dr. Constantin Cezar Tită
Spiru Haret University, Romania
Faculty of Juridical, Economic and Administrative Sciences, Craiova
dr. Violeta Dana TITĂ
Lawyer
TITĂ&TITĂ Attorneys at Law
Abstract:
Each human individual tends to live with the others, forming a society within which they achieved excellence through its various institutions.
Once socialized, people begin to interact with each other, thus giving rise to legal relations, society being seen as the sum of interactions between individuals that compose it. Starting from the inside of each individual, which is a system of values, this system extends to the whole of society, which is the sum of individuals in interaction with each other.
All this life of society must be somehow regularized, this being the mission of the legal norm. The law, the amount of legal norms can not develop independently but closely related to the realities of the external phenomena, as the economic, social, political, scientific factor.
In each human community, the law was the strongest factor of governing and standardizing the relationships among individuals. The law is closely linked to the state from which it emerges and whose actions it regulates and gives them substance, configuring the status of law.
An analysis of the totalitarian societies indicates the importance of the law and its full realization, by comparing these types of societies with the democratic ones, being able to establish the preeminent role that the rule of law held in a community.
The most important factor of the law establishment is man and its legal sphere, where we find the fundamental individual rights. Respect, recognition, regulation and the guarantee of fundamental human rights are all imperatives of the state, the consequence being that to all the parts of the state will contribute to their defense.
Key words: Individual; Society; Judicial standard; State law; Fundamental human rights
- Introduction
The human being was ordained to live in a community, joining its fellows, this aspect being felt as an urgent necessity ever since its birth, when the baby instinctively seeks its mother’s body. Once born, everyone starts the journey towards perfection, learning from the others, whether family or community institutions, because, from a certain point of development it can self fulfill. “The human being is a metaphysical animal. Biological being, it exists in the world primarily through sense organs (…) For human beings the life of senses is associated to a meaning of life to which the being is able to sacrifice and thus provids a meaning even to his own death”[1].
The first connection of the individual with the others is the language, that is a real way by which it can socialize, communicate with the others, and can build itself. The freedom given to each of us, to think and to express ourselves as we wish, assumes that we are all subjects to the limits that make sense of the words that the language contains; the individual being not permitted any possible form of autonomy in the absence of this radical heteronomy[2].
The newborn child acquires a connection with each of its neighbours through imposed rules of the Law. “To be free, subject of law, it must first be connected (sub-jectum: thrown underneath) to the words that unite it with the other people (…) Isolated from all contacts with its fellows, the human being is doomed to idiocy in the etymological sense of the word (Greek idios: which is reduced to itself). It is, in fact, threatened by idiocy the one enclosed in its own perception of the world, incapable of understanding that other perceptions are possible, i.e. it is unable to harmonize with its peers in terms of world representation in which everyone has its rightful place”[3].
- About society as a system of interaction between people
Society, or rather the institution of society, is a magma of social imaginary significations, which we call a world of significations. It must define its identity, joints, relations with the objects it contains at any time. Every society is defined in a proper way, based on the relationship between nature and culture. The society also includes the basic needs and desires of the individuals forming it, without which there could be no human world, community or culture.
Within society, individuals give rise to relations among them, without the individuality of each person to be eliminated. Individuals, on the contrary, create the relationship in which they are part of, a trans-individual dimension, which is the origin and foundation of the community.
The members of a society , considered as such or as social individuals, establish the rules of the system, delimiting the spheres of the community and of the individual[4], by the interactions among them and the world of significations, which are recognized as such.
In terms of an individual and society, we can speak of the ontogenesis of the subject. This ontogenesis is a process of individualization or, more precisely, of individuality in series. It is a transduction process almost as the crystallization of a saturated solution, in which the being duplicates itself giving birth to a new structure: a first individuality produces an individual, but the individual is not fully individualized, the process continuing with a new individuality that makes each man a social person.
Individuals give birth to inter-relationships among them, exterior relationships, which binds but does not penetrate the inside of individuals[5].
Consequently, the society should be seen as a system of interactions. “By society we mean a set of interacting individuals and groups based on rules and values of action and thought, that are considered as belonging to the same unity they replicate or need to replicate or reproduce, every time they act following their own interests”[6].
The members of a society establish a world of meaning – imaginary – in which they recognize themselves, establishing rules which ensure the functioning of the system, delimiting their spheres of individual and social action.
