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THE STRUCTURE OF A 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 for. .
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. We
emphasis that the command can never be undetermined.
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".



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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 rule's 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 rule's
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, the nullity of consent or the nullity of mamage;
- relatively determined - i~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-juridical 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.

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THE CLASSIFICATION OF THE LEGAL RULES

Due to the fact that a lot of legal rules apply within a specific moment in
time and in a particular state, it is important to find out which are the main
features of each category of legal provisions. Thus, different criteria are used to
classify the legal rules, as follows:
A) According to the object under settlement, there are as many legal
rules as branches of law are. Thus, there are constitutional legal rules,
administrative legal rules, civil legal rules, labor legal rules, etc.
B) According to their juridical force, the legal rules form a hierarchic
system similar to the hierarchy of the state bodies which adopt them. Thus, in the
top of this hierarchy there lie the state Constitution and other fundamental laws,
further, there are ordinary laws and decrees and then decisions and government
orders, and finally ministry's 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 behavior's 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"- Art.1313 civil code
b) The prohibitive rules are those which forbid a specific action, e.g. "the
judge is forbidden to pass general provisions through his rulings.


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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"- Art.490 civ.c ;
b) suppletive rules which allow the subject of law to choose his behavior
and if he does not do so the provision of law applies, e.g. "the agreements legally
concluded have the force of law between the contracting parties" - Art.969 civ.c.
D) According to the extend 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 spec.ial 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.

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THE INTERPRETATION OF LEGAL RULES

The interpretation of a legal rule is a logical and reasoning procedure to
understand and to explain the content and the real sense of a legal rule. The
interpretation is important in order to have an accurate application of the rule to a
real situation.
The interpretation is a mind's work that allows us to understand through
the words used by law the legislator's spirit, his ideas and his aims.
This is why the interpretation is a preliminary step for the application of
law. The interpretation's content deals with the human judgment to understand
the legislator's will. This will forms the core of the legal rule. The interpretation~s
goal is to collect by frame a real situation to the legal provisions in force and thus
to make a rightful application of law.

The interpretation's necessity
Firstly, we should emphasize that because of the wide variety of real
situations a legal rule, even if it is perfect, it cannot regard all of them.
Secondly, when we compare a real situation with the provisions of a legal
rule, the latter appears to be a static element versus a dynamic one. The real
situation is the dynamic element of our analysis because specific cases come out
in real life. That is why the legal rule cannot take into account all the actual and
possible situations.
Thirdly, because the legislator cannot describe in detail all the social
situations, he frequently uses general terms to protect the person's 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.



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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 J ustice) when they judge
concrete cases. From the juridical point of view a judicial judgment (decision or
verdict) is compulsory only between the litigation's parties. Therefore, this kind of
interpretation, the so-called casuistic interpretation, has compulsory power only
in the concrete case stand for judgment.
2. 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.
With the view to the result obtained through interpretation, the
interpretation can be:
A) literal interpretation;
B) extensive interpretation;
C) restrictive interpretation.

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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 law's text gives limitative enumeration, such as Art.655 civ.c. ;
- when law's text provides for exceptions, such as Art. 1909 civ.c. ;
- when law's text establishes presumptions, such as Art. 1200 civ.c.

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. .

The methods of interpretation
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.

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1) The grammatical interpretation
As we mentioned above, the legislator includes in a legal rule the state
will, and thus the rule's command has to be understood by the addressees,
subjects of law. The rule's 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 legislator's 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 sentence's morphology) as well as the content of the sentences and the
syntactical position of the word (the sentence's syntax). Thus:
- the words are used with the common meaning they have in the usual speech
because "law's 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.



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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, e.g. art.I par.2
commercial code which stipulates that "within trade the present law applies.
When it does not dispose, civil law applies".
A) 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.
B) 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: Art.374 civ.c. "the
creditors may exercise all the debtor's 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 his general
wording, "ubi lex distinquit, nec distingeure debemus":.. It means that, a geneeral
wording implies a general application.

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c) a legal rule has to be interpreted in order to apply not to remove his
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 Art.978 civ.c. settles that "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.
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 party's 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: Art.5 civ.c. stipulates that "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 law's words.

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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. Another example can be
Art.1895 civ.c. which regulates the conditions under which the ownership right
may be obtained through usucapion (the usucapion is a mode of acquiring the
ownership title by uninterrupted possession of the good).
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 rule's 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.
e) The argument of "analogy"
It means that, any time when law has the same reason, the same legal
rules' should apply. The judgment in this case is very simple, namely "the same
cause should determine the same result". Using this argument, it means to find
out a legal rule, which can apply to an unforeseen situation. The use of this
argument is very important because the court may add to law, which in fact is not
permitted.
For example Art.3 civ.c. settles that "The judge who will refuse to judge
because law does not regulate, or it is dark or less ample, may be found guilty of
denying the justice".

