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Negotiation and Mediation Instead of Litigation - Commercial Mediation and Arbitration in the NAFTA Countries

Author(s): 
Luis Miguel Diaz
Page Count: 
8 pages
Published: 
November, 1999
Practice Areas: 
Commercial Disputes,
Mediation,
NAFTA

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As a student of law I was taught to distinguish between legal and moral validity. My professors said the law is created by voluntary acts of humans in forms such as judgements, statutes, contracts and treaties. Ethics is derived from nature or reason.  
 
I delved into the rivalry between the theories of juridical positivism and the doctrines of natural law with the purpose of understanding the difference between "the legal" and "the just". I concluded that legal is what the authority determines and just is what disqualifies everything that does not concur.  
 
What shocked me was that both of these schools of thought referred to the what and the why of the legal and the moral without an understanding of how humans function. 
 
Contemporary legal though interprets normative issues without due inquiry concerning the pivotal reality which underlies norms and values. It begins with values and norms, and finishes with norms and values. It conceives humans in an idyllic manner, be it from a legal or moral perspective.  
 
I intend to build a bridge between a hypothesis of how conflicts affect those involved and the content of law. A way of thinking constructed from the conflict experienced instead of deriving a way of thinking of how conflicts should be experienced.