The Achievement of Law

The existence and achievement of law represent the conditions of public order.
It is considered that the achievement of law can be defined as being the process of
transposing into life of the content of the judicial norms, in the frame of which humans,
as subjects of the law, respect and execute normative dispositions, and the stately organs
apply the law, on the basis of their competence.
The law achievement comes in two forms:
-the achievements of law through the respecting and executing of legal dispositions by
the citizens and
-the achievements of law through the application of judicial norms by the state bodies.
A. The achievement of the law through the respecting and executing of the law.
We can name six characteristics of the achievement of the law, though the executing and
respecting of the judicial norms.
1. The first one is the fact that this form of achievement of the law implies the
fulfillment of the commands prescribed in the judicial norms, by the conformation
towards the normative dispositions (in both cases of dispositions with a
permissive or imperative character).
2. The conformation toward the fixed conduct through the norms of law is the direct
result of the action of the content of the law, as well of the acceptance of law by
the society .
3. This form of achieving the law is much richer than the other one the application
of law due to the participation of a much larger number of subjects (people and
organizations).
4. The fourth character is the fact that the activities implied in the realization of this
form are relatively simple; they can develop, even without the closing of a written
deal, without the fulfilling of certain formal conditions.
5. The fifth trait is the fact that they are compatible with the realization through the
creation and development of some judicial rapports, in which the rights and

obligations of the participants are realized within judicial connections established

by the most diverse judicial norms.
6. The sixth is that respecting and fulfilling (executing) the judicial norms, the
citizens capitalize on their subjective rights, with the taking into consideration of
the obligations that the those rights come with, during the process of social
interaction.

B. The achievement of law through the application of the judicial norms by the
stately authorities (the application of law).
Besides the participation of the citizens and non-governmental organizations to
the process of achieving the law, this is also realized through the means of certain
acts of authority, emitted by the stately authorities within conformity with their
competence established by law; this form is formally named the application of law.
The acts of law appliance can only be emitted by the state, the citizens realizing
the right by executing and respecting the judicial norms.
The ignoring of the differences between the two forms of achieving law could lead
to an arbitrary lack of differentiation between the activity of the state and the activity of
the other judicial subjects.
Essentially, the application of law lies in the elaboration and realization of a system
of stately actions, for the transposing into practice of the dispositions and sanctions of the
judicial norms.
When applying the law, the stately bodies manifest as carriers of attributes of the
states powers; their acts of application are acts of individual power.
Through the emission of application acts, the stately bodies establish measures of
sanctioning those who disregard their obligations.
It must be said that in the judicial rapports of this kind take place only the
ascertained rights and obligations bay a stately organ specially facilitated. The rights and

obligations of the subjects find their source in the judicial norms. The facilitated stately
organs recognize those rights.
The main traits of the application of law are :
1. The first is the fact that the creation of law is only reserved to some categories
of stately organs. Mainly, no one objects that an organ which elaborates a normative act
can also elaborate application acts. For instance, the government elaborates both
normative acts and individual decisions, or application acts.
2. The second is the fact that, unlike the normative acts which have a general,
impersonal, typical character, the acts of law application are individual and correctly
determined.
3. Unlike the normative act which functions impersonally and diffuse,
continuously acting until its expiration, the application act of the law finishes its effects in
the moment of its adoption by the facilitated organ.
4. Unlike the execution activity and respecting the legal norms by the citizens,
during which they can finalize, willingly, a legal rapport according to certain legal
dispositions, the acts of application, also acting according to legal norms, always appear
through the unilateral will of a stately organ.
7.The seventh trait is the fact that, having in view the extreme importance of the
judicial regulation of the social relationships, there are precise rules regarding the entry
into force, the principles of activity and the expiration of the judicial norms.
8.Finally, from this moment flows the term of consistency of the act by the
unsatisfied side, regarding the mode of solving the case. The control of the legality of the
act of application may by a hierarchical one or a judicial one.
It is considered that the achievement of law has four phases.
1.The first is the establishing of the factual state, which implies a rigorous
step for the detailed knowledge of the circumstances of the respective cause. Only those
circumstances that hold relevance in the deducted cause in front of an organ are to be had

