Constantin Cezar Tită
Spiru Haret University, Romania
Faculty of Juridical, Economic and Administrative Sciences, Craiova
c.tita.dvl@spiruharet.ro
Violeta Dana TITĂ
Lawyer
TITĂ&TITĂ Attorneys at Law
danatita@avocattita.ro
Abstract
The need of rules was felt beginning with the ancient times since the formation of the first forms of human organization that were based on commands expressed through the implementation of common needs. Historical transformations related to the emergence of social classes, led to the formation of the state, a guarantor of rules imposed on individuals through laws.
Society, i.e. the sum of individuals, is the recipient of laws, also being the crucible in which the rules come into being which govern all the legally created relationships.
The Law is the guarantor of freedom, it is the one who, by its controlling position gives a direction to the entire community, namely imposing the achievement of the common good of all people. In order to achieve this goal, each individual must cooperate with the others, but he also has to fight and to defend the rights and interests when they are threatened. The State will act in his defense as a source of Law and guarantor of its application.
Closely related to the concept of Justice, who is older than the Law, Justice is the state in which each individual understands that everyone will get what he or she deserves, or be punished for each of his or her deeds. In this respect, justice can be identified with absolute Good, and forms both the content of the laws, which people want closer to the archetype of the Divine Law.
Even if, at a certain moment, a rule may seem unfair, it must not be assessed in its individuality but in connection with all other legal requirements, the foundation of the legal system to which it belongs being assessed together with its correlation with the idea of Justice. If a law is fundamentally unfair and does not correlate with this idea, the only solution is resistance to this law, or, in unfortunate circumstances, resistance to an entire system, leading even to insurrection.
Key-words: law; justice; state; natural law; individual
- Introduction
Since ancient times, any human community has felt the need of rules of behaving without which living together was not possible. Due to this need, different rules or regulations came into being, rules whose observance was mandatory. Together with the evolution of society, different organizational forms were made up, for drawing up, implementing and enforcing rules, and, finally, for the exercise of the right.
Every nation, under the universal principles of equity, fairness and justice, has its own legal system. There are authors, including Hegel[1] dealing with the drawing up, implementation and exercise of the right, on separate branches, and not as a social product of cohabitation.
The first human communities were led by commands of expressing basic needs of life in common. After a long period of practicing them some taboos occurred, which aimed at the most different areas of the community life. These social standards changed together with the changes in the lives of those who followed them. At this stage of historical development, they were of civic, religious or moral nature, because there was no apparatus designed to ensure their requirement, imposing them a legal nature. Punitive sanctions for breaches, were applied by the community as a whole, namely a person may have been expelled from the tribe or blood revenge may have occurred (Law of Retaliation).
The scission of society into classes with different positions in the productive life led to new situations (concerning the prisoners of war turned into slaves, the debtors, the successions). Requirements, seen as essential for the privileged classes, were no longer of the whole society, but they had to be imposed, if need be, as a force of constraint, which belonged to the state. This enormous power of constraint must be “(…) borded by certain principles: equity, the insurance of the basic human rights, social justice, social progress “[2].
There is a strong link between the state and the law, the state as a form of society organization, a way in which social groups promote their common interests. Being the bearer of the sovereignties of the individuals that forms it, the state decrees the legal rules or social standards which aspire to recognition by becoming law.
In nature there are ties, among the individuals of the same kind, which make them join and form a community. There are both common and different elements between the human societies and the animal communities, human societies being endowed with reason. As a reasonable animal, the man is involved in the general natural determinism being subject to the laws of nature but also having its own laws, derived from its own reason, dominated by the natural law of conscience. There is therefore a natural right of all natures and one belonging to the human species. Since the Roman solicitors established this distinction, between an ordinary man and other beings and the right of nations (jus gentium), human societies, dominated by reason.
