Juridical Tribune Volume 7, Special Issue, October 2017 251
second one, that man has an individualistic, evil ego, but negative parts, inward, are
corrected by society.7 Both theories make it possible to distinguish between
different moral principles and create a mosaic of human characters.
Under these circumstances, when people's principles get into conflict,
different disputes arise and people can make decisions that favour an individual,
even at the risk of affecting others. Thus, the need for justice appears as a reaction
of the man whose interests have been injured to reduce his s uffering, to reach the
previous state or to receive other advantages in accordance with the prejudice
suffered. In primitive societies, the solution to such a conflict was simple: the
strongest one was right, and the others had to either obey or oppose (physically),
the winner remaining to be the "judge". The community begins to emerge and the
need for collective security goes beyond this "law of the strongest", but it also
establishes the idea of superior, omniscient and omnipotent force. Of course, under
these circumstances the judgment still belonged to divinity, but indirectly – we can
think of auguri, priests, quacks or pontiffs. The societies are developing and laced,
and then the idea of separation of powers in the state appeared8. However, the
influences of religion can be felt event today in the Romanist law9 and especially in
Sharia, where the Imam still is a true supreme judge.
2. The judge, an essential element of procedural guarantees
With the emergence of a new order, the judicial power becomes an
integral part, together with the legislative and executive power, in the formation of
new democracies. At the same time, it is remarked, through its independence and
social force, as a genuine guarantor of the rule of law. Thus, the judge can find
himself in a double hypostasis: a representative of the judicial and an agent of it.
As a representative, he should be a moral example and he has an essential
role in conveying trust. Churchill said “Democracy is the worst form of
government, except for all the others”. It is therefore essential that both democracy
and the elements that define it convey the idea of trust and efficiency. The judge,
as a representative of a defining component of the rule of law, has a moral duty
(that is not necessarily always to be found in the positive law) to convey to people
a feeling of safety, comfort, honesty, in a word – trust.10 Using a simple inductive
reasoning, we can see that this sentiment is further propagated at the level of the
7 We can consider Tho mas Hobbes' opinion that "people are very selfish and only concerned about
their own well-being and survival; they do not respect others and are indifferent to their fate."
8 On the emergence of the state and the separation of powers in the state see Cătălin-Silviu Săraru,
Elemente de Teoria generală a dreptului pentru învățământul economic. Caiet de seminar, C.H.
Beck Publishing House, Bucharest, 2010, pp. 2-7.
9 For a more detailed analysis, Călin Rus, The material sources of law - from the primordial society to
the positive law, in the volume "LEGE SAPERE AUDE!", VIIth edition, Târgu Jiu, 2015, pp. 24-25.
10 Conclusion arrived at by theoretical and empirical analysis. A complex material demonstrating the
link between justice and trust, Jason A. Colquitt, Jessica B. Rodell, Justice, Trust, a nd
Trustworthiness: a Longitudinal Analysis Integrating Three Theoretical Perspectives, “Academy
of Management Journal 2011”, Vol. 6, pp. 1183-1206.