Facultatea de Drept si Stiinte Administrative

The jurists naturally privilege the continuity, stability, coherence. If the political tends to periodically break the coherence of the social structures, the jurists conceive themselves as "doctors" thereof, and "their technique is precisely the extirpation of the void, the anticipation of the crises, the assurance of the continuity, or even the mending, after the stroke, of the ruptures of the institutional weave". The legal privileging of the continuity of the social evolution is translated by the structuring of the system on the basis of some principles aimed at attenuating the tendencies of radicalization of the social claims in the name of the prevalence of a certain conception about the good society over its alternatives. It is fundamental for the jurists that the law ensures the priority of the protection of freedom through the mechanisms of the rule of law over the general interest resulted from the democratic exercise of power. The law based on this vision can not be the result of a general transcendent interest over the interests of the members of the society, but must be the result of the accessibility and availability thereof. Key words: democracy; rule of law; restriction of human rights; national security; public morals; availability of the general interest.

The ordinary courts have the general competence to protect the rights and freedoms of individuals, whether provided or not in the international treaties or in the Constitution of Romania. The Constitutional Court’s claim to be the only one to exercise constitutional justice powers is based on a faulty interpretation of its own competence, which is constitutionally determined as being to ensure the supremacy of the Constitution, and on reducing the constitutional contentious to the contentious of rules. A correct interpretation of the constitutional provisions and the fructification of the Romanian tradition in the matter of constitutional justice demonstrate that the ordinary courts are competent to apply the Constitution in order to protect the rights and freedoms of individuals, therefore to exercise constitutional justice powers, because this is not reduced to the control of the constitutionality of the laws.

Pornind de la câteva consideraţii de principiu asupra raporturilor dintre puterea constituantă, autoritatea constituantă originară şi cea derivată, voi face o analiză critică a limitelor competenţei de revizuire a Constituţiei, aşa cum sunt reglementate în Constituţia României din 1991. Limitele materiale ale revizuirii ridică unele probleme de necesitate, de claritate şi, în cazul formei republicane de guvernământ, chiar de validitate a introducerii în sistemul juridic. Limitele teleologice, care interzic revizuirile care au ca efect suprimarea drepturilor şi libertăţilor fundamentale sau a garanţiilor acestora, ridică mai multe probleme de definire, mai ales când efectul vizat de interdicţia constituţională este obţinut indirect. În fine, limitarea în situaţii excepţionale trădează lacunele Constituţiei României în definirea acestora.

By starting from several principle considerations regarding the relations between the constituent power, the original and the derived constituent authority, I shall make a critical analysis of the limits of the power to revise the Constitution, such as they regulated in 1991 Constitution of Romania. The material limits of the revision raise certain problems in terms of necessity, clarity and, in the case of Republican form of government, of the validity of introduction into the legal system. The teleological limits which prohibit revisions that result in the suppression of fundamental rights and freedoms or their guarantees raise several definition problems, especially when the effect targeted by the constitutional interdiction is indirectly obtained. Finally, the limitation in exceptional situations betrays the lacunae of the Constitution of Romania in their definition, and in the case of the prohibition of revision in times of war, the contradictory historical experiences.

Sfera dreptului nu poate fi nelimitată într-o democraţie liberală. O primă categorie a limitelor sale rezultă din necesitatea de a tempera mutabilitatea sistemului juridic. În primul rând, dreptul nu trebuie să fie perisabil. Trecerea timpului nu ar trebui să afecteze prin ea însăşi sistemul juridic. Dreptul trebuie astfel să limiteze dorinţa de schimbare de dragul schimbării ori de transformare a regle-mentării într-un spectacol. Limitarea acestor tendinţe nu este juridic eficientă în orice condiţii, ceea ce înseamnă că gândirea metodelor de reglementare trebuie să ţină cont de principiile formale, dar şi de contextul aplicării lor. În al doilea rând, dreptul nu poate fi receptiv la toate schimbările mediului. El trebuie să se modifice doar în anumite circumstanţe şi proporţional cu amploarea schim-bărilor sociale. Nu orice conflict social, orice schimbare a orientării ideologice, modificare politică, economică ori structurală trebuie să determine schimbări ale ordinii juridice. În al treilea rând, mutabilitatea sistemului juridic poate fi determinată de disfuncţiile sistemice. Dar nu trebuie ca orice conflict structural în interiorul ordinii juridice să antreneze modificări sistemice. În principiu, doar anumite disfuncţii pot fi categorisite ca sistemice, iar reacţia faţă de ele trebuie să se limiteze la realizarea unor corecţii structurale.

