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Artificial intelligence, globalisation and the ideology of transhumanism are contemporary realities that propose a new conception of man, his social status, likely to affect the fundamental rights and freedoms enshrined in constitutions and laws. In this study we will present the content, definitions and meanings of globalisation, AI and the ideology of transhumanism, whereby the social status of man, his existence are subordinated to technology. In this context, we will insist on the risks and vulnerabilities that the new contemporary realities present for humans. We will refer to the legal means of guaranteeing human rights and to normative regulations regarding the use of AI in the context of world globalisation and the proliferation of the ideology of transhumanism. [ABSTRACT FROM AUTHOR]

This study represents an attempt to highlight, from a legal and philosophical perspective, the most significant contradictions that can affect justice during a period of social crisis, namely the era of postmodernism. The object of our analysis is: normativism and legal formalism, the ideology of globalisation, the contradiction between the consecration and guarantee of citizen rights and the restriction of their exercise through excess of power, the contradictions between law and justice; justice and society and the act of fulfilling justice and what we call the „outward fall of justice". In this context, we refer to some aspects that characterise the person and personality of the judge. This essay is a plea for the principles of law as a possible solution to solve and overcome the crisis of law and justice in postmodernism. Starting from the difference between „given" and „constructed", we propose the distinction between „metaphysical principles" external to law, which through their content have philosophical meanings, and „constructed principles" elaborated and normatively consecrated. We emphasise the obligation of the legislator, but also of the judge, to refer to the principles of law, including those external to law, in the legislative activity, interpretation and application of the law. [ABSTRACT FROM AUTHOR]

Any scientific intercession that has as objective, the understanding of the significances of the „principle of law” needs to have an interdisciplinary character, the basis for the approach being the philosophy of the law. In this study we fulfill such an analysis with the purpose to underline the multiple theoretical significances due to this concept, but also the relationship between the juridical principles and norms, respectively the normative value of the principle of the law. Thus, are being materialized extensive references to the philosophical and juridical doctrine in the matter. This study is a pleading to refer to the principles, in the work for the law’s creation and applying. Starting with the difference between „given″ and „constructed” we propose the distinction between the „metaphysical principles” outside the law, which by their contents have philosophical significances, and the „constructed principles” elaborated inside the law. We emphasize the obligation of the law maker, but also of the expert to refer to the principles in the work of legislation, interpretation and applying of the law. Arguments are brought for the updating, in certain limits, the justice – naturalistic concepts in the law. [ABSTRACT FROM AUTHOR]

The relationship between the national law and the EU law is interpreted differently, there are several doctrinal concepts and different jurisprudence solutions. One school of thought asserts the supremacy of the Constitution, including over EU law, even if it accepts the priority of application of the latter, in its mandatory rules, over all other rules of domestic law, and another the priority of unconditional application of all the provisions of the EU law compared to all the rules of the internal law, including the constitutional rules. There are European constitutional jurisdictions that have established that they have the competence to control the constitutionality of EU law, integrated into the internal legal order, by virtue of the principle of the supremacy of the Fundamental Law The Romanian Constitution enshrines two principles of a different nature and with specific implications whose effects are convergent but also divergent: the supremacy of the Constitution and the priority of EU law. In this study we analyze the interferences between the principle of priority of EU law and the principle of supremacy of the Constitution with reference to the relevant doctrine and jurisprudence in 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]

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 supremacy of Constitution is a reality also due to the role of the Constitutional Court, as defined in article 142 paragraph (1) of the Constitution. The Constitutional Court's powers contribute essentially to the achievement of the lawful state and, therefore, a historical analysis of the evolution of this important constitutional institution is likely to highlight the legitimacy of the constitutionality control of the laws in Romania, but also its perspectives. In our analysis, we are debating for the concept of constitutional justice, regarded from a historical point of view, which includes the main attribution of a constitutional court, namely that of controlling the constitutionality of the laws. From this perspective, we point out the main evolution moments of the constitutionality control of the laws in Romania, analyzing briefly the particularities of the constitutional regulations during the evolution of constitutional justice in our country. At the same time, we emphasize the contemporary features of the control of constitutionality of the laws in Romania, and we argue that guaranteeing the supremacy of the Constitution, through constitutionality control, must be seen in the broad sense and in terms of the attributions of the courts in this field. We believe that the role of the Constitutional Court must be amplified by new powers, including through future revisions of the Fundamental Law, as this creates new guarantees regarding the reality of the principle of separation and balance of powers in the state, and obviously the guaranteeing of the supremacy of the Basic Law. [ABSTRACT FROM AUTHOR]