“They perpetuate through their interactions continually inventing and reinventing their own society. In other words, the society has no origin and no other consistency or existence, but this interaction, and, on the other hand, the society that the individuals establish by their interactions turns them into its members, as social individuals.
It is, therefore, an autopoietic system – even for the fact that, since their birth until modern times, societies have tended to secure greater legitimacy to disguise this origin (individual interactions) including a founding myth in their imaginary “[7].
The society is formed of individual systems, which in turn are constituted by aggregation, in other systems (family, business, etc.), representing, in turn, components of the society, each having a regulatory role: economy, the legal system, the education system, etc.. “Every human society is an educator of reason in its way. The structure of what we call “society” is composed of links of the word, which make people join each other, and, from this point of view, it is not therefore possible to any animal society”[8].
In the concept of social naturalism, the society is a natural fact, born from the instinct of the human beings of joining themselves, the common good being indivisible and not identical to the individual good of each of its members.”No form of human association can properly function without the establishment of a minimum of rules of conduct, that society being born once the rule is established. The purpose of the rule is related to the organization of social life on a rational grounds, the society functioning independently of the individual wills, as a collective consciousness (E. Durkheim) which is the origin of the rules and requirements governing the collective existence and securing and the need or undesirability of action, transmitting and cultivating, from generation to generation, the tradition for a social order characteristic to the way of a stable performing of collective life”[9].
- About the relationship of law with state and society
Regarding the relationship between society and law “in relation to the global society and future, the legal dimension of the reality of today and tomorrow is interdependently and interferingly configured with other dimensions: economical, political, moral, scientifical, religious, managerial, communicational etc. (…) As a constituent element of the social control and normative social construction, law punishes, deters, annihilates, controls, prevents, persuades, protects and organizes.The idea is that law should join the line of development of desirable trends, to serve the human purposes and provide a historical time, also asserting specificity and complexity, as it is technique, science and art”[10].
Analyzing the relationship between the political and legal system, it is important to mention that, from ancient times, law was the right tool for preserving the domination of a small group people over the majority, since religion, totemism and taboos no longer met the interests of a society in full evolution. However, the law protects both the dominant group, and especially today, the vast majority of population, by recognizing the individual rights. If a sanction in the ancient world was especially randomly achieved, sanctions are currently applied using the rules relating to person or action, in a specific way[11].
The State and the Law are closely connected, both having a big influence upon individuals and their fundamental rights. “The connection between the state and the law is distorted or enhanced depending on the political regime considered as the way in which the political relations are assumed, as an expression of the state meeting the goals of the ruling authority (…) the wide range into which the political regimes are constituted, from the democratic to the totalitarian ones, is closely related to the degree of reflection of the citizens’ will and interests in the establishment of such regimes”[12].
For the Roman people and the magistrates of the time, the Latin adage status rei publicae meant “state of public affairs” or “state management of public life”[13], and the word “state” has its origins in this adage, which, in time, ceased to mean form or state of the political environment and became synonymous with political unity, an institution supporting a nation who can survive not only to governments, but also to forms of government that appear and disappear[14].
In the current context, especially in the countries that rejected the totalitarian regimes, there is the issue of clarifying the contents of the “rule of law”‘, considering that the reorganization of post-totalitarian society can be achieved only if there is the rule of law. The evolution of the states where totalitarian regimes governed can only be achieved in the context of assimilating the values of old and fully developed democracies.
It goes without saying that the rule of law, which ensures the power of the law and the human rights are acknowledged and protected, is organized on the principle of the separation of powers, the judiciary gaining a role and a force of ensuring that the judicial issues of each individual and the legitimate institutions of the state are observed.
The defining features of the rule of law, briefly presented, would be: the subordinating power to law; the pyramidal structure of power and its distribution to a large number of bodies, the guarantee of fundamental rights and freedoms of individuals, the participation of citizens in exercising the power in two ways: a) the judicial control of the law observance by the state authorities, by judicial recourse against acts of unlawful authority and b) the political control exercised by the elected assembly; the limiting of each of the three branches: legislative, executive and judicial by the other two, the ranking of executive and judicial power to allow the control among the existing authorities in the system of the same power[15].
Finally, we must emphasize that, especially in the post-totalitarian societies it is imperative for the civil society to crystallize and become a not to be neglected force, concerning the democratic process, for the full realization of the rule of law. However, there is also the need for the constitutional regime to clearly and effectively act and, not just at the oral level, for the existence and strengthening of the rule of law.
