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The enshrining in modern democratic constitutions and international legal instruments of some human rights and freedoms is the result of a long historical process that includes philosophical, legal and political conceptions, theories, doctrines, but also different forms of recognition, normative consecration of them. The normative affirmation of human rights is the legal recognition of the human being in his existential individuality, man becomes a person in legal relations, the holder of rights and freedoms that he can oppose to the state and demand their guarantee and respect. The scientific research of fundamental rights and freedoms must be carried out on three levels: legal, philosophical, sociological. The constitutional evolution of human rights was characterized by the existence of two large categories of regulations: internal, of each state, and international. In constitutional law, the question of their correlation was raised and two principles were affirmed: 1. The application of conventions related to human rights must be done taking into account the need to harmonize international cooperation with the principle of state sovereignty and 2. International documents are the main means for their application, the assumption in good faith by the states parties of their obligations according to their normative content. Given the undeniable social and legal importance of enshrining human rights, one can speak of a new "religion" of fundamental rights enshrined by law. Is this conception justified? What are the theological, philosophical and legal meanings of human rights? Are freedoms and human rights really guaranteed by the states, including in Romania? To what extent are the rights of persons in special situations constitutionally guaranteed: foreigners, stateless persons, migrants, refugees? These are some of the topics we want to address in this study, with reference to the relevant doctrine and jurisprudence. [ABSTRACT FROM AUTHOR]

The most striking expression of the social fact is the social norm. Man's social existence cannot be conceived without norms, mainly moral, religious and legal, that regulate and even determine the behavior of the human person in the social environment. The existence of any individual as a social being presupposes a series of obligations exercised throughout his life cycle, materialized in a series of norms, some of which complement each other, others appear contradictory to others, being specific to different interest groups. This system of rules is a condition for the existence of society's life, a mechanism that requires good management of human relations and removes the imminent danger of chaos. Social norms are imposed, promoted and perpetuated by several methods that we will analyze in our study Regardless of the field they regulate, social norms contain rules addressed to individuals, describing and detailing the ways in which values must be translated into legitimate behaviors and accepted by society. As social relations are extremely varied, a diversity of social norms that regulate these relations is also outlined. Thus, the system of social norms consists of the following groups: ethical norms, ordinary norms (customs), corporate norms, religious norms and legal norms. There are also technical norms that are not part of social determinism because they do not regulate social relations. Regarding the complex relationship between the normative legal system and, on the other hand, society, it can be seen that currently the legal system tends to have its own functional autonomy, apart from the objective or subjective determinations that society transmits. The autonomy of the judiciary tries to transform itself from a secondary, phenomenological and ideational structure, into one with its own reality, with the power to impose its order on the social and natural order. In this study we also analyze aspects of the work of normative codification. [ABSTRACT FROM AUTHOR]

The Romanian Constitution uses a simple and efficient procedure for regulating the restriction of the exercise of certain rights and freedoms (common circumstances), through the provisions of a single article. The provisions of Art 53 allow the restriction of the exercise of some fundamental rights and freedoms, but only conditionally. The issue of interpretation and application of the provisions of Art 53 presents a special complexity because the restrictions may concern the exercise of any fundamental right or freedom enshrined and guaranteed by the Constitution, except for those considered to be absolute. The complexity is also due to the diversity of concrete situations that justify the restriction of the exercise of certain rights. The rules established by the provisions of art. 53 have the value of a constitutional principle, because they are applicable to all the fundamental rights and freedoms of the citizens. The Constitutional Court and the courts are the main state institutions that have the competence to guarantee the observance of the exercise of fundamental rights and freedoms of citizens, to verify the conformity of normative acts with the Fundamental Law and to the constitutionality of limits, conditions and restrictions of exercise of rights, power of Parliament and the Government when adopting restrictive measures. In exceptional situations, such as the state of emergency or the state of alert established for a long time on the Romanian territory, the rulers have restricted the exercise of some essential fundamental rights, restrictions that seriously affect the private and social life of the people. In this study we analyse, based on the jurisprudence of the Romanian Constitutional Court, some international courts and other courts, the legitimacy and constitutionality of these restrictive measures. [ABSTRACT FROM AUTHOR]

Few legal, philosophical, or theological categories have given rise to such a great interest as the issue of human freedom. It is natural to be so because freedom is not only a concept, but rather an ontological dimension of man viewed as a person but also in the social environment. Freedom of expression is an important form of human freedom, which is transposed into a legal form and becomes a fundamental constitutional right. In this study we analyze the main doctrinal and jurisprudence aspects of freedom of expression. As a novelty aspect to other similar studies, the correlations between the legal form and some theological and philosophical interpretations of freedom of expression are analyzed. In the context of the development of information technology in the field of communication, important aspects of constitutional jurisprudence regarding the protection of freedom of expression are analyzed, especially in the situation where the exercise of this fundamental right could be conditioned or restricted. [ABSTRACT FROM AUTHOR]

