Legal classification and judicial syllogism

• Author: Mioara-Ketty Guiu
• Position: Associate scientific researcher of the 'Acad. Andrei Radulescu' Legal Research Institute of the Romanian Academy, mioarakettyguiu@yahoo.com.
• Pages: 139-147

Legal classification and judicial syllogism

Associate scientific researcher Mioara-Ketty GUIU1

Abstract

Particularly in criminal matters, the judicial errors register an alarming increase,

so much so that it not on ly affects the destiny of the wrongfully sentenced or the groups that

they belong to, but also the destiny of the entire society. A cause of this situation resides, from

what it seems, in the lack of thorough legal studies with regards to the logical operations

which should stand at the base of the dec ision that an actual act does constitute a certain

offence, with a well specified “cla ssification” or “qualification”. The present paper tries to

actuate debates o n the matter, which has been wrongfully neglected. With this purpose, the

author begins from a rather old idea, but insufficiently known, and that is that any court

sentence is the result of two types of judicial syllogisms: qualificative and decisional.

Elaborating this idea, the author observes a series of other aspects, such as: the fact that, in

criminal matters, the qualificative syllogisms serve to establish the legal classification, while

the decisiona l syllogisms serve to establish the senten ce; the fact that, in criminal

qualificative syllogisms, the subject is always the actual act, and the predicate is a criminal

concept (the notion of an offence); the fact that the legal classification is not an “operation”,

as is claimed by many authors, but a conclusion, specifically to a qualificative syllogism etc.

Keywords: actual act, act-species, concept, syllogism, judicial error.

JEL Classification: K10, K14

1. Preliminary explanations

The expression “legal classification” is a common in the Romanian

jurisprudence and it appears in several criminal procedure texts in force (art. 386 of

the Criminal Procedure Code in Romania, art. 403 of the Criminal Procedure Code

in Romania etc.)

However, the law does not define this expression, and the doctrine has rarely

and hurriedly approached it, and as such its meaning and importance have remained

somewhat uncertain.

According to the legal dictionary 2 , this expression designates the

identification operation within an actual committed act, of the elements pre-

established by a legal provision in force as setting forth the character of offence for

one person’s behavior – from which we can conclude, in a quite difficult manner,

that “legal classification” is the operation of identifying the acts which constitute

offences.

1 Mioara-Ketty Guiu - associate scientific researcher of the “Acad. Andrei Radulescu” Legal Research

Institute of the Romanian Academy, mioarakettyguiu@yahoo.com.

2 Legal classification (legal dictionary) – document accessible on-line at https://legeaz.net/dictionar-

juridic/incadrare-juridica (accessed on 20.01.2018).