“The law, in the context of the rule of law, should ensure predictability and security, being a trustworthy law, an optimizer for social relationships, with clear, legal, stable, sustainable, publicly known, general and retroactive norms, coherent and capable of obedience to them, developed by the law authorized bodies to invest them with binding force, mandatory for all citizens or civil servants (…) The corollary of the rule of law must be the dedication, guaranteeing and promoting of the international human rights standards, the achievement of a favourable climate to the development and valuation of the human person as a fundamental criterion of morality which to the reveal the degree in which the state and law are, in fact, for the human being”[16].
If we accept the ideea that the state is an organized society, with an autonomous government, it will result that we are all members of the state, the latter being the legal roof of a sociological phenomenon, the community as a whole, more accurately called a nation or civil society covering the civil society[17].
In the state of nature, the Golden Age of mankind, one can not say that there were no links among individuals and each lived in isolation from the others, without the protection of one against the others.
In reality, people had this protection, perhaps because, in general, people need each other. Last but not least, there are social bonds of privileged nature, family being one of them, which also constitute the fundamental conservation of the individual. A military purpose must be given to this notion of preservation of the individual : family defends the individual in conflicts and misunderstandings that he has with the others[18].
According to Kant, the state is “a multitude of people living under the law and associated by a contract”[19] For the law to be effective and not just to remain an “empty argument”[20] that public power should be an important element in the state, aimed at the installation of the natural law. The end of the war of everyone against everyone can only be achieved by means of reason, which can establish the state. Constraint transforms the precarious state of freedoms from the state of nature in a state of law.
By means of law, the state of nature is replaced with the civil society – people are born with rights, and the purpose is to protect and to provide them[21].
According to Leon Duguit[22], ” State is the force” to be put into the service of the law to be legitimate, the same concept being embraced by Rudolf von Ihering, who argued that the right arises from the power of the strongest, which, guided by its own interest, restricts his own power by establishing norms[23].
The State imposes a set of binding rules to population, rules that are necessary to achieve its purpose – the common good – rules to be followed and if they are violated, the specialised state institutions sanction such an event.
“The State order differs from other social orders being an order of restraint (…) The State order is a constraint order especially since it is an order that sets a restraint. Its rules are characterized by the fact that they specifically state an act of coercion to be exercised according to certain provided conditions by an individual against another individual”[24].
The State exercises this constraint, of doing or not doing something, according to legal rules, to achieve a certain social education lest any individual end up in the situation of being constrained, but to act according to its own, thus modeled, conscience.
Since the human being acts in society, establishing relationships with peers, work must be governed by legal rules. Their asemble – the law – in its birth and development supports numerous influences from “the physical components of the environment and social system components (economic, political, moral and so on)”[25].
The human factor is one bearing the most interest for legislators, because the individual is the one who has the greatest influence on the surrounding reality. Since birth, each individual learns to be social, to appropriate various rules of living, acquiring skills to meet all the requirements outside it. The legal rule is the one shaping each one’s behavior, lest there is any pre-cohabitation violation.
The focus and concerns of the legislature – as the creator of law – are on the individual’s fundamental rights, which “guarantees the full equality of all human beings, unhindered in their ability to manifest virtue dignity and freedom, for the fact that the human being, according to its nature, is endowded with dignity and freedom”[26].
The respect for the natural law allows the society to progress and the individual to benefit from the social advantages, respect achieved through a double imperative: on one hand one must do everything according to social solidarity, and on the other hand it must not do anything that is against it.
The state can not create an arbitrary law, the legislature being bound to create a system of responsibilities for the public authorities, to keep people away of the arbitrary of the governing authorities. On the other hand, the citizens must obey the law, not necessarily as a result of coercion, but as the respect of the social solidarity. The individual has a legal sphere that the state can not ignore and fundamental freedoms are necessary for the achievement of harmony in society.
The state has also obligations to its citizens regarding health, social care, education, assistance for elderly or people who have different physical or mental impairment. All these obligations are related to rights of individuals who are part of that state.
Starting from the idea of social solidarity, there is the theory of natural law, superior to the positive one, going through the writings of Grotius, the theory of individual freedoms stated in the Declaration of the French Revolution and then through the other instruments of protection, made later on. “The concept of human rights transcends its recognition through texts: international (or national) texts does not” create “rights, but recognize them and, in the case of some of them, they turn them into legal categories and giving them a protection regime”[27].
