CONSIDERATIONS REGARDING THE DOCTRINE OF MODERN STATE OF LAW.
Kelsenian approach shows that the rule of law cannot be reduced to simple hierarchical arrangement of legal norms without considering the content of these rules. Kelsen clear concept of "rule of law" of political and ideological meanings that it has historically dressed (Miculescu, 1998: 226).
On behalf of the rule of law, they were conquered safeguards against arbitrary government (Chevallier, 1992: 105). These meanings cannot be removed for the benefit of an abstract formalism. The hierarchy of norms is only coating a conception formal powers and freedoms that it transcribed and preserves.
The doctrine of the rule of law has faced in the twentieth century with a double contempt: contempt of totalitarian regimes, whose legal order is not based on any of the values of the rule of law and the welfare state defiance that changed towards the liberal state, which was, founded rule of law. Affirming that every State, as the legal order is a state of law, Kelsen has created a formidable dilemma for the study of totalitarian regimes. The existence of a formal legal order is not sufficient to be able to speak of a state of law. If the systems are not totalitarian state law, it is because the conception of the state and law are the antipodes of the liberal conception. If totalitarian states know an abundance of legal rules and build a legal order structural, their right not fundamentally different characteristics compared to those of liberal society; losing any size protective, he is no more than an instrument at the service of action.
2. The Doctrine of the Rule of Law
After the collapse of totalitarian regimes, the concept of rule of law has been subject to new interpretations and the rule of law served to criticize the totalitarian system (Chevallier, 1992: 107). After WWII, most countries in Western Europe were, and still are, welfare states, liberal states maximum and minimum liberal states not in the classic sense of the word. Classical liberalism promoted formal rule of law (minimal, policeman, watchman) and not the rule of substantive law which raises us to the fact that only classical liberal conception, as claimed by J. J. Chevallier, correct, or we can address another conception of liberalism and freedom (Miculescu, 1998: 230).
The emergence of the welfare state, changing the balance towards the liberal society, or so the theory fundamentals that rule of law was sitting. The objective of limiting the power of the state, which was in the heart of traditional liberalism, gave way to a state with the mission to meet the needs of all social categories of individuals and groups (Chevallier, 1992: 109).
Once established liberal system of minimal state by playing political mechanism (separation of powers, the exercise of the mandate by the people after free elections, political pluralism, etc.), conjugated social issues raised by developments in society and the failure of the old ideal human rights and freedoms, has tended toward maximal liberal state, the welfare state, which cannot be put on the same level with the totalitarian state. It is undeniable that after the Second World War, most countries of Western Europe were the rule of law, but they were and still are welfare states--maximal liberal states (Miculescu, 1998: 30-31).
Refocused the rule of law will pass by integrating new values (rights-debt) growth occurred during the expansion of the welfare state, with which liberal base was cracked and shattered seen (Chevallier, 1992: 109). Rights-debt plus-freedom rights but even alter their importance; although classical conception freedoms set limits state, achieving new rights involves mediation, intervention and State responsibility and limitless character justifies extending unlimited extension of state intervention in social life (Cf. ibidem).
As a corollary, democratic principle, far from braking contribute to the expansion of the state, will serve its powerful engine and favoring the exercise of political freedoms under pressure from voters will be devoted to new rights; State power becomes the means of replacing the nation, allowing to develop the scope of collective consumption. If the theory of the rule of law sought to stop the democratic momentum, it will arrive soon to be overtaken by it; At the same time, switching from a "democratic government" in a "democratic government" in which people no longer supports its rulers to intervene directly but understood in political life, and a "political democracy" passes and based on a "social democracy," in which rights are conceived as requirements, requirements, translate a strong logic of democratic change. Paradoxically, the theory of the rule of law has contributed to this growth by virulent criticism of the representative system and the desire to introduce democratic processes (Miculescu, 1998: 232). This mutation of the liberal welfare state to state, from state to state minimal maximal affected in varying degrees all liberal countries: where a state apparatus had been enthroned by absolutism (France and Germany), the welfare state is on the line an ancient tradition that extends and amplifies it, but the movement is even more spectacular in countries like England and the US, where the state apparatus remained relatively loose.
The welfare state is marked by a desecration of law. Legal Rationality was built rule of law in liberal democracies went into crisis; not only that the right has lost some attributes that place it fully in order of usefulness rational and legal relevance, as social adjustment device, not show any difference. A new law came with the advent of the welfare state, the right interventionist action designed as a tool in service of the state, serving the implementation of public policies and behaviors aimed not only within but also certain targets and producing certain economic and social effects, marking the transition from "laws' rules" to "measures laws" (Miculescu, 1998: 234).
Seeking to adapt to shifting circumstances and evolving right appears increasingly more like a transitional law. The right no longer has the systematic characteristics of generality and stability, which traditionally were signs and witness its rationality. Casting this right in traditional liberal legal forms had the effect of modifying in-depth legal system configuration, compromising its rationality to or loss of its traditional characteristics. The right no longer appears as a set of general rules, hierarchy and articulated texts but as a mosaic of multiple, diverse, overlapping, specifically designed to encompass social reality and thus reflect its complexity.
Parallel and witnessing the loss of effectiveness of the law; normative inflation drives a phenomenon of devaluation of law and prevents him fulfill a regulatory function satisfactorily.
