Principle of proportionality, criterion of legitimacy in the public law

Author:Marius Andreescu
Pages:113-120
SUMMARY

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... (see full summary)

 
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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.

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