In a liberal democracy, the sphere of law cannot be unlimited. The first category of its limits results from the necessity to temper the mutability of the legal system. Firstly, the law must not be perishable. The passage of time should not, in itself, affect the legal system. Thus, the law must limit the desire for change only for the sake of change and the desire to turn regulations into a performance. The limitation of such tendencies is not legally effective under any circumstances, meaning that the choice of regulatory methods must take into account formal principles and the context of their application as well. Secondly, law cannot be receptive to all changes. It must shift only under certain circumstances, commensurate with the magnitude of social changes. Any social conflict, change of ideological orientation, or political, economic or structural modification should not determine modifications with respect to the legal order. Thirdly, the mutability of the legal system may be determined by systemic dysfunctions. However, any structural conflict within the legal order should not bring about systemic changes. Basically, only certain dysfunctions can be classified as systemic, and the reaction towards them should be limited to drawing up structural modifications. The fundamental norm of any judicial system is the integration of conflicts. This essential requirement results from the fact that order is a formal condition of the social existence. Consequently, law will regulate all the social conflicts. If no express norm exists to regulate a certain social conflict, then a general principle of the law, derived thus not from the ruler's will, but rather directly from the internal logic of the system, will be held accountable for regulating it.

Cartea, publicată în 2007 la Editura C.H. Beck, tratează partea generală a dreptului constituțional: actorii vieții politice (statul, cetățenii, partidele politice, grupurile de presiune, mass-media, grupurile primare de identificare); competiția pentru putere (organizarea alegerilor, modalitățile de scrutin, contenciosul electoral, statutul aleșilor); exercițiul puterii (funcția constituantă, teoria și practica separației puterilor în stat, critica teoriei separației puterilor în stat); condiția individului (noțiunea de libertate, libertățile publice și drepturile omului, fundamentele filosofice și evoluția drepturilor omului, protecția drepturilor omului, principiile fondatoare ale reglementării drepturilor omului, regimurile de exercitare a drepturilor omului); justiția constituțională (noțiune, legitimitate, modele, organizare, contenciosul constituțional).

Cartea, publicată la Editura C.H. Beck în 2008, tratează: noțiunile de drept, de stat și de stat de drept; dreptul obiectiv (sursele dreptului și tehnica juridică); dreptul în sens subiectiv (titularii, crearea, modificare și stingerea drepturilor); realizarea dreptului (realizarea benevolă, delimitarea domeniului de aplicare, interpretarea dreptului, contenciosul și justiția necontencioasă, răspunderea, sancțiunea și constrângerea).

The central problem created by the stabilisation of any legal system is the way in which law will recognise the moment when to change and adapt, before the necessity of social transformations becomes an open conflict, i.e. a conflict that refuses integration into the given system: a revolution. It is not a matter of preventing revolutions, but rather one of anticipating and, as far as possible, framing them. In those systems which privilege the projective function of law in the detriment of its protective function, such are the Romano-Germanic systems, the law must entail mechanisms which attenuate the tendency to consider that the legal projection of society is limitless. These attenuators may be placed on several levels: on the level regarding the choice of scopes, on the level regarding the choice of means and on the level regarding the relations between law and other forms of normativity. Their presence should lend the legal system enough flexibility so as to be able to endure mutations and to change through punctual touches, thus precluding brutal social derangements. The subject of this study is represented by the attenuators on the level regarding the choice of social scopes.

The 1866 Constitution of Romania represents a turning point in the history of the Romanian state and Romanian law. It was not a constitutional transplant of the Belgian system of 1831 and it was not too liberal for the nineteenth century Romanian realities, as usually stated. The malfunction of the Romanian state was due primarily to the adaptation of the revolutionary model of the modern liberal state to the realities of Romania, adaptations which destroyed its inner logic.

The rereading of the origins of the theory of the separation of powers leads us to several ideas that have the potential to reconfigure it for the future. Locke, Montesquieu and the French revolutionaries distinguish functions from bodies, even though their delineation criterion is intuited rather than constructed, announcing the need for the systemic and functional nature of the power of devolution. The jurisdictional power is situated somewhat outside the separation of state powers. Justice resembles an intermediary body between state and community rather than a power of the state. The (horizontal) separation of the central powers of the state is merely a power limitation technique situated in a larger system. The vertical structuring of power, the pluralist structuring of intermediary bodies and the autonomy of civil society, understood firstly and foremost as autonomy of the bourgeois economy from political power, are concerned. Since the origins of the theory, the structuring of the system of parties, the structuring of the right of suffrage and the autonomous structuring of the economy have been understood as necessary fundaments of the functionalization of the separation of powers. The re-evaluation of the origins of the theory of the separation of powers indicates that it has always been about the separation of state, justice and civil society rather than the separation of powers.

Is state intervention necessary to the exercise of rights or liberties? The answer to this question creates several possibilities of substantiating the general regime of human rights exercise: libertarian, liberal and statist. Classical liberal regimes (repressive, preventive and of prior declaration) are questioned by the inflation of criminal legislation, by the elasticity of the laws, by the masked intervention of administration etc. By swinging between a utopian liberalism and a masked liberalism, human rights remain mere deficient expectations in contemporary societies.