Within the society, individuals establish relations among them, without the individuality of each person to be eliminated. Individuals, on the contrary, creates a transindividual dimension by the relationships in which each is a party, which is the origin and foundation of the community.
Members of a society, considered as such or people taken as social persons their own social set up the rules of the system, delimit the spheres of the community and of the individual, by interactions between them and the world of significations, by which they recognize themselves as such[3]. We can speak, as far as the individual and society are concerned, of the ontogenesis of the subject. This ontogenesis is a process of individualization or, more precisely, of a series individualization steps. It is a transductive process about the crystallization of a saturated solution, in which the being duplicates itself giving rise to a new structure: a first individuality produces an individual, but the individual is not fully individualized, a process going on with a new individuality that makes each person exist as a social person. Individuals give birth to exterior, inter-relationships, which bind them but does not penetrate the inside of individuals[4].
Consequently, 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 acting and thinking that are considered as belonging to the same corpus they replicate or reproduce every time they act, following their own interests “.[5]
The members of a society establish a world of meanings – the imaginary – in which they recognize themselves, producing rules ensuring the functioning of the system, delimiting their spheres of individual and social action. “They perpetuate through their interactions inventing and continually reinventing their own society. In other words, the society has no origin and no other consistency or existence than these interactions, and on the other hand, the society that the individuals establish by their interactions makes them its members, as social individuals.
It is, therefore, an autopoietic system – even because since of their birth until modern times societies have tended to secure greater legitimacy to disguise this origin (the individual interactions) including a founding myth in their the imaginary “.[6]
The society is composed of individual systems, constituted of other systems, by aggregation (family, business, etc.), which are, in turn, components of the society, each having a regulatory role: economy, legal system, education system, etc.. “Every human society is in its way an educator of reason. The structure of what we call “society” is composed of word links, which make people join each other, and it is not therefore possible, from this point of view, in any animal society. “[7]
The right, in the most general sense, is the science of freedom and rational use of human faculties, directing its activities through intelligence and reflection. Where there are people, there are feelings, opposite ideas, rivalries. There are also conflicts between the selfish, independent forces, belonging to the natural societies.
There is, prior to the human laws, a law of nature, which controls and imposes to the individual passions. People are equal and free, and cannot obey to one another, and must limit their freedom not to cause harm to one another; they must respect the word given to establish a relationship with the others.
Man lives in nature, in a constant contact and agreement with the other things that form it. Being part of nature, man can only obey the rules, but as regards the relations with his fellows, he can establish specific rules. These rules, which ultimately become law together with the evolution process, express the social needs and concepts, specific to each step in the development of the society.
There is a more and more obvious feeling in any society, leading man to the understanding of the fact that he cannot be in the presence of his fellows without admitting that he also has rights that he has to respect. This is the embryo of the idea of justice. Establishing a certain discipline and work order in everyone’s activity, as a safeguard to the common interest, is the need of people living a social life, in any form of organization.
This feeling of collective interest, of order, is the basis of any society. The independence restricted within the boundaries given by the reality of life in common and the reason added to the instinct make the right, which is to determine and ensure respect of the human beings. Since the human being, by his own nature and needs, is ment to live in a society with the others, being a zoon politikon as Aristotle called him, the right is seen as the destiny of the mankind, responsible for the instinct of sociability. Having the origin and essence in these needs, covering a natural end, the right is, in its turn, a natural concept. The evolution of the right, as the set of rules applicable to the people of a community, was long and sinuous, passing through all the forms of the society. At the beginning, in those communities located in the first stage of development, the relationships among the members “were established according to the commands expressing the basic needs of life in common and were part of a system of social standards. The extensive practice of these communities caused some taboos, corresponding to the so-called system of clan totemism”[8].
To escape the tyranny of individual orientations and to meet his daily needs, the man established the coercive, patriarchal, priestly or warrior power. Unable to protect against the outer world, only by himself, against the forces of nature and his fellows, the man sought for security given by obedience: a leader recognized as such, who had the task and power to establish the rights of each other and to limit the claims of those who want to break them. At this stage, of the embryonic state, the authority is based on force, the individual disappears, there is only the group and the rights are common to all the members of the group.
