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Legal Rule 1
Legal Rule 1
Legal Rule
Each legal rule has an internal structure named the formal-logical structure and an
external structure called the technical-juridical structure.
The formal-logical structure of a legal rule
This structure shows the internal parts of a legal rule and their aims. Thus, any legal
rule, usually, has three parts or elements of structure, as follows:
a) the hypothesis. It is the part of a legal rule that describes the circumstances
when a certain behavior is requested. The hypothesis can be determined when the
circumstances are very detailed or indefinite when the circumstances are generally
provided.
b) the provision or command. The command is the substance, the core of the legal
rule. It prescribes what the person, the subject of law shall do under the
circumstances provided for by the hypothesis.
Taking into account how precise the behavior provided for by legal rule is, the
command might be absolutely determined or relatively determined.
The command is absolutely determined, for example, when legal rule refers to an
action or to a non-action, such as: the merchants should be incorporated, the
seller is obliged to warrant the buyer, the judge is forbidden to
The command is relatively determined when legal rule allows the subject of the law
to choose his own behavior, such as: the owner may take any appropriate
decisions.
c) the sanction It is a part of a legal rule that specifies whose are the
consequences in case of the non-observance of the rules command.
It means that this part of the internal structure of a legal rule specifies the penalties
the judge can take against those who do not comply with the rules command.
According to the determination rank the penalty can be:
- absolutely determined in this case the judge cannot modify it. For example the
nullity of a contract;
- relatively determined in this case, law provides for a minimum and a maximum
limit of the penalty and the judge might choose the concrete penalty in accordance
with the gravity degree of the fact, the perpetrator and his relapse into crime status.
E.g. the fine is from 100.000 up to 5.000.000 lei, the penalty is prison from 2 up to
5 years;
- alternative penalties in this case the judge might choose between 2 penalties,
such as prison or criminal fine;
- cumulated penalties in this case law provides for two or many penalties for a
specific crime, such as prison and withdrawal of rights (e.g. loss of parental authority
or loss of associate right).
It should be mentioned that it is not necessary for a legal rule to have in the same
article of law all these three parts together. Frequently, the hypothesis or the
sanction of a legal rule can be included in another normative act, or in another
article, but the legal rule cannot ever be deprived of its command.
The technical-legal structure of a legal rule
Legal rules are usually included into normative acts, the so-called laws, governmental
decisions, ministry orders, and so on.
Any normative act is divided into paragraphs, articles, sections, chapters, titles, parts
or books.
The main element of this structure is the article. As it was mentioned above, it is not
necessary that all the three elements of structure of a legal rule belong to the same
article. More frequently an article can include many legal rules or a legal rule may be
included in many articles.
are ordinary laws and decrees and then decisions and government orders, and finally
ministrys orders and instructions.
This hierarchy has a great importance when there are, and usually this is the case,
many legal rules adopted by different state bodies for the same field of social
behavior. In this case, a well-known principle is used to solve any possible confusion:
the legal rules endorsed by the superior state body have priority to apply.
C) According to the behaviors character requested, the legal rules can be
classified as imperative rules and disposal rules.
1) The imperative rules are those which require a specific action (imposed rules)
and those which forbid a specific action (prohibitive rules). We emphasize that it is
not possible to depart from imperative legal provisions and law forbids any contrary
agreements as well as any restrictive interpretation.
a) The imposed rules are those which expressly provide for the obligation to do
something, e.g. the seller has two main obligations, to deliver the goods and to be
responsible for it
b) The prohibitive rules are those which forbid a specific action, e.g. the judge is
forbidden to pass general provisions through his rulings.
2) The disposal rules are those which allow the subjects of law to choose their
behavior. These rules can be:
a) permissive rules which allow the subjects of law to choose from the options
provided for that one which fits better to their interest, e.g. the landowner may build
or till on his land anything he wants to.
b) suppletive rules which allow the subjects of law to choose their behavior and if
they do not, the provision of law applies, e.g. the agreements legally concluded
have the force of law between the contracting parties
D) According to the extent of their application, legal rules are general rules,
special rules or exception rules.
1) The general rules apply either within the entire system of law or within one of its
branch, as being the greatest comprehensive rules;
2) The special rules have a limited sphere of application, according to the specific
criterion or the qualities of people. It should be noted that there is a close connection
between general and special rules. Thus, sometimes a rule can be called general
rule as compared to a second rule, or special rule as compared to a third one. This
classification appears to be very important when two legal rules have equal vocation
to apply. In this case, always the special rule has priority to apply.
