New tendencies in public administration development

Author:Ph.D. Ioana Cristina Vida
Pages:167-174
SUMMARY

The work aims to start from the premise that the social constraint are the basis of the elaboration of legal norms. A consequence and, at the same time, a goal of legal norms is indeed creating social order. The direct addressee is the human existence and defending it through legal norms. Also, the paper analyzes the ideal human and the contribution of legal norms to its realization. Last but not least, we will show the necessary aspects that are imposed for the sanitation of social life by diurnal imperfections, caused by the breach of law, legislative antinomy, and discriminations and the reinstatement in rights. We will try to reach the conclusion that happiness represents the esplanade of all human desires and that all the people deserve to have the right to be happy.

 
CONTENT
Determination of Human Conduct in the Light of Legal Norms 167
SECTION IV: NEW TENDENCIES IN PUBLIC
ADMINISTRATION DEVELOPMENT
Determination of Human Conduct in the Light of Legal Norms
Ph.D. Ioana Cristina VIDA1
ABSTRACT
The work aims to start from the premise that the social constraint are the basis of the elaboration
of legal norms. A consequence and, at the same time, a goal of legal norms is indeed creating social
order. The direct addressee is the human existence and defending it through legal norms. Also, the
paper analyzes the ideal human and the contribution of legal norms to its realization. Last but not
least, we will show the necessary aspects that are imposed for the sanitation of social life by diurnal
imperfections, caused by the breach of law, legislative antinomy, and discriminations and the
reinstatement in rights. We will try to reach the conclusion that happiness represents the esplanade
of all human desires and that all the people deserve to have the right to be happy.
Keywords: the right to happiness, rights and freedoms, the elimination of inequities and
discrimination, reinstatement in rights
The State lives through the society, the society „exists” through its citizens and
the citizens „are born” only due to the fact that their predecessors have acquired
rights and freedoms throughout history. Human rights and freedoms, as we know
them today, were not always been recognized. In order to be able to discuss
nowadays about „generations of rights”, many different types/typologies of wars
were led. To discuss in the XXIst century about primordial rights and try to record
them as such seems to be redundant given that companies focus on innovation
developed by bioethics, green energy or medical engineering. However, on the
world stage it emerged a movement that wants to be recognized from the legal
point of view the right to happiness. According to the Explanatory Dictionary of
the Romanian Language, happiness is a „state of intense and full emotional
gratitude”. Therefore, happiness is an aspiration and human fulfillment due to
objective factors related to the material conditions of human existence and subjective
factors stemmed from the way the human mind perceives accomplishments,
1 ioana_vida@yahoo.com
Law Review vol. III, Special issue 2017, pp. 167-174
168 IOANA CRISTINA VIDA
degree of realization of its aspirations and determine for each man that state of
bliss that generates positive effects of social life on his own being.
In legal terms, happiness is inextricably linked with the realization of the
rights, freedoms and fundamental duties, the fulfillment of the aspirations which
they advertise on the field of human existence.
The issue of the existence and recognition of the right to happiness itself is not
relatively new. If the doctrine discusses the right to happiness, in pre-federal
constitutions of the American states there is enshrined the right of everyone to seek
their own happiness, while on the Asian continent the happiness is a notorious
country brand.
First, in the recent doctrine, represented by William F. Lawhead (2011), it is
considered that the pursuit of happiness is part of the typology of a priori or obvious
rights („the idea of a priori or self-evident human rights”). Secondly, in the opinion of
Cesare Beccaria (2007), happiness is a premise for the social organization and
understanding „(...) laws, which however are or should be pacts concluded between free
people, not in general but a instrument of several passions, or arose after a fortuitous and
transient needs; not at all dictated by an impartial student of human nature to lean on the
actions of a crowd of people and subordinate them, focusing them following terms: happiness
maximum divided as much”. We note that the two definitions have an integrator effect
in the sense that the man is born free and, from the start, he has the right to be
happy; these two interdependent and inalienable rights of human society provides
the premises of the functionality of the human society.