These primitive forms of the society did not last too long. Man has always sought for protection, the law being one of the instruments which could provide it. Where there is law governing everything, selfishness cannot come into being and the individual rights are respected. “Human freedom is full only when it does not harm the freedom of the others. Human rights cannot take shape, and cannot become reality but within the frame of an interaction based on the coexistence of freedoms and not on the harmful and damaging development of the rights and personal interests for the other human beings[9].
The right, as a phenomenon, develops in connection with the local realities, in the historical given conditions. “Legal Reality (The Judicial) is an inalienable dimension of the social reality in well-determined historical conditions. Its existence cannot be separated from the other parts of the society, influencing them as well”.[10]
Starting from the concept of the great jurist Rudolf von Ihering (“The Struggle for Law” 1872), that the purpose of law is to cultivate pleasure and avoid pain, namely the protection of interests, it results that every human individual in pursuing his own interest, must cooperate with the others, and hence the need for society and the state. The human being is a political animal willing he fails to deal with other people, because loneliness is dangerous to him and there are a lot of things that are better done when more people join There comes a time when man cannot live in the conditions that nature gave him and must join with others in order to survive.
The need to find a form of association that ensures each protection of personal liberty and individual property led to the State which quickly became a law enforcement element.
There is strong link between the state and law, as the state is a form of social organization, a means by which socials groups promote their mutual interests. Being the bearer of the sovereignties of the individual forming it, the state establishes the legal rules or assigns the judicial value to the social standards aspiring to become consecrated by the help of law.
To preserve himself, the human being must fight to defend its own person and property and there should always be an opposition to injustice and against right violations and its interests. The ruling minority gave the state the coercive force backed by a body of laws that ensure order to the population and, admitting certain rights to its “subjects”, determines them to obey the laws and be loyal to the state.
“In order to preserve the being, society needs the coordination of individual activities, in cooperation and order, regarded as the minimum conditions of consensus in promoting collective purpose.[11] “As long as the law is indispensably linked to injustice – and it lasts as long as the world exists – it will not be spared the fighting (…) Justice therefore holds balances in one hand, weighing justice and a sword on the other hand, with which it defends itself.”[12]
The action for the acquisition and defense of subjective rights is an expression of the struggle for law and hence for Justice. These are legal faculties offering their holder a number of possibilities, protected by law: to have a certain attitude towards his right (the owner of the land who can build on it, can sell, or transform it etc.), may ask the other members of the society to have a certain attitude towards him (the creditor may claim the restitution of the loaned property etc.) may request that his right to be protected via state coercion when it is encroached upon.
In the field of law, the idea of Justice plays an important part being similar to the idea of Scare at the religious level, of Right in morality, Nice in terms of Aesthetics, now being full of meanings and experiences from the old times. “The Greek primitive fantasy is Themis,” Jupiter’s “counsellor” who, by his various counsels, causes discord and war. The marriage of Jupiter and Themis brought to the birth of Dike, the Goddess of Judgment (the sister of Truth) that aims to reconcile the parts and solve the problems. “[13].
From the ancient perspective of the concept emergence, Justice is of divine origin, being previous to Law, to which it is pre-eminent. This primacy is due to the fact that Law absorbed other notions and concepts not necessarily connected to the idea of Justice. From Aristotle we have the unquestionable idea that law is a social activity, appearing only in relation to judge if a dispute cannot be friendly solved, while Justice is the constant and sustainable will to assign the right to everyone: Jus suun cuique tribuere as the great Roman jurist Ulpian said. Every individual, every people must fight for its rights. “Law is not a mere theory, but a living force. Therefore, Justice holds balances in one hand, weighing justice, and sword in the other hand, with which it defends it. The sword without balance is brutal force and the balance without sword is the failure of the law “[14].