The procedure for amending the Constitution is extremely difficult, almost impossible in the current social and political context. The essence of a constitution is its stability over time because only in this way can ensure the stability of the entire normative system of a state, certainty and predictability of the conduct of the legal subjects but also to ensure the legal, political and economic stability of the social system as a whole. The obligation of the authorities, respectively of the parliament and of the executive to have a loyal constitutional conduct was for the first time stipulated in the jurisprudence of the French Constitutional Council, which is the constitutional court of France. This obligation is found in the attributions to interpret and apply the constitutional norms that the state authorities have. It is not limited to the simple requirement of legality of the acts and provisions of the rulers, i.e. to the formal observance of the law. In our opinion, the concern of the political class and state authorities in the current period, in relation to the current content of the Fundamental Law, should be oriented towards its correct interpretation and application and respect for the democratic finality of constitutional institutions. In order to consolidate the rule of law in Romania, even in the current normative form of the Constitution, it is necessary that political parties, especially those in power, all state authorities act or exercise their powers within the limits of loyal constitutional behavior and the democratic meanings of the Constitution, the Orthodox Christian traditions and values of the Romanian people, the rights and dignity of the person. In this study we analyze aspects of doctrine and jurisprudence of the concept of loyal constitutional behavior. [ABSTRACT FROM AUTHOR]

To the Romanian system of law, jurisprudence does not have the quality of a formal source of law. Nevertheless, a legal reality, viewed from a historical perspective, has demonstrated the essential role of judicial practice in interpreting and enforcing the law, in constructing argumentative practices, in clarifying the will of the legislator, and in discovering the less obvious meanings of legal norms and, last but not least, in unifying thought and legal practice. Therefore jurisprudence, along with doctrine, is an important component of the Romanian system of law. Based on these considerations, we intend to highlight some aspects of constitutional jurisprudence in this paper. We underline its contribution to the constitutional review of laws in Romania. Under the Constitution of 1866, which did not regulate institutionally such a control, the courts have assumed this competence by interpreting the law and by way of jurisprudence. Important aspects of the Constitutional Court jurisprudence and of the courts in the development of constitutional review in our country are presented and analysed. We support the idea that jurisprudence currently plays an important part in the interpretation of constitutional norms, including with regard to deepening the constitutional review forms. [ABSTRACT FROM AUTHOR]

The doctrine of the rule of law originates from German theory and jurisprudence, 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 jurisprudence of the Constitutional Court on the rule of law are being analysed. [ABSTRACT FROM AUTHOR]

Regarding the term of supremacy of the constitution, many authors consider that it is notorious and therefore does not require a special scientific analysis. There are taken under consideration the characteristics of the fundamental law, such as its legal force and normative content, through which it expresses its superordinate position in the normative system of the state. In our analysis, we demonstrate that the supremacy of the constitution is a quality of the fundamental law that has complex, social, political, historical and normative determinations and relates to the role of the constitution in the state social system. The supremacy of constitution can not be reduced only to the formal significance resulting from its legal force. In this context we consider the concept of supremacy as a constitutional obligation with specific legal consequences. There are analyzed the consequences and guarantees of the supremacy of the constitution, the role of the Constitutional Court in fulfilling the main function of guarantor of the supremacy of the Constitution, as well as the competence of the courts, to guarantee through specific procedures this quality of the fundamental law. In this aspect, jurisprudential issues are presented and analyzed. The relationship between the supremacy of the constitution and the principle of the priority of the European Union law is another aspect of the research carried out in this study. [ABSTRACT FROM AUTHOR]

The equality in human rights and obligations, the equality of citizens before the law are fundamental categories of the theories on social democracy but also conditions of the lawful state, without which constitutional democracy cannot be conceived. In Romanian Constitution, this principle is consecrated in the form of equality of the citizens before the law and public authorities. There are also particular aspects of this principle consecrated in the Fundamental Law. The equality before the law and public authorities cannot imply the idea of standardizing, uniformity, enlisting of all citizens under the same legal regime, regardless of their natural or socio-professional situation. The constitutional principle of equality requires that equal treatment be applied to equal situations. This social and legal reality implies numerous interferences between the principle of equality and other constitutional principles: the principle of identity and diversity, the principle of pluralism, principle of unity and, in particular, the principle of proportionality. In this study, by using theoretical and jurisprudential arguments, we intend to demonstrate that, in relation to contemporary social reality, equality, as a constitutional principle, is a particular aspect of the principle of proportionality. The latter one expresses in essence the ideas of: fairness, justice, reasonableness and fair appropriateness of state decisions to the facts and legitimate aims proposed. [ABSTRACT FROM AUTHOR]