According to John Rawls (2012), „a person is happy when it is more or less about to
execute a rational plan of life, set conditions (more or less) favorable and safe enough that his
intentions may be realized”. Achieving happiness, Rawls says, „depends on the
circumstances and luck”. From this point of view, happiness is characterized as being
speculative in the sense that it depends on the free will and, once achieved, can
positively influence the actions taken. Beyond its fiery nature, the state of happiness
can pragmatically influence the individual, in the sense that it foreshadows a long-term
plan, designed to meet the targets.
In another approach, John Locke (1999) emphasizes the idea of „property”,
which is an individual's personal right and guarantees him not only wealth, but
also happiness. Thus, the property in an exhaustive domain, „lies both in the center
of things and outside them, marking not only a personal territory but also foreshadowing
an identity”. Regarding the idea of identity, John Locke believes that the property is
a sum of all interests and rights which man cherishes and wishes to safeguard in
an organized political community. On the conceptualization of happiness through
the relationship of interdependence between property and human identity created
we appreciate that they really are related because the individual identifies with his
assets only to the extent of belonging to a community. Therefore, article 59 of the
Romanian Civil Code establishes that the individual's identity assumed „the right
to have a name, right to have and to own a home, also a residence as well as a civil
Determination of Human Conduct in the Light of Legal Norms 169
status acquired under the law”. Thus, we agree with Francesco Viola`s (1995)
opinion „acquiring human identity that takes place with our specific life”.
Last, but not least, in Isaiah Berlin`s (2010) conception the freedom implies the
absence of obstacles to the fulfillment of desires. In other words, as long as man is
free from prejudice and discrimination, freed from the tutelage and inequities
when the pursuit of happiness is guaranteed to satisfy all needs and assimilated
his needs and desires.
At the level of the political discourse it was officially recognized that happiness
is the engine that motivates every individual. The right to seek happiness is
recognized since 1776 by the adoption of the Declaration of Independence of the
United States of America. The Declaration of Independence proclaims the individual's
right to seek happiness, along with the right to life and freedom. According to
William Pencak (1990), the right to seek happiness as perceived in the Declaration of
Independence merely stated to proclaim the truth self-evident because people are equal
from birth. Therefore, it can be concluded that the right to happiness is inherent in all
the other inalienable rights of man and acquires its own existence in the same way
that the right to life, right to a name, the right to education, right to work, right to
security social etc. They are recognized without discrimination.
Taking inspiration from the Declaration of Independence, several countries in
the Americas have included in their constitutions a legal basis for the right to seek
happiness. In this regard, the Constitution of the State of Virginia enshrines
terminologically the concept of happiness and safety, in an interdependence
relationship, which reflects a political purpose.
American Constitutionalist practice took Greek philosophical concepts of
goodness, of truth, morals and welfare and placed them in the center of human
reality, regulating social relations thereunder.
On the Asian continent, the idea of happiness appeared in 1972 at the initiative
of the Fourth King of Bhutan, the Dragon King, Jigme Singye Wangchuck and had
as a goal to build a sustainable economy. Bhutan has proposed to raise at the rank
of a fundamental principle the Buddhist spiritual values and the country's gross
national income to be measured happiness not money. Within this approach, the
right to happiness may result in sustainable development, preservation and
promotion of cultural values, conservation of the environment and establishment
of good governance. We note that these guidelines are not foreign, but part of the
guidelines that guide public policy.
The right to happiness had preoccupied the constitutional contentious courts
and they interpreted happiness as another face of freedom.
The German Constitution emphasizes the dignity of the person (art. 1 para. (1)
of the German Constitution). According to the constitutional text „any individual
should not be turned into an object of interest of his own welfare”. Therefore, the German
Federal Constitutional Court in Karlsruhe in Case Elfes (Elfes 6 BVerfGE 1957 – 32)
had analyzed the relationship of travel restrictions for reasons of security, freedom
170 IOANA CRISTINA VIDA
of movement and the concept extended to constitutional order. In this case, the
Court rejected the applicant's request of extending the validity of the passport by
the relevant authority, without further motivation than the reference to the law on
passports. The Court began by specifying that the right to leave the country is not
part of the right to free movement. Despite this, he is not without constitutional
protection. it is part of the right to free development of personality. And the free
development of personality „implies not only the development inside the nucleus
of personality that makes a person human being endowed in terms of spiritual and
moral. It would be incomprehensible how could infringe development within this
zone core morals, rights of others or the constitutional order of a liberal democracy.
