What Is Legal Force?
Legal force refers to the principle that decisions, agreements and legal rules can bind parties by issuing certain obligations on their behavior. Legal force is a designation granted to elements of the legal system in order to facilitate order and accountability within a legal system. In essence , it is the "power that a legal rule or decision has to compel human behavior or to bind compliance." Legal force is the "force of law," in that the term is taken solely from legal and political contexts to designate the ability of the law to affect all involved parties.
Force of Law in Contracts
For a contract to be legally enforceable, it must have legal force. Under the law, a contract that is legally binding is not only an expression of the parties’ mutual will but also a law that they impose on themselves. Thus a contract has legal force if not only has the parties’ will been expressed but also the law recognizes its enforcement and sanctions the violation thereof.
In order to have legal force, the contract must be possible, lawful, and permissible without contravention to public policy
• the possibility of performance;
• the lawfulness of performance;
• the permissibility of performance.
Consideration and mutual consent of the parties is required for a contract to gain legal force. A contract has no legal force if the parties did not consent to its terms or if its terms are against the law. That is why a valid contract should not be unlawful and not against public policy. Contracts can be formed upon a baron’s tooth, or an amount of money, or even an amount of rice. For instance, if A orders food from a restaurant B, A has made an offer, which B has accepted by delivering the order. The contract is formed at the moment of agreement on the price and the delivery of the food. Without consideration, the contract is not legally binding, much less if the consideration be illegal or against public policy.
Jurisprudence and Legal Force
The decisions of Courts acquire legal force in different ways. A particular way to acquire legal force is that the decision becomes final and cannot be challenged in court anymore, as there are no more legal remedies for that same issue. After that decision, all courts should follow the grounds of the decision and all parties involved must act accordingly.
As a general rule, decisions are final and become binding after all possible avenues of appeal have already been exhausted. As we have seen in previous posts, the legal remedy of appeal may have different legal appellations depending on which instance it is in. Thus, for example, a decision of Administrative Board may not be challenged per se in court. Instead, it is subject to an "indirect" judicial review through an Administrative Board decision that overrules the former one. A "direct" judicial review exists only before the Constitutional Court, which is an extraordinary resource and that requires the severance of the decisions made by lower courts in the hierarchy.
The foregoing means that, as a general rule, the decision of a District Court should be further appealed to the Supreme Court so that the decision of the latter one becomes final and binding.
However, this is not the only way in which a decision acquires legal force. It is also possible that a particular precedent of a court of a higher hierarchy or of a binding source of law is directly applicable and law of the land for lower courts.
Thus, for example, the essence of some decisions may be that they are of general interest (like the case for constitutional jurisprudence) and that the Supreme Court decision shall be immediately applicable. This is deemed "tutela" (i.e., protection). In such case, the parties shall expect that even in the absence of an explicit ruling making it immediately applicable, the decisions of the Supreme Court have legal force and are binding, regardless of the instance in which they have been issued.
The same happens when the Supreme Court makes statements about the interpretation and application of laws, international treaties and regulations that are binding or mandatory at a particular level, like at department, country or system-wide level.
Statute and Legal Force
The legal force of legislative acts comes from the enactment process – usually some form of public vote or approval process, followed by executive authentication via signature or seal – and not from any inherent quality in a particular piece of legislation. In simple terms, all laws are the same until they have made it through the enactment process and have both been fully ratified by the forces that govern the particular jurisdiction and published in full to the public they will affect . After that point, laws can be enforceable (or at least, are more likely to be – the semantics get tricky) by governmental bodies that hold appropriate jurisdiction over both their promulgation and the contexts they create for the common good or the public welfare. In this sense, Legislation has the one true aspect of force – it is the only action of man, both individually and collectively as a society, that can command such governance. The ability to command jurisdiction over the lives of so many, regarding so many different aspects of their lives, by and large springs from the approval of so many people, both empowered and not, that again, it is unsurpassed.
Enforcing Legal Force
Enforcement plays a crucial role in the maintenance of legal force. The various law enforcement agencies are one of the primary means through which legal orders are executed, and legal provisions put into effect. In addition to law enforcement, other authorities, such as the judiciary, also serve important functions in bringing about compliance with laws and legal determinations. In administrative law, enforcement and implementation may be performed by administrative agencies as well, subject to delegated authority. Enforcement can take many forms, including the imposition of fines, criminal charges, civil liability, and administrative sanctions. While an order may have legal force from the outset-thereby impacting legal rights, duties, and powers as a matter of law-enforcement actions, including actions by law enforcement and administrative agencies, can affect the effectiveness of a legal order.
The power to enforce the law is based in the Constitution and laws of the state. This power is generally vested in the executive branch. As a practical matter, however, the line between the executive and legislative branches and the judiciary has often been blurred, especially in administrative law contexts. And the powers of agency enforcement often come from authorizing statutes, making the agency a tool of either the executive or legislative branches. An official’s jurisdiction therefore is not strictly limited to that official’s branch. Different officers and other actors bring their respective powers to bear on a matter, including on enforcement.
Challenges to Legal Force
There may be a number of challenges that could galvanize or undermine the force of law in certain contexts. For instance, a violation of a legislative provision by an individual or entity might not result in sanctions if the appropriate government agency or enforcement authority believes that it is not necessary to enforce the law in question. Similarly, a judicial disposition on an issue could be subject to review by a higher court, thus rendering the earlier determination ineffective for the time being or invalid altogether. The same principle applies in the context of contracts where an obligation created pursuant to the contract may be governed by a number of caveats , making the effectiveness of the obligation conditional.
Issues of jurisdiction may also represent significant challenge to the force of law in many cases considering that legislative and judicial provisions might be invalid within certain jurisdictions on the basis of ineffectiveness or lack of application. The manner in which legislative provisions are applied or interpreted may also create issues with regard to their force. Provisions that are not clear in meaning may result in conflicts. Furthermore, because the adjudication of a dispute between parties may fall within the ambit of more than one court, the possibility of conflicting decisions exists. The challenge is further exacerbated by the fact that certain judicial decisions may not have been published, thereby limiting the ability of later courts to consider earlier interpretations of certain provisions and principles.