In a democratic society, the judicial legitimacy of the state and its power, of its institutions, but also the social and political grounds are generated and determined by the Constitution, defined as expressively as possible as being: "The fundamental political and judicial settlement of a people" (I. Deleanu). The supremacy of the Constitution has as main effect the conformity of the entire system of law with the constitutional norms. Guaranteeing the compliance with this principle, essential for the state of law, is first of all an attribution of the Constitutional Court, but also an obligation of the legislative power to receive, through the adopted normative acts, in content and in form, the constitutional norms. Altering the fundamental law of a state represents a political and judicial act extremely complex with major meanings and implications for the socio-political and national systems, but also for each individual. This is why such measure should be very well justified, to answer certain socio-political and legal needs well shaped and mainly to match the principles and rules specific to a democratic constitutional and state system, by insuring its stability and functionality. These are a few aspects of the Romanian contemporary constitutionalism that this study shall critically analyse in order to differentiate between the constitutional ideal and reality. [ABSTRACT FROM AUTHOR]

An essential dimension of the lawful state is represented by the consecration and guaranteeing of the fundamental rights and liberties, the ensuring of the optimum conditions for their exercising. The state authorities have the negative obligation to restrain from any arbitrary or excessive requirement that may restrict or condition the exercise of the constitutional right. In order to be legitimate and constitutional, any restriction of the exercise of the fundamental rights and liberties through the measures prescribed by the state's authorities, needs to have the character of exemption, not to affect the substance of the law and to fulfill all conditions stipulated by article 53 of Constitution. In relation to these premises we analyze in this study the constitutional institution of restraining some rights' exercising and the relevant aspects of jurisprudence. The observance of the principle of proportionality is one of the constitutional requirements in order that such a restrictive measure be legitimate. The main particularities of the principle of proportionality applied in the matter of restraining some rights' exercising are analyzed with reference to the jurisprudence of the Constitutional Court and the European Court of Human's Rights. [ABSTRACT FROM AUTHOR]

The coding is not only the expression of the political will of the law maker, it firstly is a complex juridical technique for the choosing and systematization of the normative content necessary and adequate to certain social, political, economic, institutional realities. Since Constitution is a law, yet it nevertheless distinguishes itself from the law, the problem is to establish which juridical norms it contains. The solving of this problem needs to consider the specific of the fundamental law and also of the requirements of the coding theory. The determining with all scientific stringency of the normative content of the Constitution is indispensible both for the removal of any inaccuracy in delimiting the differences from the law, for the stability and predictability of the fundamental law and last, but not the least, for the reality and effectiveness of its supremacy. In our study we realize an analysis based on compared criterions of the techniques and exigencies for the choosing and systematization of the constitutional norms with reference to their specific, to the practice of other states and within a historical context. The analysis is aiming to the actual proposals for the revising of the Constitution. [ABSTRACT FROM AUTHOR]

The modification of the fundamental law of a state represents a very special political and juridical act with major significances and implications in the political social system as in the state's one, but also at each individual level. That's why such an approach needs to be well justified, to answer to some juridical and political social needs well defined, but mainly to correspond to the principles and rules specific to a constitutional and state's democratic system providing to the state the stability and functionality it needs. In this study we analyze the necessity of such a constitutional reform in Romania, and also some provisions from the report of the Presidential Commission for the analysis of the political and constitutional regime in our country. We formulate our opinions in relation to the justifying some constitutional regulations. In this context, we consider that there are arguments for the maintaining of the bicameral parliamentary system and an eventual revising of the fundamental law needs to consider the measures needed to guarantee the political and constitutional institutions specific to the lawful state. [ABSTRACT FROM AUTHOR]

The coding is not only the expression of the political will of the law maker, it firstly is a complex juridical technique for the choosing and systematization of the normative content necessary and adequate to certain social, political, economical, institutional realities. Since Constitution is a law, yet it nevertheless distinguishes itself from the law, the problem is to establish which juridical norms it contains. The solving of this problem needs to consider the specific of the fundamental law and also of the requirements of the coding theory. The determining with all scientific stringency of the normative content of the Constitution is indispensable both for the removal of any inaccuracy in delimiting the differences from the law, for the stability and predictability of the fundamental law and last, but not the least, for the reality and effectiveness of its supremacy. In our study we realize an analysis based on compared criterions of the techniques and exigencies for the choosing and systematization of the constitutional norms with reference to their specific, to the practice of other states and within a historical context. The analysis is aiming to the actual proposals for the revising of the Constitution. [ABSTRACT FROM AUTHOR]