in sight; these circumstances are generically named judicial facts. The stately application
organ will consult official documents, will listen to witnesses, will proceed to
reconstitute, will utilize the results of certain scientific research etc. All this has to give
the organ factual data, which have to constitute real sources of information capable of
accurately drawing the circumstances of the cause, to create firm beliefs in connection to
the factual state and to put aside the doubts. It is obvious that the establishment of the
factual state differs from one application act to another.
2.The second phase is choosing the judicial norm. Here the application
organs proceed to the critique of the norm, to the selection of the judicial norm for the
exact judicial clarifying of the established factual state. For the purpose of a proper
judicial qualification, the application organ fulfills a predetermined series of operations;
the nomination of the judicial norms, the verification of its authenticity and the judicial
power of its action: its rapports with other judicial norms; the determination of the exact
content of the norm, by consulting the normative act which comprises the respective
norm. The superior critique of the judicial norm must be accompanied by a good
specialized knowledge by the applying organ. The superior critique of the judicial norm
comprises: the verification of the norms authenticity; the verification of the act that
contains the respective norm; the verification of the action in time, space and of the
persons of the respective norm. The elementary (inferior) critique strictly regards strictly
the acts text, its mode of redaction, the observation of the eventual errors of redaction on
the occasion of the acts publication etc. In what regards the soundness and the legality of
the application acts, there must be a distinction between the application acts themselves.
Hence, the jurisdictional act has traits that individuate it in comparison to the other
application acts. Usually, in the exercise of the contestation of the application acts the
soundness/unsoundness and the legality/illegality of those acts are invoked. The superior
instance (in the case of jurisdictional acts) and the hierarchical superior organs (in the
case of the administration acts) verify the legality and soundness of the of the acts
subjected to recourse or contestation, within the framework of a complex activity in
which the two conditions of the acts validity are intertwined organically.

3.The third phase is the interpretation of the judicial norms, and it represents
an important moment of the achievement of law and it consists of the solving and
materialization of the judicial rule comprised within the norm which follows to rule the
respective rapport. The judicial interpretation is a highly important condition in the
process of correctly applying law.
3. The fourth and final phase is the elaboration and the emission of the
application act. It represents the result of a rational measure and a willful manifestation of
the stately organ, with the purpose of satisfying the rigors of the judicial norms. The
variety of the application acts determines a variety of forms these acts take, their validity
being determined by the respecting of certain conditions of form. In certain disciplines of
law (especially the administrative law) a great importance is given to the studying of the
elaboration of the administrative act of applying the law. The trial law (penal and civil)
largely deals with the form of the justices decisions.
There are certain principles that govern the elaboration activity of law-making;
those principles are deducted form constitutional regulations or are subscribed as such in
methodologies of legislative technique adopted by Parliament . One of them these
principles is that of the accessibility of normative acts (which implies the choosing of the
exterior form of regulation, the choosing of the regulation modality and the choosing of
the proceedings of conceptualizing and the norms language).

The judicial norm is the result of an process of abstraction, following the

evaluation and valuing of social relations. Not aiming for the concrete cases, but only to
general hypothesis, the judicial norm necessary operates with a series of concepts,
categories, definitions etc.
Having in view the necessity of regulating the conduct of the subjects, the
judicial norm will have to, in numerous cases, to limit social relations groups and
categories of possible participating subjects at these rapports. These elements must be
contained, by specific conceptualizing proceedings, in articles of the normative act.

The legal fiction is a complex proceeding of judicial technique according to

which a certain fact is considered existent, although it does not really exist.
The legal presumptions are technical proceedings by which the law maker
accepts or even imposes that something really exists, without the need of probing a
situation as such. The legal presumptions are of two kinds: relative and absolute. The
relative legal presumptions can be turned around by contrary evidence, while with the
absolute legal presumption, no kind of evidence is admitted.
Another aspect regarding the accessibility of normative acts, is their style and
language. Hence, according to art.33 form the no.24/2000 law we have: the normative
acts must be written in a concise style, sober, clear and precise, which exclude any
equivocal, with the strict respect of the rules of grammar and orthography
The use of neologisms is forbidden, if there is a synonym of great diffusion in
the Romanian language. In the cases in which a foreign expression is imposed, the
correspondent in Romanian will follow.
.The technical terms can be utilized only if they are meant for the field of
activity to which the regulation refers.
The writing is subordinated to the desire of easy comprehension of the text by
its receivers. Also the terminology of the law must be constant and uniform. This request
refers to both the content of a single normative act, as well as to the global system of
legislation, which must characterize itself by terminological unity.