The aim of this study is to analyse the way in which constitutional justice has fulfilled functions of neutral power in the constitutional history of Romania and, by revealing the manner in which the Law of 2003 on the revision of the Constitution of Romania gave the Constitutional Court the competence to address "legal constitutional disputes between public authorities" and by researching into the jurisprudence of this court, to draw conclusions regarding the necessity, efficiency and risks of this system.

Current legal doctrine often confuses two planes, which should remain separate: the language of law and the language about law. Due to this confusion, the doctrine tends to transform the problem of safeguarding freedom into a problem of imposing a structure of the legal or state system-a structure that is based on a type of realist ontology which is unfit for modern law. The safeguard of religious freedom is thus transformed into a structure-wise problem, namely, into a problem related to the separation of the state and churches, which is in turn converted into the imposition of a form of civil religion: secularism. The structuring of the public space exclusively on the basis of this principle, which raises claims to universality, reproduces all the dysfunctions of those systems, which are based on the confusion between state and religion. In order to avoid the infringement of individual freedom, secularism should be itself a form of religion, to which the rules relating to tolerance and neutrality should be applied.

The events ocurred at the end of 1989 and the beginning of the ’90s were interpreted for a long time by a great number of Romanian politicians and local intelligentsia as not being a revolution. The dispute seemed to be fed by the divergent use of the concept of “revolution” itself. The events were, thus, qualified as “coup d’état”, “insurrection” etc. Nowadays, after almost a quarter of a century, the stake seems to fade away. The revolution appears to be an acquired asset. However, the consequences of the fundamental issue which initiated it continue to be important, because this represents an ideological, political and legal fracture of the totalitarian regime or of a certain continuity between the two regimes. The essential question is if Romania chose the contrary of the totalitarian regime, that is a liberal state or an alternative viable form, or it continued the totalitarianism in a different shape, “with human face”, imitating, better or worse, the mechanisms of democracy. In the following pages I will try to demonstrate that the Romanian society is characterized of a certain modality of ideological monism, which only imitates pluralism, that is continues to be a mass society, without being capable to generate and to maintain a civil society autonomous in relation to the state, that the liberal principle of priority of just over well-being is not typical to the current Romanian state, as the priority of liberty in relation to the general interest or perfectionist values does not represent a reality in post-Communist Romania. In other words, the current Romanian state, despite the make-up, is not essentially different to the totalitarian one, the difference being only of degree, not of nature.

The exercise of rights and liberties may be limited for the reasons enumerated in art. 53(1)C. But their application may not be done in a limitless manner. There has to be a procedural framework which shall limit the modality in which the state may claim these reasons. This procedural framework has to be able to achieve the fundamental purpose of the constitutional provision: protection of individual liberty against possible abuse of the state. The purpose of art. 53C coincides with the general purpose typical to any liberal society: the priority of liberty over authority. Thus, it would be natural for the principle of liberalism to create the procedural framework of limits regarding claiming the reasons of general interest or of perfectionist values in order to justify the limitation of exercise of rights and liberties. This framework may be called in brief „the necessity of limitation in a liberal society”. Before judging the necessity of limitation in a democratic society, we have to judge its necessity in a liberal society. This is the structural logic of art. 53C, because the constitutional provision does not have as goal the authorization of limitation of exercise of rights and liberties, but the maximization of protection of the person through strict legal framework of the state’s action, which means that the enumeration of the reasons which may represent the basis of limitations has to be interpreted as a restrictive framework, as producing the maximum constraint for the state authorities. Thus, art. 53(1)C has to be interpreted in the sense of creating a procedural framework for the limitation of the state, even if it appears to authorize its action. I will endeavour to demonstrate the modality in which the liberal understanding of the reasons for the limitation may create this framework. Synthetically, this framework supposes that the managing ideas of liberalism – priority of liberty, priority of just over good, priority of self determination of the individual and state neutrality – are transposed in a system of procedural limits of the possibility to claim which justifies the limitation of liberty.

The introduction into the structure of the present states of certain autonomous authorities and their exponential multiplication over the last decades requires a careful analysis of the principles underpinning their justification. Modern States are based on political freedom, that is, the liberation of man from the objective laws, created by divinity or the implacable historical evolution of society. Modern man is his own master. The expression of this freedom by vote is the basis of all the institutional mechanisms of modern constitutionalism. Instead, autonomous authorities are set up to free the regulation of certain social mechanisms from political influence. They are not based on modern political freedom. Formed by experts who know the "objective" laws of social development and apply them "scientifically," these authorities are "objectives". They are removed from the influence of ideological subjectivism, fed by the dependence of politicians on the elections, so by a passionate and sometimes irrational people. Thus is created a dichotomy: the people or the expert? The following study attempts to answer this fundamental question and the principle on which the choice of contemporary legal systems is based for the multiplication of autonomous authorities: the neutrality of the expert.