Principle of proportionality, criterion of legitimacy in the public law

• Author: Marius Andreescu
• Pages: 113-120

Marius Andreescu

113

LESIJ NO. XVIII, VOL. 1/2011

PRINCIPLE OF PROPORTIONALITY, CRITERION

OF LEGITIMACY IN THE PUBLIC LAW

Marius ANDREESCU∗

Abstract

A problem of essence of the state is the one to delimit the discretionary power, respectively

the power abuse in the activity of the state’s institutions. The legal behavior of the state’s

institutions consists in their right to appreciate them and the power excess generates the violation

of a subjective right or of the right that is of legitimate interest to the citizen. The application and

nonobservance of the principle of lawfulness in the activities of the state is a complex problem

because the exercise of the state’s functions assumes the discretionary powers with which the

states authorities are invested, or otherwise said the ‘right of appreciation” of the authorities

regarding the moment of adopting the contents of the measures proposed. The discretionary power

cannot be opposed to the principle of lawfulness, as a dimension of the state de jure. In this study

we propose to analyze the concept of discretionary power, respectively the power excess, having

as a guidance the legislation, jurisprudence and doctrine in the matter. At the same time we would

like to identify the most important criterions that will allow the user, regardless that he is or not

an administrator, a public clerk or a judge, to delimit the legal behavior of the state’s institutions

from the power excess. Within this context, we appreciate that the principle of proportionality

represents such a criterion. The proportionality is a legal principle of the law, but at the same time

it is a principle of the constitutional law and of other law branches. It expresses clearly the idea of

balance, reasonability but also of adjusting the measures ordered by the state’s authorities to the

situation in fact, respectively to the purpose for which they have been conceived. In our study we

choose theoretical and jurisprudence arguments according to which the principle of

proportionality can procedurally be determined and used to delimit the discretiona ry power and

power abuse.

Keywords: discretionary power, power excess, subjective right, principle of lawfulness,

principle of proportionality constitutional law

I. Introduction

The lawfulness, as a feature that needs to characterize the juridical acts of the public

authorities, has as a central element the concept of “law”. Andre Hauriou defined the law as a

written general rule established by the public powers, after the deliberation and involving the

direct or indirect acceptance of the governors1. In a wide meaning, the concept of law includes all

juridical acts that contain the law norms. The law in a restricted acceptance is the juridical act of

the Parliament elaborated in compliance with the constitution, according to some pre-established

proceedings, that regulates the most general and most important social rules. A special place in the

administered legislative system is owned by the constitution defined by the fundamental law that is

placed on top of the hierarchy of the legislative system which contains juridical norms with a

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∗ Ph.D., (e-mail: andreescu_marius@yahoo.com).

1 André Hauriou, Droit constitutionel et institution politiques, (Paris, Ed. Montchrestien, 1972), p.137.