This essay represents an attempt to highlight, from a philosophical perspective, the most significant contradictions that can affect the justice throughout a period of social crisis. The object of our analysis consists of the contradictions between: the law and justice; the justice and society and the act to fulfill the justice and what we have just called "the fall in exteriority" of justice. Within this context we refer to some aspects that characterize the person and personality of the judge. This essay is a pleading to refer to the principles, in the work for the law's creation and applying. Starting with the difference between "given" and 'constructed" we propose the distinction between the "metaphysical principles" outside the law, which by their contents have philosophical significances, and the "constructed principles" elaborated inside the law. We emphasize the obligation of the law maker, but also of the expert to refer to the principles in the work of legislation, interpretation and applying of the law. Arguments are brought for the updating, in certain limits, the justice - naturalistic concepts in the law. [ABSTRACT FROM AUTHOR]

The institution of the appeal on points of law has the role to ensure a unitary law interpretation and enforcing by the law courts. The legal nature of this procedure is determined not only by the civil and criminal normative dispositions that regulate it. In this study we bring arguments according to which this institution is of a constitutional nature, because according to the Constitution, the High Court of Cassation and Justice has the attribution to ensure the unitary interpretation of the law by the law courts. Thus are analyzed the constitutional nature consequences of this institution, the limits of compulsoriness of law interpretations given by the Supreme Court through the decisions ruled on this procedure, and also the relationship between the decisions of the Constitutional Court, respectively the decisions of the High Court of Cassation and Justice given for resolving the appeals on points of law. The recent jurisprudence of the Constitutional Court reveals new aspects regarding the possibility to verify the constitutionality of the decisions given in this matter. [ABSTRACT FROM AUTHOR]

Any scientific intercession that has as objective, the understanding of the significances of the "principle of law" needs to have an interdisciplinary character, the basis for the approach being the philosophy of the law. In this study we fulfill such an analysis with the purpose to underline the multiple theoretical significances due to this concept, but also the relationship between the juridical principles and norms, respectively the normative value of the principle of the law. Thus are being materialized extensive references to the philosophical and juridical doctrine in the matter. This study is a pleading to refer to the principles, in the work for the law's creation and applying. Starting with the difference between "given" and 'constructed" we propose the distinction between the "metaphysical principles" outside the law, which by their contents have philosophical significances, and the "constructed principles" elaborated inside the law. We emphasize the obligation of the law maker, but also of the expert to refer to the principles in the work of legislation, interpretation and applying of the law. Arguments are brought for the updating, in certain limits, the justice - naturalistic concepts in the law. [ABSTRACT FROM AUTHOR]

A problem of essence of the lawful state is to delimitate the discretionary power and respectively, the abuse of right in the state's institutions activities. The legal behavior of the state institutions is being materialized by their right of appreciation, and the power excess yields in the violation of a subjective right or a legitimate interest of the citizen. The application and observance of the lawfulness principle in the activity of the state authorities is a complex problem because the exercise of the state's functions assumes the discretionary power with which the state's organs are invested with, or otherwise said the 'right of appreciation" of the state's authorities regarding the moment of adopting and the contents of the disposed measures. The discretionary power cannot be opposed to the lawfulness principle, as a dimension of the lawful state. In this study we propose ourselves to analyze the discretionary power concepts and respectively, the excess of power, having as landmark the legislation, jurisprudence and the doctrine in the matter. At the same time, we wish to identify the most important criterions that will allow the practitioner, no matter whether he / she is an administrator, a public clerk or a judge, to delimit the legal behavior of the state's institutions from the power excess. In this regard, we appreciate that the principle of proportionality represents such a criterion. We consider that the law courts, by applying the principle of Constitution's supremacy, can censor some juridical acts contrary to the constitutional norms, if the Lawmaker does not foresee the competence of the Constitutional Court in this matter. In our opinion, all law courts, within the limits of the competence granted by law, can control and censor the juridical acts of some public authorities issued by power excess. In order to demonstrate these assertions some theoretical and juridical practice arguments are being brought. [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 states 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 state de jure. 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 criterions 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 criterion. 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]