The doctrine of the rule of law originates from German theory and case-law, but is now a requirement and a reality of constitutional democracy in contemporary society. At present, the rule of law is no longer a simple doctrine but a fundamental principle of democracy consecrated by the Constitution and international political and legal documents. In essence, the concept of the rule of law is based on the supremacy of the law in general and of the Constitution in general. Essential for the contemporary realities of the rule of law are the following fundamental elements: the moderation of the exercise of state power in relation to the law, the consecration, the guarantee and the observance of the constitutional rights of man especially by the state power and, last but not least, the independence and impartiality of justice. In this study we analyse the most important elements and features of the rule of law with reference to the contemporary realities in Romania. An important aspect of the analysis refers to the separation, balance and cooperation of the state powers, in relation to the constitutional provisions. The most significant aspects of the case-law of the Constitutional Court on the rule of law are being analysed. [ABSTRACT FROM AUTHOR]

The main consequence of constitutional supremacy is the compliance of the entire law with constitutional rules. Ensuring full respect of this principle, essential to the rule of law, is primarily an attribute of the Constitutional Court, but also an obligation of the legislative power to accept constitutional rules, via legal acts adopted in terms of contents and form. The new penal codes'entry into force has led to a significant case law of the Constitutional Court on the control of constitutionality of some regulations in the Criminal Code and Criminal Procedure Code. We aim to examine the following key issues in this study: a) the manner in which the constitutional principles and values embodied in some criminal and criminal procedural norms of the new codes were realized; b) the effects of Constitutional Court decisions in the constitutionalisation process of the criminal law; c) enforcement of decisions made by the Constitutional Court to trials, particularly those through which the new Criminal Code regulations were found unconstitutional. [ABSTRACT FROM AUTHOR]

The relation between constitutional rules and European Union Law is construed differently, as there are several doctrinaire concepts and different case-law solutions. There is a school of thought claiming the Constitution's supremacy, including over European Union law, albeit it accepts the latter's enforcement priority in its compulsory rules over all the other rules of national law and another one claiming the unconditional enforceability priority of all provisions in European Union law over all rules of national law, including over constitutional rules. There are European constitutional jurisdictions to have set out they have the legal power to conduct the review of constitutionality of European Union law, incorporated into national legal order, by virtue of the principle of the Basic Law's supremacy. This study addresses the interferences between the principle of primacy of European Union law and the principle of Constitution's supremacy with regard to doctrine and case-law pertinent to the matter. [ABSTRACT FROM AUTHOR]

The proportionality is a general principle of law, signifying the ideas of balance, justice, responsibility and the needed adequate suiting of the measures adopted by the State to the situation in fact and to the purpose aimed by the law. The principle is expressly formulated in the European Union documents but also in the constitutions of other states. The normative or jurisprudential regulation of the principle explains the numerous preoccupations at scientific level to identify its dimensions. In this study, the principle of proportionality is analyzed from the perspective of the philosophy of the law, in order to try to identify its value dimensions that are to be found in the normative consecrations or in jurisprudence. The normative of jurisprudential dimension of proportionality, as a law principle has its content in the concepts and philosophical categories that make up the contents of the principle of proportionality, in the law philosophy's main periods and currents. We consider that such a scientific attempt is useful, having into consideration the importance of this principle for the contemporary law. The principle of proportionality is an important guaranty in the observance of the human rights, mainly in situations in which their exercising is being restricted by the actions ordered by state's authorities, being at the same time an important criterion to delimit the discretionary power from the power excess in the activity of state's authority. In our opinion, only in the extent of our knowledge and understanding of the philosophical contents of this principle it is possible this one's correct applying in jurisprudence. This study is aiming to be a pleading for the possibility and usefulness of law's philosophy in this epoch dominated by juridical pragmatism and normativism. [ABSTRACT FROM AUTHOR]

A problem of essence of the state is the one to delimit the discretionary power, respectively the power abuse in the activity of the state's institutions. The legal behavior of the state's institutions consists in their right to appreciate them and the power excess generates the violation of a subjective right or of the right that is of legitimate interest to the citizen. The application and nonobservance of the principle of lawfulness in the activities of the state is a complex problem because the exercise of the state's functions assumes the discretionary powers with which the state's authorities are invested, or otherwise said the 'right of appreciation" of the authorities regarding the moment of adopting, the contents of the measures proposed. The discretionary power cannot be opposed to the principle of lawfulness, as a dimension of the de jure state. In this study we propose to analyze the concept of discretionary power, respectively the power excess, having as a guidance the legislation, jurisprudence and doctrine in the matter. At the same time, we would like to identify the most important criteria that will allow the user, regardless that he is or not an administrator, a public clerk or a judge, to delimit the legal behavior of the state's institutions from the power excess. Within this context, we appreciate that the principle of proportionality represents such a criteria. The proportionality is a legal principle of the law, but at the same time it is a principle of the constitutional law and of other law branches. It expresses clearly the idea of balance, reasonability but also of adjusting the measures ordered by the state's authorities to the situation in fact, respectively to the purpose for which they have been conceived. In our study we choose theoretical and jurisprudence arguments according to which the principle of proportionality can procedurally be determined and used to delimit the discretionary power and power abuse. [ABSTRACT FROM AUTHOR]