Law can only exist where there are people, in the citadel, because this implies the existence of the judge, namely the third person to weigh the facts, using the balances, and gives everyone according to his merits or facts. The law indicates the permitted facts, those prohibited or imposed on the society according to the idea of Justice. [15]. “It was noted that during long periods in the life of individuals and peoples, the two concepts, law and justice, were reduced to only one and it was considered that everything that was set is right.”[16].
Citizens must be educated so that they can rightly judge, to discern the true good, to be guided by the world of Ideas, to respond to an absolute demand, required by ideas, not by facts. The concerned citizens will reject the reduction of the political action to a clever use of techniques of succeeding, due to the continuous and active presence of the Ideas. Plato rejects any political doctrine admitting, in Politics the right of the most powerful and who turns success into the only criterion of legitimacy and the only source of happiness, politics must be subordinated to morality, so that whoever believes that a success achieved by unworthy means may lead to positive results proves to be wrong. The parallel between the state and the human individual is relevant from the pedagogical perspective: Man may err upon the Good.
Justice requires the subordination of all people to the idea of Good in order to achieve a good state organization, of the laws, welfare resulting from all of this harmony. Authentic justice “(…) does not intended the deed pointing outside, but the one inwardly directed, regarding the self and everything that has to do with it.”[17].
Human aspirations have always been oriented, and in every area, to better and perfection. Plato explains this by “anamnesis”, knowledge meaning actually to recognize. The soul, due to the sensorial contact with different things, awakes and “remembers” the supreme idea from which it comes from. Essences, ideas, form a perfect eternal world, and the appearances, the sensitive, imperfect and changeable world. Wanting to convey the essence of the material world in its eternal laws, man (legislature) fails because the human nature is perfectible and not perfect. The laws of the citadel will be the same: imperfect, unable to satisfy everybody. Positive law is a natural fact, a creation of the human spirit, connected to the causes and aspects of reality. But every man carries within him the eternal principle of law, of justice.
It has been said [18], that man can develop rules and especially laws only if he himself has this correcting aspect in his nature.
Plato does not explicitly show the idea of natural law, higher set than the one created by men, although he speaks about the absolute Good and justice rooted in it.
Aristotle distinguishes between natural law – unwritten law, expressing fairness – and positive law – written law, stemming from will and human reason. Law is not an artificial construction or something given by the pure reason, but the political expression of the natural order, and must analyze the situation of the citadel, its history and the composition of the social body. Above positive law is an unwritten law, an absolute justice contained in any written law. What is right is according to the natural order and deducted from observing things, beings or human societies. The sensitive, perceptible world, takes part to the world of ideas, but will never reach their perfection, and this is true for natural law for the duality: natural law – positive law.
Regarding laws, they should be given a greater respect because they are those that impose the principles of order and freedom and prevent arbitrariness. ” When creating laws if the state does not promote virtue as the ultimate aim, it becomes as a sort of military alliance of distant peoples and the law, from this moment, is a mere agreement (…) it is only a guarantee of individual rights, without any influence on the personal morality and justice of the citadels “.[19]
Law cannot be a mere convention, but it must be based on equality and regulate relations between friends: “Conventions come and go, but friendship remains, being the only one allowing law to be right and justice can only be achieved among equal men.[20] “The state governs people’s lives through laws. Justice, which forms the content and purpose of the law, results in equality but Aristotle makes an analysis of it, distinguishing between distributive justice and legal coercion.
If the first applies to honors and goods distribution, for everybody to receive its merits, the second, “which could be called and amendment, equalizing or synalagmatic, i.e. regulating the relationship between mutual changes”[21] making sure that no more or less is received, as “a means between damage and gain.”[22] Aristotle distinguishes between distributive (shared) justice, whose rules require a certain way of sharing, and retributive justice (based on punishment and reward), whose rules require individual protection against injuries caused by violence and fraud. Aristotle considers a more general justice, because he does not reduce any of the other two; however, this more general justice mainly differs from the righteousness given by perfect virtue in the behavior towards the other person, but is based on a notion of “what it belongs to someone” or “what someone deserves ” to which the distributive and retributive justice may be simultaneously subsumed.
