance varies for achieving order
and stability of relations within society, important issues for which the legislator has
set legal rules that individuals cannot exclude their provisions or agree among

4
Dr. Ali Filali, Introduction to Law, National Foundation for Typographic Arts, Algeria 2005, p. 31.
themselves to violate their provisions or agree among them to violate their
provisions, jurisprudence calls them jus cogens legal rules, while ordinary and
simple issues that do not mean the order of society, but directly concern personal
correctness, the law left it to their owners to regulate them, but the law intervenes
for the purpose of helping those concerned in organizing their relations in detail
about The path of legal rules that jurisprudence has settled on calling
complementary legal rules.

1. Peremptory norms: The commentators of the law defined the jus cogens
legal rule as those legal rules that may not be agreed to violate their provisions or
evade their content, and every agreement to the contrary is null and void, they are
absolute rules of application, there is no freedom of individuals with regard to
everything that affects them by amendment or exclusion, as they represent the
supreme will of society to legalize an activity in some way.

Peremptory norms can be identified based on their capture, where we are dealing
with a peremptory legal rule if it appears from the words that individuals have no
choice in applying or excluding them, from these words or phrases the following:
invalid, not permissible, asking, any condition to the contrary is without effect.

2. Complementary rules: They are those rules that apply to individuals unless
they agree to violate them because they are not related to the components of society
or its political, economic or social entity, but only related to the interests of the
contracting parties.

Also, the legal rule is considered complementary if the words used by the legislator
to address those bound by its provisions indicate that individuals may agree to
violate its provisions, such as: "unless this right is granted by agreement" and "unless
otherwise required", "and unless the agreement provides otherwise"
For example, Article 350 of the Civil Code states: "Anyone who embezzles
something that does not belong to him is considered a thief and shall be punished
by imprisonment from one to five years and a fine of 100.000 to 500.000 dinars..."

For example, article 368 of the Algerian Civil Code states: "Therefore, the thing
sold must be exported to the buyer, and the sale shall not be effected unless it reaches
it, unless there is an agreement to the contrary."

In other words, if the legal rule relates to public order and morals, it is a peremptory
norm, and if the legal rule is not related to public order and morals, it is a
complementary rule, what do we mean by these terms?

Public order is the set of bases intended to maintain the proper functioning of the
public interests in the State and to ensure security and morality in transactions
between individuals so that individuals may not exclude them in their agreements."5

Among the fundamental principles and foundations that are considered in

contemporary societies as elements of public order are those on which the family
system is based, such as marriage and divorce.

As for public morals, it is a set of basic moral rules necessary for the establishment
and survival of society healthy from decay.6

These etiquettes are influenced by certain factors specific to customs, traditions and
religion, so it is considered a relative idea that varies according to time and place, as
Islamic societies do not have the space for coexistence between men and women
except within the framework of marriage, but it is legitimate and permissible in
societies.

5
Abdul Hai Hijazi, The Theory of Obligations, Kuwait, Kuwait University Press, Part One, First Edition, 1982, p.
341.
6
Dr. Mohamed Said Jafour, Introduction to Legal Sciences, Al-Wajeez fi Theory of Right, Third Edition, Dar
Houma, Algeria, 2002, p. 121.