Since its birth, man, by his own quality of human being, has certain subjective rights which are natural rights of individuals. He is born free, understanding physical and mental freedom, and this freedom entails the obligation of others to respect his free, physical, mental, intellectual, moral development, this erga omnes obligation being the very foundation of law. By birth itself people acquire the same rights, being free, and this freedom must be observed by the state.
The obligation to observe the fundamental human rights and freedoms is “the same in all times, in all countries, for all nationss; it is based on the natural human rights of the individuals that were, are and will always and everywhere be the same rights for all people”[28].
In terms of interstate relations there is an obvious concern regarding the cooperation in the field of essential human rights. In this regard, the recognition of basic human rights has deep roots, from Aristotle’s ideas about the natural law, through the writings of the Founding Fathers, those of J.J. Rousseau and other representatives of the Enlightenment and materialized as we have shown, during the French Revolution and the American Declaration of Indepen-dence.
Since the 19th century we can mention the first legal instruments transposing the implementation of these rights, due to the fact that, in the inter-war period and especially after the Second World War, the legal protection of the human rights proves to be an imperative of the international community. This resulted “in times to come, in an impressive body of rules of the universal, regional or sectoral nature, due especially to the perpetuation of the practice of violating the human rights in those countries governed by communist regimes”[29].
In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights, to which more than 60 conventions and declarations followed.
The Universal Declaration of Human Rights was proclaimed and adopted by the UN General Assembly on December 10th,1948, being the instrument that marked the beginning of a new stage in the legal protection of human rights, its fundamental rights.
This Declaration is the first international document of universal jurisdiction in the field, that ment the attempt of unifying the concepts regarding the legal protection of human rights. “The philosophical sources of the Declaration, to which its Preamble refers, are the concepts of human <human inherent dignity> and inalienable nature of human rights”[30].
Moreover, in the Preamble of the Declaration, the historical sources can be found, the reference to “breach and contempt for human rights” that generated “barbarous acts which outraged the conscience of mankind”, for its final part to bring recognition to the fact that rights and freedoms contained in the Declaration are “a common standard of achievement for all peoples and nations”.
The Declaration notes that the rights composing it are not absolute, the states being able to adopt laws that limit their exercise. But this limitation can be made only to “ensure the appropriate recognition and respect for the others and compatibility with legitimate requirements of morality, public order and the general welfare in a democratic society”[31].
The Universal Declaration of Human Rights became “the basis for the various bodies of the United Nations to protect rights. The Declaration meant, however, only the beginning of a process of development of international treaties to be the basis of international law of human rights”[32].
- Conclusions
The same reasons that led to the foundation of the United Nations and the drafting and adoption of the Universal Declaration of Human Rights, led, within Europe, to the establishment of structures and acts to ensure the legal protection of the human rights.
The reaction against the fascist political systems was one of the important factors that made the European countries start identifying and achieving tools that lead to individual protection.
Moreover, after the Second World War, a different political system emerged – the Communist one – which led to stating the necessity of protecting human rights and funda-mental freedoms.
In 1950, in Rome, the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms) was signed, which entered into force in 1953. An institutionalized system of human rights protection was established, and “by this, the human rights fully became part of the positive law field, at European level, and it was created and a legal regime of rights as well as a protection system, by legal proceedings.
In time, the significance of the European Convention on Human Rights was conside-rably enriched by the extensive jurisprudence of the European Court of Human Rights”[33].
The object of the European Convention on Human Rights is the fundamental human rights and freedoms, their protection, based on two key documents in the field: The Declaration of the French Revolution in 1789 and the Universal Declaration of Human Rights, “one internal with universal value, the other adopted by an international organization of universal jurisdiction by its own mission”[34].
The observance and protection of human rights is the essence of a democratic society, and this fact has the consequence the all parts of the state will help to their defense. The fundamental human rights, such as the needof their defence, first appeared in the political struggle, as the result of ideology, for, later on, to achieve a positive and judicial nature by being incorporated in the rule of law.