Plato and Aristotle support the concept of a justice of the distribution, in which sharing and reward merge and are identified one to another by applying it on the society as a whole. Although law rules are imposed by state, that also takes cares of their application, and punishment of their violation, the imposing of these rules can only be done by the superior principle of justice, different than the social ideal which may be imposed at a certain moment on a given territory.
However, what is very important to emphasize is the necessity of committing to the legal system, not necessarily an individually expressed adhesion, but a general one, socialized, not for each standard but for the whole system, globally Above the positive law is an absolute justice, an unwritten law contained in any written law. “Law, as a divine gift offered to the man for himself and for the others, does not come from outside, but from the depths of his full of mystery being.” [23]
Natural Laws are the expression of the natural requirements, while the written, positive ones are created and applied by people. What is right is according to the natural order and is deducted from observing things, beings or human societies. The Aristotelian method involves the setting of a legal system designed to complement the natural law for each citadel.
At a certain time, “unfair” rules may occur in a legal system, perceived as such by some individuals. These rules of law which are part of the positive law should not be individually considered, but must be interpreted in connection with all current Romanian legal system as a whole. The foundation of the law should be analyzed, and this must be in agreement with justice.
However, it is possible that a certain rule of law be unfair in itself, and the judge, based on this provision, will be forced to do an injustice. In such a situation there is the need for something to be done in the change and reformation of this law, because enactment and enforcement can only have a single meaning: achieving Justice among people.
When an unjust law, the only solution is legitimate resistance to it, which could be done in two stages: a first stage of passive resistance (subject recipient is not subject to the law of) and a second stage in which the subject is defending against measures taken by the authorities against him under the law unjust. Extreme situation is that of insurrection, which is a right of the people oppressed by laws contrary to justice. If there is an unjust law, the only solution is the legitimate resistance to it, which could be done in two stages: a first stage of passive resistance (the subject recipient of the law does not obey the law) and a second stage in which the subject defends against measures taken by the authorities under the unjust law. Extreme situation is that of insurrection, which is a right of the oppressed people by laws that are opposing to justice.
Conclusions
Justice appears as valid even where the system disregards the law in force, and we can encounter what John Locke called “the fight against the written laws on behalf of the unwritten laws However, this fight must be well determined because more than once the idea of Justice was abusively used by the “revolutionary spirit” to cover unilateral illegal interests and passions.
Justice is a legal value in connection with the idea of ”giving each one what he or she deserves”, thereby protecting the society, the connections among people and recognizing its human qualities to the individual, its dignity in relation to the others”. [24]. “Justice is indestructible connected to Law which, among other values such as freedom, truth and public good confers a meaning to it. Indeed, the rule of law is established on behalf of one or more values. The Law does not mechanically take the facts, by referring to values, ultimately being a command in the name of justice of a historic time”.[25]
Expressing a profession of faith, the eminent lawyer Eugen Speranţia showed: “Justice comes from outside, from above; it is of the same nature and origin as the Verb that created the World. Love is the basic force of Justice. Therefore, instead of the balance used in stores, the most speakable emblem of justice would be a winged heart flying on the starry sky”. [26]
References:
- Hegel, Philosophy of Law Principles, IRI Publishing House, Bucharest, 1997;
- Popa, N., General Theory of Law, C. H. Beck Publishing House, Bucharest, 2012;
- Meylan, J.-H., Essai pour une systemique du droit, Schulthess Medias Juridiques S.A. Genève-Zurich-Bâle, 2010;
- Supiot, A., Homo Juridicus. Essay on anthropological function of the right, Rosetti Educațional Publishing House, Bucharest, 2011;
- Popa, N., General Theory of Law, C. H. Beck Publishing House, Bucharest, 2008;
- Ihering, von, R., The Struggle for Law, C. H. Beck Publishing House, Bucharest, 2002;
- Craiovan, I., Treaty of General Theory of Law, Universul Juridic Publishing House, Bucharest, 2009;
- Djuvara, M., Essays of philosophy of Law, Trei Publishing House, Bucharest, 1997;
- Irineu Ion Popa, Moral substance of the right, Universul Juridic Publishing House, Bucureşti, 2009;
- Popa, N., Dogaru, I., Dănişor, Gh., Dănişor, D.C., Philosophy of Law. Major current, AllBeck Publishing House, Bucharest, 2010;
- Vecchio, G., del, Lessons on the Law’s Philosophy, Europa Nova Publishing House, Bucharest, 1994;
- Craiovan, I., Istrate, M., Hypostasis of Justice, Universul Juridic Publishing House, București, 2012;
- Speranția, E., Introduction to Philosophy of Law, Tipografia Cluj Publishing House, 1946.