3) The exception rules allow the subject of law or the judge to depart from a
general or a special rule and thus their interpretation and application is very strict.
E) According to the technique used for their drawing up, the legal rules can be
classified as follows:
1) Complete rules which have all the three elements of their formal-logical
structure;
2) Reference rules which do not have all the elements of their formal-logical
structure and for the missing parts they send to another normative act;
3) Blank rules which also do not have all the elements of their structure, but the
missing elements will be completed in the future through another normative act.
Thirdly, because the legislator cannot describe in detail all the social situations, he
frequently uses general terms to protect the persons rights and that is why the
interpretation is more than necessary.
Fourthly, the interpretation is necessary each time when between different normative
acts or different prescriptions of the same law contradictions arise.
Finally, the interpretation is always necessary because the words may have, from the
legal point of view, other meanings than those of current speech.
The forms of interpretation
According to its juridical force the interpretation can be:
1. official interpretation;
2. non-official interpretation.
1. The official interpretation is given by the state organ, which has this ability
under law. Actually, the Parliament, the government and the courts of law have this
competence. The official interpretation, on the other hand, can be:
A) legal or authentic interpretation. The legislative state body, which enacts the
legal rule (parliament, government or ministries), gives this form of interpretation. It
should be mentioned that the interpretation rule has the same juridical force as an
imperative rule has;
B) judicial interpretation. This is given by the judicial organs (courts of law,
tribunals, courts of appeal or the Supreme Court of Justice) when they judge concrete
cases. From the juridical point of view a judicial judgment (decision or verdict) is
compulsory only between the litigations parties. Therefore, this kind of
interpretation, the so-called casuistic interpretation, has compulsory power only in
the concrete case stand for judgment.
2. Non-official interpretation. Persons who do not act as representatives of a state
body give the official interpretation. As far as its legal force is concerned, this
interpretation does not bind the judges, but may help them towards a unitary
application of law.
At the same time, the so-called lex ferenda proposals given through the nonofficial
interpretation may support the improvement of law.
According to the result obtained through interpretation, the interpretation can
be:
A) literal interpretation;
B) extensive interpretation;
C) restrictive interpretation.
A) The literal interpretation, the so-called interpretation to the letter of law,
means that the content of law text and the practical issued solution are identical.
B) The extensive interpretation, the so-called interpretation to the spirit of law,
means that by comparing the content of a legal text and the practical issued solution,
it appears that the legal rule covers much more cases than the legal text shows. We
emphasize that this kind of interpretation cannot be used:
- when laws text gives limitative enumeration;
- when laws text provides for exceptions;
- when laws text establishes presumptions;
C) The restrictive interpretation, the so-called interpretation to support law,
means that comparing the content of the legal text to the practical issued solution, it
appears that the legal text is more broadly formulated than the real intention of the
legislator was.
According to the methods used:
With the view to its interpretation, law uses different means than other sciences.
These means are the so-called methods of interpretation. The methods of
interpretation are the following:
1) grammatical interpretation;
2) systematical interpretation;
3) historical interpretation;
4) logical interpretation.
It should be noted that, as far as the result of interpretation is concerned, there are
frequently used different methods of interpretation in connection to one another.
There is not any hierarchy concerning these methods either.
1) The grammatical interpretation
As we mentioned above, the legislator includes in a legal rule the state will, and thus
the rules command has to be understood by the addressees, subjects of law. The
rules command is expressed by words linked together in clauses and sentences.
The words used to form the content of a legal rule should belong to common speech,
should be well known by the addressees and should help them to understand the
legislators will.
That is why the legal rule has to be clear, accurate and precise. It also has to allow a
simple and common understanding and to be written in a concise style, without
ambiguities. But, very often, the text of a legal rule does not fit these requirements.
Therefore, using the morphological and syntactical analysis, we can interpret the
legal text according to grammar rules.
The grammar interpretation takes into account the meaning of the words (the
sentences morphology) as well as the content of the sentences and the syntactical
position of the word (the sentences syntax). Thus:
- the words are used with the common meaning they have in the usual speech
because laws language should be the addressees language. It should be
emphasized that the meaning of a specific word is the dictionary meaning and not
the ordinary, local meaning;
- sometimes, the meaning of the word may be specific for the juridical field, even if
the word is common, e.g.: to give, to pay, payment, movable, Thus, to give
commonly means to hand over something, while from legal point of view it means to
transmit a real right as the ownership right. In a similar way, to pay usually means
to give an amount of money, while from legal point of view it means to execute an
obligation (having as object either an amount of money or the handing over of
goods); .
- when it is necessary, law itself explains the meaning of specific words, such as :
living place, floor space, legal person, etc.