„According to the Court, it is these latter limitations mentioned denotes the fact
that the Basic Law envisages the right of appeal generally. Therefore, the Court
inferred from article 2 para. (1) of the German Constitution a general right of
freedom with limits set by the basic law. The Court concluded that when vital
areas are not protected fundamental rights specific individual affected by interference
state can invoke this provision, if it considers it appropriate that he breached
freedom. According to the reasoning of the Court, a law can be considered in line
with the constitutional order only if they comply with the "principles of the rule of
law and the welfare state social”. Dignity, the right to personal development, the
horizontal effect of fundamental rights and the role of two important concepts –
Rechtstaat active state (which requires the principle of proportionality) and Sozialstaat
(which requires the State to adopt measures to ensure the minimum level of
material existence, so people be part of a standard personal safety and to be able to
go there without being affected dignity) is for the Germans the inherent premises
for the pursuit of happiness.
Remembering the historical, political, doctrinal and jurisprudential references,
on July 19, 2011, the United Nations unanimously adopted Resolution no. 65/309
„Happiness: Towards a holistic approach of development”. Consequently, the right to
happiness was included on the agenda of global development. UN Resolution
no. 66/281 of June 28, 2012 and therefore March 20 was designated International
Day of Happiness.
In response to the UN`s Resolution of 2011, France founded the same year, the
International Institute of Happiness („l'Observatoire International du Bonheur”) in
order to become a true research institute in which collaborating researchers,
teachers & students & citizens work togheter to identify, analyze and promote
innovative impact that it has the concept of happiness to the world economy over
politics, the humanities and the social sciences. To date, this is the only institute of
its kind that promotes dynamic interactions between law and happiness.
Nor the European Union allowed outdone, and adopted the Declaration of
Pallini – right to happiness in 2014. The declaration was adopted in the context of the
European Union`s refugees crisis, in the context of state of conflict smoldering and
general unhappiness in Greece. The objective of this political statement is to convince
Determination of Human Conduct in the Light of Legal Norms 171
the European Parliament to adopt policies also from an humanist perspective and to
recognize the right to happiness in the EU as a fundamental human right. Not
recognizing the right to happiness equals to a breach of this natural right.
Thus, the movement of development through happiness is trying to influence
European public policy agenda to amend the legislative framework so happiness
„becomes” an index of government work program. Moreover, Tudor Panîru (2015)
analyzed the relationships that can be formed between law and happiness and the
consequences that may arise in law.
In the work and debate panels that focused on the „right to happiness
„appeared several questions arise: „All individuals deserve to be happy or deserve
to be fulfilled?” ,,Happiness is a byproduct of success or circumstance inherent free
access to all the rights enjoyed by individuals in a given society?” „Can happiness
be a fundamental human right?”
As far as we are concerned, we must distinguish between the right to happiness
and the right to seek happiness. In our opinion, the right to happiness could be
incorporated as such in an act, because happiness is its own, is largely subjective and
involves a search and a personal appreciation. In a totally different situation placed
the right to seek happiness, human potential capable of legal protection.
This distinction operates through the premises of the general theory of law.
First, social constraint is the foundation of developing legal norms. A consequence
and at the same time, an object of juridical norms is even creating social order. The
direct addressee is the human existence and its defense by legal standards. Corollary,
the human ideal must be surprised, dedicated, accomplished and guaranteed by the
legal rules. In this respect, the legislator has a duty to intervene consistently to
determine daily social life imperfections caused by violations of legislative antinomy,
inequities and discrimination and to reinstate persons not entitled. We conclude that
the real possibility of being happy is a providential right. Correlatively, the role of the
state is to strive to create a stable regulatory framework, predictable, guaranteeing
legal certainty.
Secondly, the stability of the legislative framework of state shows not only a
state of certainty for the public and for the private sector, but also a general feeling
positively associated with good physical and mental condition. The possibility to
be happy is the responsibility of the state, which ensures the basic requirements of
a decent life, the right to life, right to education, access to social and health services,
access to justice, labor rights, etc. Without social justice or human rights, there can
be no happiness. If a state can not guarantee that the individual have a decent
living when the state has failed.
