Convergences and distinctions between moral and juridical order

• Author: Andreea Draghici - Ramona Duminica
• Position: Lecturer Ph.D. Faculty of Law and Administrative Sciences, University of Pitesti - Assistant Ph.D. Candidate, Faculty of Law and Administrative Sciences, University of Pitesti
• Pages: 38-41

CONVERGENCES AND DISTINCTIONS BETWEEN MORAL AND JURIDICA L ORDER

Drghici Andreea

Duminic Ramona

Abstract:

In the present article we attempt to plea d for the r eassertion of the unbrea kable connec tion between the

two types of order by sta rting with the finding that modernity has opted to break the link between mora l and

juridical order. The moral code appear s to co nstitute an expression of a universal order which must form the

basis of any legal or der.

Key words: order , law, mora l code, similarities a nd differences.

Introduction

Society nowadays is char acterized by a r apid pr ogression, a n unprecedented technical and scientific

development, which str esses the tendency to deny the collective mora l conscience, by promoting a more self-

aware co nscience, which in fact har ms the moral qua lity of the law. In order to r esolve this difficult situation, we

will demonstrate in the following pages that by returning the law to its moral foundations, we consider, we may

achieve the goal of ensuring coexistence of society.

1. Juridical and moral order. Outlining the concepts

It is unanimously accepted that the lives of people in society are not chaotic but ordered and organised.

One way or another, ever y human activity generally undergoes a process of regulation, in the sense that

they cannot take place i n a disorganized manner, outside of a certain social order. These activities may not b e

performed without a set of rules and principles, enforced either within a group or society. No social process may

exist without organisation, and therefore without regulation

1. “The creation of nor ms – notes E. Sperania – is as

natural a phenomenon as possible, in society. This enactment originates from the laws of life in general, and

afterwards from the laws of human thinking in ge neral and, finally from the nature of societ y and the

circumstances found therein”.2

The activities of members of society are regulated b y developing a set of rules, p rescriptions,

constraints, obligations, rights and duties of a moral, religious, juridical, economic, political, aesthetic nature

etc., which set in good order the conduct or behaviours of individuals or groups within society. Thus we explain

the fact that within the same society there is an economic order, a moral one, a juridical one and so forth, which

work simultaneously without excluding each other, and their result is nothing short of what is generically

referred to as the social order.3

The Romans first defined order through a famous turn of phrase: Dispositio unius r ei, post a liam, suo

quemque loco coloca tur – order is the positioni ng of every thing one after the other so that each is in the right

place. Throughout time, the concept of order has been explained from numerous perspectives: in sociology, it

was seen as the ensemble of interdependent and harmonious relationships wit hin society or in metaphysics as the

result of an organic connection between man, society and nature. In the theory and sociology of the law, order is

synonymous with an imperative disposition – a commandment, a prescription or it is con sidered an en semble o f

fundamental standards and values within any society, from which there can be no detraction under pain of

nullification, or it constitutes a framework for the creatio n, enactment and resolution of rules and principle s that

may be accepted as law, within a society.4

Each dimension o f the regulation of society includes specific values and receives direct or indirect

influences from the other dimensions. Given that they are connected and interdependent, they tend to render each

other adequate in order to form an organised and dynamic unit, whose integrity and efficiency are guaranteed by

law.5 The legal order of society, seen as a dimension of the social order - presents the two aspects of positive

law – the constraining a spect and the harmonizing aspect. It establishes itself through norms that sanction and

Lecturer Ph.D. Faculty of Law and Administrative Sciences, University of Pitesti (e-mail: andidraghici@yahoo.com).

Assistant Ph.D. Candidate, Faculty of Law and Administrative Sciences, University of Pitesti (e-mail: duminica.ramona@yahoo.com).

1 Ion Vldu, Introducere în sociologia juridic, 2nd edition, Lumina Lex Publishing House, Bucharest, 2000, pp. 117-118.

2 Eugeniu Sperania, Leciuni de enciclopedie juridic, in Antologie de filosofie româneasc, vol. IV, Ed. Minerva, Bucureşti, 1998, p.214.

3 Ion Vldu, op.cit. p. 118.

4 A. J. Arnaud (Ed.) Dictionnaire encyclopedique de theorie et de sociologie du droit, deuxieme edition, L.G.D.J. Paris, 1993, pp. 415-417.

5 Gheorghe C. Mihai, Fundamentele dreptului. Ştiina dreptului şi ordinea juridic, vol. I, 2nd edition, C. H. Beck Publishing House,

Bucharest, 2009, p. 318.