Considerations on the Relationship between Jurisprudence and the Way of Law's Interpretation by the Public Administration
| Author | Emil Balan, PhD - Gabriela Varia, PhD in progress - Marius Vacarelu, PhD in progress |
| Pages | 68-79 |
Professor Emil Balan, PhD - National School of Political Studies and Public Administration - emil_balan@yahoo.fr
Assistant Professor Gabriela Varia, PhD in progress - National School of Political Studies and Public Administration - gabrielavaria@snspa.ro
Assistant Professor Marius Vacarelu, PhD in progress - National School of Political Studies and Public Administration - marius123vacarelu@gmail.com
Page 69
The question from the title has, obviously, a rhetorical sense! It was generated by the numerous situations from practice when the Justice and the Executive power seem to look and to interpret with another critical apparatus the same normative reality.
A recent example is offered by the implementation of Law no. 221/2008, in the field of teaching staff's remuneration. Into the dispute is majoring with 33% of the teachers' salaries from the quota of 50% provided by law, increment obtained through judicial decisions by the teachers that addressed to justice, against public administration. The judicial instances' decisions were pronounced in implementation of the Law no. 221/2008, for whose implementation the first called was the public administration from the educational sector, namely Executive power!
In this context it was made clear a conflict of interpretation between Justice and Executive Power, regarding the same legal norms. The press reveals that "... 175.000 from the total of 275.00 professors sued the State for Law's 221..."1
Those stated above stimulate us to research the possible influence that jurisprudence must exercise on the way public administration interprets law and the configuration of this relationship in the conditions of a good administration of the public affairs, having as a starting point some basic concepts of the General Theory of Law.
Law's elaboration represents the first stage of the social relations' juridical regulation process, according to political will. The natural consequence of the activity creating law is constituted by the translation into life of the legal norms' content, the determination of the law subjects' behavior.Page 70
Law's implementation, understood as a practical activity of carrying through the legal norms' provisions, implies specific steps of legal prescriptions' achievement.
In the process of legal norms' implementation, a major importance is held by the determination of juridical or natural persons on which or in relation to whose action is going the legal norm to be implemented, as well as determining the most suitable means for transposing into life the legal norms.
The acts of law's implementation are individual acts that produce concrete juridical effects, giving birth, modifying or conducting to the extinction of some juridical rapports. This kind of acts mustn't be mistaken for normative acts, being the result of some different ways of exertion of the public power. Supporter of the normative theory, H. Kelsen affirms that each act placed on a hierarchical scale of the judicial force behaves towards the superior act as an implementation act and towards the inferior act as a normative one. The same reasoning makes Kelsen also affirm that the judicial decision would also be a norm, an individual one. (Ceterchi & Luburici, 1977, p. 372)
The way followed from the normative act to the implementation act supposes the effectuation of many juridical operations. The phases of the law's implementation process, consecrated by the General Theory are: establishing the de facto situation, choosing the legal norm, interpreting the legal norm, elaborating the juridical implementation act. In the activity of "implementation" of the legal norm, its cognition has a double aspect: the most thorough cognition of the de facto situation, that is going to be framed in the provisions of that norm, and the most thorough cognition of the spirit and of the letter of the norm that is going to be implemented for that de facto situation. (Deleanu & Marţian, 2002, p. 161)
By the interpretation of legal norms is understood the logical-rational operation performed according to certain methods and rules specific to law, having as goal the establishing of the true or full meaning of the legal norm in its actual application. (Deleanu & Marţian, 2002, p. 161)
As relatively distinct activity, but implicit to the application process, the interpretation of legal norms also raises the issue of if it is subjected to legal regulations or not. In this sense, we must note that the positive law does not contain express regulations regarding the manner in which interpretation should bePage 71performed, which does not mean, however, that this approach would be outside any regulation and, hence, at the discretion of the organ applying it. On the contrary, as the elaboration and application processes, the interpretation one falls within the limits of certain general principles and rules of the legal system.
Hence, a first category of regulations of interpretation can de deducted from the general principles of law, in the sense that interpretation (as the elaboration or application of the legal norms) cannot ignore, contravene or step outside the boundaries of the provisions or directions of these general principles. Secondly, the interpretation activity is based on the general principles and rules of logic; thirdly, the general principles that govern the regulations of different branches of law constitute, at the same time, principles of interpretation in those branches of law, in the sense that by interpretation one cannot derogate from the general principles that were and are at the basis of the regulations in that particular branch. Fourthly, apart from this framework of regulation principles, interpretation can also be executed through the lawmaker's possibility to issue, upon need, laws or norms with express destination of interpreting certain normative acts issued...
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