Law and Morals. Prolegomena (I)

• Author: Nicolae V. Dura
• Position: Professor, PhD, Vice-rector of the 'Ovidius' University of Constanta, Romania, 1 University Alley (Campus, Building A)
• Pages: 158-173

ACTA UNIVERSITAT

158

Abstract:

In the pages of t

between what is just and in j

but also about the relation be

historical process of the eme

Law has evolved step by ste

the conclusion that the positi

nature. In fact, from an onto

since the notions of “righteou

the theory of juridical posit

Morals since the state is th

philosophical and from a ju

philosophers and jurists of

adequately and, ipso facto,

international and European le

Keywords:

juridical norms;

A work entitled „Testam

   

„knowledge”, as only t

acquire „wisdom” (

which – in its turn –

is n

this sense, in the case

gained by a painstaking

that the human spirit ha

1

Professor, PhD, Vice-

rector

(Campus, Building A), t

el

nicolaedi

dimos@yahoo.com.

2

Le Testament en Galilée

de

ATIS DANUBIUS

Law and Morals. Prolegomena

Nicolae V. DUR

1

f this study we have emphasized the relation between Law

in just, talkin

g thus not only about the nature of the Law and o

between the juridical no rms and the moral principles. An eva

mergence of Law and Morals

– be it brief –

has enabled us to n

step from th e Moral norms and from the customs of a moral

sitive juridical norms should also express, in their content, valu

ntological poi

nt of view, between Law and Morals could not

eousness” and of “justice” themselves are categories of Morals

sitivism, accordi ng to which the rule o f Law can exist in th

the only source of Law, has no credibility both from a h

juridical point of view.

Finally, the increasingly higher in

of our time to perceive and exp

ress the content of the na

o, the relation between this one and Morals, was also deter

n legislation regarding the human fundamental rights and libert

s;

moral principles; human rights

tamentum Domini”

–   !!!-!∀-



    

-     # ∃ %

&∋()

y the ones who shall pursue „the justice” (k

)

2

. Therefore, „wisdom” is condition

ed by

is not possible without „gnosis” (science) and „know

se of Law, too, these „gnosis” and ”knowledge” c

ing study of this field, and, ipso facto, of the jurid

ic

has created from the antiquity up to our days.

tor of the “Ovidius” University of Constanta, Romania

, 1

Un

ele

phone: +40241-551773, +40241-511000/326.

Correspon

m.

de Notre

–

Seigneur Jesus Chris/The testament in our Galilee,

AUDJ, vol. VII, no.

2

No. 2/2011

ena (I)

aw and Morals,

d of the M orals,

valuation of the

to no

tice that the

al nature, hence

alues of a moral

ot be a divorce,

rals. That is why

the absenc

e of

a historical and

r interest of the

nature of Law

termined by the

erties.

 

–

&∋()

) and in

 ) shall

by „justice”,

nowledge”. In

” can only be

ical Sciences

Universit

y Alley

ponding author:

e,

1982, p. 149.

2

, pp. 158-173

JURIDICA

159

During the antiquity numerous law systems have emerged (the Babilonian, the

Egyptian, the Jewish, the Chinese one etc.), but none of them had succeeded in

creating a unitary system of concepts that would have enabled the expression of a

juridical thinking and language different from the common language.

Consequently, „the juridical thinking of the peoples of the antiquity did not create

their own juridical concepts and it was not able to approach the systematic and

precise elaborations of the Roman Law, moreover, it could not exert any influence

on the general evolution of the juridical ideas and institutions. In regard to all the

systems of law in the antiquity, the Roman Law can be distinguished by the fact

that it has created the basic elements of the juridical alphabet, by means of which

the norms of law acquire an identity different from that of other social norms”.

(Molcu, 2002, p. 11)

However, the juridical thinking and expression owes to the Roman Law not only its

own identity in relation to other social-humanistic sciences, but also the genesis of

some present juridical concepts (for example, the concept of contractual obligation,

of delictual obligation, the contract etc.), by means of which the juridical thinking

of the society of our days can be expressed and due to which we can talk about a

distinction between „sein” (what exists) and „sollen” (what should be). In this

sense, we must see if, as regards the meaning of the two realities, „sein” and

„sollen”, we are only dealing with an indicative or with an imperative of a

preeminently juridical nature, devoid of any religious-moral content.

„Taking a look at the historical process of the emergence of law, we shall notice

that law has evolved step by step from the moral norms and customs. In this sense

– a distinguished theoretician of law specified – the morals precede the law” (Popa,

1998, p. 142). The same theoretician evinced the fact that the relation between law

and morals „raises the problem of establishing the criteria on the basis of which a

certain relation passes from the moral regulation to a juridical one” (Popa, 1998,

p. 142). How this passage is done and what consequences or effects this has was

not yet specified to us – in an explicit manner – by the specialized literature, given

the fact that some theoreticians, who are usually enslaved to their own ideological

orientation, do not usually have a right image of the content of moral norms, which

are always conditioned by the relation between the Divinity and the Man. At last,

we should say that any image that distorts the relation between Law and Morals

leads to the fact that both the fundaments of the moral legitimacy of the positive

juridical regulations and the criterion regarding the manner in which the human