References
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- Meylan, J.-H., Essai pour une systemique du droit, Schulthess Medias Juridiques S.A. Geneve-Zurich-Bale, 2010;
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[1] Supiot, A., Homo Juridicus. Essay on the anthropological function of law, Rosetti Educațional Publishing House, Bucharest, 2011, p. 9;
[2] Supiot, A., Homo Juridicus. Essay on the anthropological function of law, Rosetti Educațional Publishing House, Bucharest, 2011, p. 10;
[3] Idem;
[4] Apud Meylan, J.-H., Essai pour une systemique du droit, Schulthess Medias Juridiques S.A. Geneve-Zurich-Bale, 2010;
[5] Apud Meylan, J.-H., Essai pour une systemique du droit, Schulthess Medias Juridiques S.A. Geneve-Zurich-Bale, 2010;
[6] Godelier, M., Au fondement des societes humaines, ce que nous apprend d`anthropologie, Paris, 2007 quoted in Meylan, J.-H., Essai pour une systemique du droit, Schulthess Medias Juridiques S.A. Geneve-Zurich-Bale, 2010, pp. 32-33;
[7] Meylan, J.-H., [4], pp. 33-34;
[8] Legendre, P., De la Société comme Texte. Linéaments d’une anthropologie dogmatique, Fayard, 2001, quoted in Supiot, A., Homo Juridicus. Essay on the anthropological function of law, Rosetti Educațional Publishing House, Bucharest, 2011, p. 11;
[9] Craiovan, I., Philosophy of law or law as philosophy, Universul Juridic Publishing House, Bucharest, 2010, p. 32;
[10] Idem, pp. 280-281;
[11] Ibidem, p. 293;
[12] Ibidem, p. 293;
[13] Brun, H., Tremblay, G., Droit constitutionnel, Les Editions Yvon Blais Inv., Quebec, 1990, p. 61, quoted in Bădescu, M., Constitutional law and political institutions, Sitech Publishing House, Craiova, 2011, p. 73;
[14] Bădescu, M., Constitutional law and political institutions, Sitech Publishing House, Craiova, 2011, p. 73;
[15] Apud Rigaux, Fr., Introduction à la science du droit, Editions Ouvrieres, Bruxelles, 1974, pp. 35-36; quted in Craiovan, I., Philosophy of law or law as philosophy, Universul Juridic Publishing House, Bucharest, 2010, p. 296;
[16] Craiovan, I., Philosophy of law or law as philosophy, Universul Juridic Publishing House, Bucharest, 2010, pp. 296-297;
[17] Hauriou, A., Gicquel, J., Droit constitutionnel et institutions politiques, Editions Montchrestien, Paris, 1980, p. 96;
[18] Lazzeri, Ch., Droit, pouvoir et liberté, Presses Universitaires de France, Paris, 1998, p. 242;
[19] Kant, I., quoted in Bădescu, M., Constitutional law and political institutions, Sitech Publishing House, Craiova, 2011, p. 73;
[20] Bădescu, M., Constitutional law and political institutions, Sitech Publishing House, Craiova, 2011, p. 73;
[21] Idem, pp. 73-74;
[22] Duguit, L., Manuel de droit constitutionnel, Anciennes Maison Thorin et Fontemoing, E. de Boccard, Editeur, Paris, 1923, p. 26;
[23] Ihering, von, R., L`evolution du droit, Marseq, 1901, p. 168, quoted in Bădescu, M., Constitutional law and political institutions, Sitech Publishing House, Craiova, 2011, p. 74;
[24] Kelsen, H., Teoria generală a statului, trad. J. Vermeulen, E. Glaser, Oltenia, 1928, pp. 5-24, quoted in Craiovan, I., Philosophy of law or law as philosophy, Universul Juridic Publishing House, Bucharest, 2010, p. 227;
[25] Popa, N., General Theory of Law, C.H. Beck Publishing House, Bucharest, 2014, p. 51;
[26] Idem, pp. 58-59;
[27] Sudre, Fr., European and international human rights law, Polirom Publishing House, Iaşi, 2006, p. 46;
[28] Duguit, L., Manuel de droit constitutionnel, Anciennes Maison Thorin et Fontemoing, E. de Boccard, Editeur, Paris, 1923, p. 4;
[29] Miga-Beşteliu, R., International law. Introduction to public international law, All Publishing House, Bucharest, 2007, p. 172;
[30] Selejan-Guţan, B., European protection of human rights, AllBeck Publishing House, Bucharest, 2004, p. 9;
[31] art. 29, alin. 2 of Universal Declaration of Human Rights;
[32] Selejan-Guţan, B., [30], p. 11;
[33] Selejan-Guţan, B., [30], p. 30;[34] Bîrsan, C., The European Convention on Human Rights. Comment on articles, volume I Rights and Freedoms, All Beck Publishing House, Bucharest, 2005, p. 6;