The ideal law, the juridical system and the law's finalities

• Author: Nitoiu Roberta
• Pages: 181-189

THE IDEAL LAW, THE JURIDICAL SYSTEM AND THE LAW'S

FINALITIES

Ph. D Associate Professor Roberta Niţoiu

Abstract: The paper tries to define the distinct questions of which both the General Theory

of Law and the Philosophy of Law are deeply preoccupied the origin in the historical sense (the

appearance); the aggregate of public behaviour rules, general and abstract and the origin of law in

the sense of its substance, respectively the totality of the existing objective and permanent

conditions.

Key words: Law’ origin, juridical system, ideal law.

Here are some distinct questions of which both the General Theory of Law and the

Philosophy of Law are deeply preoccupied:

a) the origin in the historical sense (the appearance); the aggregate of public behaviour rules,

general and abstract, founded upon the cohesion of the social group and, averagely, comporting

sanctions - which, structuring the ensemble of inter-subjective relationships, do ensure the co-

existence of liberties within an organized society. This is the definition of the concept of law seized

as a phenomenon

1

. The idea of law

2

is tightly connected with the law's origin, this latter words

being accountable for two meanings;

b) the origin of law in the sense of its substance, respectively the totality of the existing

objective and permanent conditions.

Hegel rigorously separates the historical beginnings of the phenomenon "law" from what

might be called the "existential provenience" and, of course, from the origin of law in the sense of

objective and permanent conditions

3

.

What proves itself to be important about the origin of law "is not the determining of the

law's historical beginning, but its essence, the aggregate of the objective and permanent conditions

which determine its existence and constitute its essence"

4

.

Hypothetically, if the concrete and perpetual circumstances with a determining role in the

law's formation and maintaining would disappear, the law's existence should no more be justified,

would have no more ground, which means that the law's origin should be sought for "not in the past,

but in the actual law, because the origin principle does exist as long as the object itself exists; yet

the object exists for as long as the principle does"

5

.

The essence of law is constituted by the need for rules that would be external to the

individual conscience, rules of inter-subjective relationing, with no distinction made about their

forms taken, rules to be created by a social group

6

.

1

Ion Dogaru, D.C. Dănişor, Gh. Dănişor, Teoria generală a dreptului, Ed. All Beck, Bucureşti, 2002.

2

For details, see: vezi Ion Dogar u, D.C. Dănişor, Gh. Dănişor, op. cit., p. 42-70; D.C. Dănişor, Drept constituţional şi

instituţii politice, Editura Ştiinţifică, Bucureşti, 1997; Gh. Dănişor, Metafizica devenirii, Editura Ştiinţifică, Bucureşti,

1992; Idem, Metafizica prezenţei, Editura Ştiinţifică, Bucureşti, 1998; P. Pescatore, op. cit., p. 360 şi urm.; Ion Dogaru,

D.C. Dănişor, Drepturile omului şi libertăţile publice, Editura Zamolxe, Chişinău, 1998, p. 111 and fol.; Georges

Burdeau, Traité de science politique, Tome I, p. 29 and fol.; E. Durkheim, Re gulile metodei sociologice, Editura

Ştiinţifică, Bucureşti, 1974, p. 47 and fol.; Nicolae Titulescu, Reflecţii, Editura Albatros, Bucureşti, 1 985, p. 2 and fol.;

G. W. Hegel, Principiile filosofiei dreptului, Editura Academiei, Bucureşti, 1969, p. 279 and fol.; Mircea Djuvara,

Drept constituţional, partea I, 1924-1925, p. 124 and fol; J.J. Rousseau, Contractul social, Editura Ştiinţifică, Bucureşti,

1957, p. 99 and fol; Nicolae Popa, Teoria generală a dreptu lui, Editura Actami, Bucureşti, 1966, p. 121 and fol.

3

See Ion Dogaru, D.C. Dănişor, Gh. Dănişor, op. cit., p. 42-43.

4

Idem

5

Ibidem.

6

"The self-insufficiency, the loss of self- conscience as self-certitude determines the appearance of social structure s,

which tend to realize this self-conscience instead of the individual. These structures do not bring benefit to the

individual person, but t o the whole group, seen as a distinct entity. So the foundation of the group is not ensured by the