[1] Hegel, Philosophy ofLlaw Principles, IRI Publishing House, Bucharest, 1997;
[2] Popa, N., General Theory of Law, C. H. Beck Publishing House, Bucharest, 2012, p. 39;
[3] Apud Meylan, J.-H., Essai pour une systemique du droit, Schulthess Medias Juridiques S.A. Genève-Zurich-Bâle, 2010;
4 Idem:
5 Godelier, M., Au fondement des societes humaines, ce que nous apprend d`anthropologie, Paris, 2007 citat în Meylan, J.-H., Essai pour une systemique du droit, Schulthess Medias Juridiques S.A. Genève-Zurich-Bâle, 2010, pp. 32-33;
6 Meylan, J.-H., [3], pp. 33-34;
7 Legendre, P., De la Société comme Texte. Linéaments d’une anthropologie dogmatique, Fayard, 2001, în Supiot, A., Homo Juridicus. Essay on anthropological function of the right, Rosetti Educațional Publishing House, Bucharest, 2011, p. 11;
[8] Popa, N., [2], p. 35;
[9] Popa, N., [2], p. 41;
[10] Popa, N., [2], p. 41;
[11] Popa, N., General Theory of Law, C. H. Beck Publishing House, Bucharest, 2008, p. 51;
[12] Ihering, von, R., The Struggle for Law, C. H. Beck Publishing House, Bucharest, 2002, p. 2;
[13] Craiovan, I., Treaty of General Theory of Law, Universul Juridic Publishing House, Bucharest, 2009, p. 499;
[14] Ihring, von, R., [12], p. 2;
[15] Djuvara, M., Essays of philosophy of Law, Trei Publishing House, Bucharest, 1997;
[16] Craiovan, I., [13], p. 501;
[17] Plato, Republic;
[18] Irineu Ion Popa, Moral substance of the right, Universul Juridic Publishing House, Bucureşti, 2009, p. 7
[19] Aristotle, Politics, quoted in Popa, N., Dogaru, I., Dănişor, Gh., Dănişor, D.C., Philosophy of Law. Major
current, AllBeck Publishing House, Bucharest, 2010, pp. 59-60;
[20] Aristotle, [19], p. 60;
[21] Vecchio, G., del, Lessons on the Law’s Philosophy, Europa Nova Publishing House, Bucharest, 1994, p. 56;
[22] Vecchio, G., del, [21], p. 57;
[23] Popa, I., I., [18], p. 7;
[24] Craiovan, I., Istrate, M., Hypostasis of Justice, Universul Juridic Publishing House, București, 2012, p. 155;
[25] Idem, p. 156;[26] Speranția, E., Introduction to Philosophy of Law, Tipografia Cluj Publishing House, 1946, p. 426;