2) The systematic interpretation
According to this method, the interpretation of law has to take into consideration the
existing connection between different legal rules or different normative acts referring
to the same object under settlement.
3) The historical interpretation
According to this method of interpretation, in order to understand the content of legal
rules, the interpreter should analyze the concrete conditions which have been
determined for the endorsement of law, such as: explanatory notes, the
parliamentary debates within the Senate or the Deputies Chamber, etc.
4) The logical interpretation
In order to explain the meaning of a legal rule, this method of interpretation uses the
rules of formal logic and its system of reasons.
The best known logical rules of interpretation are the following:
a) the exception has a very strict interpretation. Theoretically, an exception rule
applies only under a specific hypothesis it cannot be extended to other cases with
different conditions.
Using this rule, we can settle the relation between general and special laws. Thus,
special law (lex specialis) is the exception, and general law (lex generalis) is the rule.
Special law always derogates from general law, but general law cannot ever derogate
from special law.
For example: the creditors may exercise all the debtors rights or actions, except
those which are exclusively personal, such as divorce, fatherhood, etc.
b) nobody can limit the application of a legal rule because its general wording, ubi
lex distinquit, nec distingeure debemus: It means that, a general wording implies a
general application.
c) a legal rule has to be interpreted in order to apply not to remove its application. It
means that, the purpose of interpretation is to support the application of law. In other
words, from the logical point of view, law was adopted in order to produce a juridical
effect. If that effect cannot clearly occur, the adoption of law is senseless.
For example: when a contract clause has two meanings, it will be interpreted in
order to have an effect, not in the sense it cannot have any effect. Another example:
the future litigation between parties will be solved according to law it means that,
no matter who is called to judge the trial (litigation), court of law or arbitration
tribunal, it should solve the case according to the existing legal provisions.
d) Besides these logical rules, in order to interpret legal rules, the logic interpretation
uses logical arguments. The most frequently logical arguments are:
1) The argument per a contrario. This argument applies the rule of a third partys
exclusion, meaning that A cannot be A and non-A at the same time. In this respect,
the Latin said tertium non datur or qui dicit de uno, negat de altero, qui de uno
negat de altero dicit. In other words, anytime when a specific command is provided
for by the legal rule, the opposite command is denied. For example: it cannot depart
from law of public regime towards contracts or specific agreements.
Using the above-mentioned argument, it means, per a contrario, that we can depart
from laws that are not related to public regime.
Nevertheless, it should be mentioned that this argument has a relative value because
the silence of the law is not always equal to the opposite command.
2) The argument a fortiori rationae. This argument is used in order to extend the
application of a legal rule to an unknown case, which has similar conditions with the
case provided for by the legal rule or belongs to the same category of cases. In this
situation, in spite of the fact that there is no direct solution for the case under the
application of a legal rule, the judge should take into consideration the spirit of law
and not the laws words.
3) The argument a majori ad minus, or in other words, qui potest plus, potest
minus. This argument means that those who can do more can do less. For example,
the Constitution guarantees the fundamental citizens rights and thus, the labor
rights are also guaranteed by Constitution.
d) The argument of reductio ad absurdum. This argument is based on the fact that
among the different meanings of a legal rule there should be used that one which
suits better to the rules aim. For example, commercial law does not have compulsory
provisions regarding the minimum amount of the register capital for some private
companies as sleeping partnerships or general partnerships. That does not mean that
this kind of companies do not have any capital requirements.
Indeed, according to the provisions of commercial law, any company, no matter its
form, must have a capital in order to fulfill its commercial activities. In this case,
using the argument ad absurdum, we should understand that sleeping partnerships
and general partnerships companies should have a certain capital, but its amount is
not imposed by law and thus may vary according to the partners will and their
financial possibilities.
The establishment of a legal rule
To settle a legal rule means to identify that legal provision which suits the aboveestablished reality and to select that rule which should apply to the present case. The
difficult process of framing a legal rule to a real situation is named juridical
qualification. An application act based on an accurate judicial qualification is named
legal act. This is why the legality is the second condition of the validity of an
application act.
As soon as the solidity and the legality of the act are pointed out, the application act
will be issued according to the condition of shape and the content provided for by
law. The conditions of shape and content of a legal act are studied by civil procedural
law. The application act cannot be mixed up either with normative acts (which
express the state will) or with acts (which express a private will).
The application act must be the result of a logic and scientific process made by the
judge. On the ground of the proofs presented to him, the judge has to make a correct
application of those legal rules appropriate to the case and to issue a legal and
justified solution (judgment).