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The establishment of a legal rule

To settle a legal rule means to identify that legal provision which suits the
above-established 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).

The application of law
When we speak about the application of law we usually take into account
three main factors which limit our judgment. These factors are:
- a certain period of time when a particular law applies;
- a certain territory where a particular law applies (because law is always
national and there are as many different laws as states are);
- certain persons to whom law addresses its commands.
Grounded on all these three approaches, it is frequently included within
the application of law the following topics:
1. the application of law in time;
2. the application of law in space;
3. the application of law to people

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The application of law in time

As it was mentioned above, the living conditions within the society change
every day, they are, not the same throughout the years. It appears that,.in order
to have a correspondence between the state will and the society's reality, it is
necessary to modify the legal rules according to these changes. Indeed, it is
senseless to apply to day, in Romania, legal rules adopted hundreds years ago
for regulating the relationships between the king and his subjects. And thus, the
human behavior requested by state is different in time and the society's
development implies new legal rules.
Nevertheless, nobody can say when, as a certain moment in time, a
particular law has to be changed.
Thus, law will be changed whenever it is necessary, because its legal
provisions do not correspond any more to the society's development.
We should also emphasize that at a particular moment, a plurality of laws may
coexist in a certain space. For state's bodies or private persons it is very
important to know which laws apply at a particular moment, because the
applicable law will be the measure of their behavior. From this point of view, the
principle is very simple "at each moment in time, law which is in force should be
applied", but law is not in force forever. .
Thus, the issue here is to ascertain the period of time when law is in force.
It means, to establish the moment when a law begins and ends its application. In
the respect of its application, law applies from the moment it enters into force
until it no longer applies (it ends its application, no matter in what way). It should
be also emphasized that there can be a difference, in time, between the moment
when law is adopted and the moment it enters into force. These moments are
frequently not the same, as it will be explained further.





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a) The law's entering into force
According to the provisions of Romanian Constitution, law can enter into
force only after the President of Romania enforced it. The enforcement of law is
the last stage of the so-called "decision-making process".
This process begins when the legislative draft of law, prepared by the ministers
or other state's bodies or political parties is forwarded to the Parliament in order
to be adopted.
At the Parliament level, the draft is discussed and approved, first of all, by
the specialized commissions of the Parliament, according to the law's field.
Secondly, the draft is subject to the Chambers (Deputies' Chamber and Senate)
discussions. At this moment, the draft may be amended and goes back to the
specialized commissions for a new approval or may be approved by each
Chamber.
If the form of the draft approved by each Chamber has the same content,
law is sent to the President for enforcement.
The President may enforce it or may reject it. In this latter case, law is sent
back to the Chambers for further discussions.
In fact, the enforcement of law means that the President signs the draft of law as
it was approved by Chambers and orders its publication. Thus, theoretically, law
enters into force on the date of its publication in the Official Monitor of Romania
(the Official Monitor of Romania is the only means of legal publicity in Romania)
or on a further date expressly mentioned within the content of law.
b) The end of the application of law
The application of law usually ends towards its abrogation (or repeal). We
may have different kinds of abrogation, but the result is always the same: law
ends its application.
Firstly, according to the way the abrogation occurs, it can be express or
implicit (tacit) abrogation. The abrogation is express when new law expressly
specifies that the application of a specific law comes to an end. The express
abrogation, on the other hand, can be either direct or indirect.

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The direct express abrogation occurs when new law mentions which laws
or the articles of a particular law are repealed (abrogated).
The indirect express abrogation occurs when new law specifies that "all
legal rules contrary to that new law are repealed".
The implicit abrogation occurs whenever a new law, without mentioning
what old law is abrogated, has incompatible provisions with the latter.
Secondly, taking into account its extend, the abrogation is total or partial.
The application of law in space
Speaking about where law has to apply, we should remember that a
special state body empowered with this task always adopts law. Thus, the
legislative power of the state delegated to different state bodies express the state
sovereign right to impose certain rules of behavior. But, because each state has
its own national sovereignty, and has to observe the sovereignty of other states,
its laws cannot apply beyond its national territory.
Usually, the appljcation of law in space is governed by the principle of
territoriality. By the idiom "territory of the state" we understand "the area of lands
and waters contained between the borders of the state including the afferent air
space, as well as the continental plateau of the sea and the territorial sea (12
miles)". .
The application of law to people
As it was mentioned above, the beneficiaries of legal rules are natural or
legal persons. It means that law applies equally to all persons regardless their
sex, nationality or race. In other words, it means that people are equal in front of
law. However, that does not mean that law applies in the same way and with
same limits to all persons. From this pointy of view, there are laws with general
application (such as Constitution or civil code) and laws which apply only to
specific persons (e.g. Law no.24/1921 regarding the associations and
foundations or Law no.31l1990 republished, regarding commercial companies).
In addition, we emphasize that the application of law is always national because,
as it was mentioned above, law applies only on the national territory.