The state of law. A few accents

• Author: Nitoiu Roberta - Dusca Anca Ileana
• Pages: 172-180

THE STATE OF LAW. A FEW ACCENTS

Ph. D. Associate Professor Roberta Niţoiu

Ph. D. Associate Professor Anca Ileana Duşcă

Abstract: In time, a series of these were shaped regarding the connection between state

and law. The representatives of its doctrines are rather inclined to admit the existence of an

antagonism between state and law, considering that the law's ground lies beyond its creation by the

state, which means that law itself is something that signifies more than the positive law. On the

other hand, for totalitarian states, the state is a transcendent, supreme and exclusive reality, which

denies the existence of the rights that are intrinsic to the inner self of the individual, which even

denies individuality as an autonomous reality, reserving to the individual only a role of social atom,

to whom the state magnanimously concedes rights.

Key words: The state of law, philosophical perspective, law and positive law.

The question was asked and it always could be repeated: is there or not an antagonism

between state and law? To be able to answer to such a question is as delicate as it could be, since an

eventual answer depends on the philosophical perspective through which is analysed the notion of

law and on the way its finality and foundation are understood. The diverse answers of the various

schools of juridical philosophy, generally standing on two opposite positions as we will see next,

have this explanation.

Philosophical theories and streams were formed, which from divergent positions explain the

importance "of the state, the role it holds in defending the social interest of groups or of the society

as a whole"

1

.

In time, a series of these were shaped regarding the connection between state and law. One

of them is the jusnaturalistic opinion.

The representatives of its doctrines are rather inclined to admit the existence of an

antagonism between state and law, considering that the law's ground lies beyond its creation by the

state, which means that law itself is something that signifies more than the positive law. Thus the

conclusion according to which the state should be limited in its legislative action, an attitude

indicating an antagonism between the two entities - the state and the law. This adversity presents

itself as: "the reflected image of the antagonism between authority and liberty at the moment when

each of them tends to become absolute"

2

. Into this context, it has been said that the state and the law

present one to the other as a necessary evil

3

.

The positivistic attempts to eliminate the antagonism between state and law, by reducing the

latter only to the legislation created by the state, and thereby consolidating the state itself. But it

failed, because it stated that there is no law, prior and superior to the state's organization able to

limit the state's legislative action and that state was, by itself, able to self-limit and border its own

normative process.

1

Nicolae P opa, Teoria generală a dreptului, Third Edition 3, Ed. C.H. Beck, Bucureşti, 2008, pag. 7 4; See also:

Nicolae Popa, Ion Dogaru, Gheorghe Dănişor, Dan Claudiu Dănişor, Filosofia dreptului, Ed. All Beck, Bucureşti, 2002,

for the parts which present the juridical vein of the great strea ms.

2

Ion Dogaru, D.C. Dănişor, Gh. Dănişor, op. cit., p. 100.

3

"Natural law is the limit till which could be extended the society's stateship. It is limited, on one side, by the civil

society's impulsion towards chaos and, on the other side, by the state's propension towards an infle xible order. State and

society mutually see themselves as necessary evils" (Idem, op. cit., loc. cit.).