Rule Of Law And The New Regulations Concerning The Disciplinary Liability Of The Magistrates

• Author: George Mara
• Pages: 50-56

RULE OF LAW AND THE NEW REGULATIONS CONCERNING THE

DISCIPLINARY LIABILITY OF THE MAGISTRATES

Assistant professor George MARA1, PhD. student

Abstract

The paper address the functioning o f the rule of law, starting from the separation of powers, but also it offers a

brief perspective over several theories that were developed as this principle evolved from one period of time to another.

Closely linked to the principle stating the rule of law there is another one, procla iming the imperative of an independent

judicial authority and which, in performing its duties according to the rules that govern a fair trial, contributes to the

implementation of the separation of powers but also of the checks an d balances system and loyal cooperation between

these authorities. We also presented an anlysis of the new regulation regarding the disciplinary liability of the

magistrates, following the legislative changes adopted at the end of last year, and their eventual impact on the

principles mentioned above. The research methods used in order to achieve this aim are the comparative method, the

analytic and historical methods.

Keywords: rule of law, disciplinary liability, magistrates, judiciary.

JEL Classification: K10, K23, K31

1. Separation of powers – characteristic of the democratic government

Starting from the ancient philosophy of the Greeks, that offers the first examples of

distributing authority (either to one individual – the monarch, or to a small group – the artistocracy

or even to the entire people – democracy), it has been stated that legitimate power is only one and

can be exercised either by a person or by the people.

Although unique, political power has always been exercised through various categories of

structures of power, each having specific leading prerogatives and specific functions2.

The exercise of the unique power by distributing it among specialised instituions was a

common practice in Greek cities but also in the times of the Roman Republic, these states being

organized upon a model that had as a foundament the assembly of the people, various magistratures

and also judiciary instituions.3

English philosopher John Locke first brought forward the idea of what nowadays is

commonly referred to the theory of separation of powers; he distinguished between the legislative

power, the executive and the confederative ones (the latter was attributed to each person that was

not yet a member of the body of the society, before adhering to the social contract, and it was

formed by the right to peace and to declare war, the right to negotiate and other similar ones).

Although Locke did not clearly mention a judicial power, he used to represent the State as having

four functions, thus including the judicial one4.

European states, lead by various types of monarchic (and often absolute) governments did

not get to know, in theory or in practice, the separation of powers, until the XVIII th century, when

Montesquieu made public his work The Spirit of the Laws. Affirming the right of the people not to

be governed in a despotic manner, he stated that political liberty exists only if power is not used in

an abusive manner; but since experience taught us that the one who has power tends to increase it

more and more, until meeting an element that stops this tendency, the Fench philosopher enounced

what later would be known as the theory of separation of powers, because, in order fot the abuse to

be prevented, power must be limited by power.5

1 George Mara - West University of Timisoara, „1 Decembrie 1918” University of Alba Iulia, Romania,

georgemara2006@yahoo.com.

2 C. Ionescu, Tratat de drept constituțional contemporan, 2nd ed., C. H. Beck Publishing House, Bucharest, 2008, p 262-263.

3 G. Glotz, Cetatea greacã, Meridiane Publishing House, Bucharest, 1992, pp 280-317.

4 D. C. Dãnișor, Drept constituțional și instituții politice, vol I, Teoria generalã, C. H. Beck Publishing House, Bucharest, 2007, p

390-391.

5 Montesquieu, Despre spiritul legilor, vol I, Scientific Publishing House, Bucharest, 1964, p 193-194.