Thirdly, the premise of consecration in a fundamental law of the right of the
individual to seek happiness lies in making the state to identify and interpret
spiritual essence of the individual being totaling trigger all actions and deeds and
thoughts that you can have the person carrying rights, freedoms and obligations.
172 IOANA CRISTINA VIDA
In this context the question arises whether the right to seek happiness can be
considered an imperative of society? This right may subsume all social norms? Ioan
Vida & Ioana Cristina Vida (2016) considers that social norms are rules of conduct
that require a certain behavior of individuals that makes up a given society for the
results of their actions to be so effective, desirable and positive. Therefore, the
answer to that question is that the right to seek happiness puts together under the
same dome all the rights that makes real the physical and psychological welfare of
the individual, including the activities and actions in the sphere of civic, political or
cultural behavior. Thus, social norms typology focuses on free individual who is
present in a society and a community predetermined and that he develops
relationships with other individuals and institutions managing public power. About
public power, Bertrand Russel (2002) states that it imposes coercive conduct that
emanates directly from predetermined legal rules. In this context, the question arises
to what extent the right to happiness, which is subjective, personal, atypical, cannot
be flagellated in the context of the legal rule expresses a general rule, impersonal,
typical and permanent, established or sanctioned by the public power (stately) to
ensure social order. With almost the same itinerary as legal, happiness orders and
regulates human behavior and human relationships. Happiness is the conduct is an
eternal commandment intrinsic human feeling. Happiness does not imply that such
liability. Only individuals blocking the possibility of being happy may involve civil,
criminal, administrative or disciplinary.
In Romania, citizen's rights and freedoms are guaranteed by the Constitution,
which establishes a legal framework within the search for personal happiness is
permitted. The question is whether the existing legal framework encourages the
pursuit of happiness for the mere perception of the individual that is treated
unequally attempt on his feeling of happiness. On the other hand, happiness is
personal and can not be weighed or estimated by a state institution, because this
would violate constitutional democracy.
Therefore, no great surprise to us that it was born a modern Western-style
movement that promotes the right to happiness as a model of socio-economic
development. The task falls in the lawyer`s and legislator`s obligation subsequently
to develop the concept of social progress, which is the core philosophy of happiness,
fundamental human values, cultural diversity and multiligvismul.
Therefore, the ,,cosmopolitan" character of human rights (Nicoleta Adriana
Odin, 2006), requires a high degree of adaptability and flexibility that should belong
to the legislature that would remove obstacles in the way of imminent preservation of
human dignity and the values that it entails. Therfore this universally right is
recognized as the corollary of a whole manifesto of rights and obligations whithin
human rights stands for the human existence.
In this democratic context the happiness clashes violent to the big family of
Islamic law as a result of migration exodus in recent years. In front of this Islamic
block „traditions, customs and beliefs”, Western legislature is forced to qualify the
Determination of Human Conduct in the Light of Legal Norms 173
legal norm in exceptional cases on access to refugees and displaced persons to an
independent life and reintegrate into a society not only peaceful but also with other
social meanings. Legislator challenge is to find a balance between the demands and
dangers facing society, since following the granting of asylum or what happens after
the primary recognition of the rights of refugees and displaced persons. The rights of
this vulnerable persons targeted are those that ensure autonomy and a development
perspective and the opportunity to benefit from social and economic rights.
Therefore, the legislature must maintain legal security and to establish a legislative
framework for both legal and physical protection, food and accommodation, access
to jobs and services such as healthcare and education and housing.
Refugees and displaced persons have left their countries of origin because of
violence, civil wars, hunger, water shortages, etc. Basically, these shortcomings gave
the impulse to seek a better life, a decent life. In a broader interpretation, we can say
that playing the autonomy of the individual, namely the capacity of individuals,
households or communities to ensure their basic needs and to benefit from social and
economic rights in a sustainable and dignified equals right to regain their happiness.
As a conclusion, we can say that our right to seek the happiness is a valid legal
option. The pursuit of happiness is a goal difficult to achieve in the postmodern
years era in which humanity suffers from insufficient livelihoods, hunger and
inhuman aggression. As such, the right to accept the existence of a road to
happiness represents a road paved with man`s fundamental rights and obligations,
whose scroll requires effort and sacrifice, shaping justice in the spirit of the rule of
law to guarantee the defense of the rights, freedoms and obligations of man.
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