In the new concept, rule of law must be understood as implying adherence to a set of values and principles that will benefit from explicit legal consecration and will be accompanied by specific security mechanisms (Ciongaru, 2011: 88). Formal Concept sees linked to a material or substantial design, which incorporates and goes beyond: the hierarchy of norms is itself one component of the rule of substantive law. There is an internationalization of fundamental human rights (Universal Declaration of Human Rights, 10 December 1948; European Convention on Human Rights, Rome, 4 November 1950); fundamental rights benefits from explicit legal consecration being placed on the highest floors of the legal system, so, the hierarchy of legal norms becomes a means of protection of rights, and the two dimensions of the rule of law--formal or substantial and material--rests each other (Miculescu, 1998: 238-39).
Rule of law, legal plan propelled the public plan has become a value in itself, transformed into compulsion and knowing axiological meanings overload. The theme will go in the political field and became a means of legitimizing power, then a constitutive element of political discourse; although it was a legal concept containing tried and proven, polished by generations of jurists, profane use by the rule of law turns "speech" sounds confusing if not functioning as authoritative argument.
The emphasis on the rule of law in the late 80s is the product of the passage, after WWII, to a substantial conception of the rule of law, in that it leaves the arid land of the art and the question of legal relations between the State and Law, to commit to a more stimulating reflections on the content of a law, under which rule of law is the antithesis of totalitarianism. In the late 80s, the reference to the rule of law symbolically marked the exit from totalitarian system.
After the collapse of communism in Eastern Europe in 1989, referring to the rule of law in the double sense, formal and substantial, it is explicit in most of the new Constitution of East European countries such as Bulgaria and Romania, which declares "state law." By art. 1 para. 3 the Constitution declares that Romania is a state of law, democratic and social state, where human dignity, rights and freedoms, free development of human personality, justice and political pluralism represent supreme values and are guaranteed. This reference to the rule of law is really a symbolic way to mark a break with communism and adherence to liberal political values.
While the doctrines of the rule of law have opinions that differ more or less on some issues concerning the rule of law, they are unanimous in the belief that the essence of the rule of law is that the state, in all its activities, is subject to legal rules (Ciongaru, 2011: 90).
The rule of law is an ideal form of state organization within which the rule of law, legislative bodies and even on all the topics of law including subordinated policymakers law is a concept that includes the rule of law, which is adopted by parliament that expresses the sovereign will of the nation, is a social response to the abuse of power.
Evolving doctrines of rule of law was formed as a reaction to European absolutist monarchical state activity. The main legal instrument of political struggle School-modern natural law (jus rationalism) was despotic monarchies abuses social contract theory, which gradually during the XVI-XVIII centuries has shaped and developed the most important principles that will subsequently be content and essence of the rule of law. All these principles have their roots in natural law; It is why we advocate that the true rule of law can only be a "natural state of law," the right to be considered the following aspects: philosophical--as a "value"; moral--that a "virtue"; sociological--as a "state"; technical and legal--as a "method, technique."
Concerning the relation between the rule of law and democracy, both as a tool to protect the fundamental human rights, rule of law implies that at all levels the discretion of state bodies to be limited by the requirement of higher legal rules, compliance with which is guaranteed by the intervention of a judge who is the keystone and the condition for achieving the rule of law (Popa, 1999: 156-157).
Some contemporary authors mean by law only legal rules (law) for the purposes of legal positivism conception about right, which is true, but incomplete. According to classical natural law (jus naturalism) it is right or fair measure reported fair to be established between two or more persons who are related, is that "jus suum cuique tribuere" man himself is "being right measure." The legal positivism (which increases in strength in the seventeenth and eighteenth centuries rationalism jus, which it removed and then denies the very existence during the 19th and 20th centuries) abandons the concept of jus naturalistic conception as giving a whole new meaning, the power and not just report also new conception of law in dividing two different meanings: the right of the legislature the power to issue legal norms, called the objective, understood as the prerogative right of the individual to do or not to claim something or someone something only to the extent that this prerogative it enjoys the right objective.
The doctrine of the rule of law is the result of historical development of social coexistence of two phenomena--the state and the right, inextricably and organically connected to each other, both having to fulfill essential functions in the organization and governance of the company. The rule of law reflects the coexistence of two distinct social entities, but are inextricably linked to state and law; they expressed their mutual relations as relations of power and normativity -first with the tendency toward dominance and submission, the other with the brake and ordering. Emphasizing the interdependence Leon Duguit said: "Law without force is powerless, but power without law is a barbarity." (Duguit apud Ceterchi, l996: 117)
The rule of law must govern through its appropriate legislation through ownership situation, combating tax evasion and undeclared work and depoliticization of the control by eliminating the controls political order.
Romania's European integration is a complex process that requires not only progress in democratization of society and applying the rule of law, but also streamlined governmental structures.
It is necessary to develop sound economic criteria the rule of law and respect for fundamental values of representative democracy, the rule of law and guarantees human rights and align national legislation with European law.
Ceterchi, Ioan, and Craiovan, Ion (1996), Introducere in Teoria generala a dreptului [Introduction to the General Theory of Law], Bucharest: All.
Chevallier, Jean Jacques (1992), L 'Etat de droit [The rule of law], Paris: Montchrestien. Ciongaru, Emilian (2011), Teoria generala a dreptului. Notiuni generale [The General Theory of Law. General notions], Craiova: Scrisul Romanesc.
Miculescu, Petru (1998), Statul de drept [The rule of law], Bucharest: Lumina Lex.
Popa, Nicolae (1999), Teoria generala a dreptului [The General Theory of Law], Bucharest: Actami.
Faculty of Law and Economics Targu Jiu,
Titu Maiorescu University, Bucharest
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|Publication:||Contemporary Readings in Law and Social Justice|
|Date:||Jul 1, 2017|
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