The State and the separation of powers

• Author: Catalin-Silviua Sararu
• Position: Associate professor
• Pages: 274-280

The State and the separation of powers

Associate professor Ctlin-SilviuăSĂRARU1

Abstract

The State is a complex concept that can be addressed from a legal, po litical, social

and economic perspective. The p aper explores the meanings of the concept of State, State

elements and stresses that the State power is one and indivisible and it is exercised throu gh

three functions and not to separate powers, namely the legislative function, executive

function and the judicial function. The State institutions through which the three functions

are controlled each other and collaborate to achieve the needs of society , which is likely to

prevent abuses against citizens.

Keywords: State, State power, public functions, separation of powers.

JEL Classification: K10, K33

1. Preliminary considerations. The concept of 'State'

The State is a complex concept that can be approached from a legal,

political and socio-economic perspective 2.

From a legal perspective the State is a legal entity3 of public law with full

legal capacity and its own patrimony following the needs of the society. The State

thus appears as "a form of creation of law"4 or "legal personification of the

nation"5.

The State and the law are closely linked. The State creates law and,

paradoxically, delimits the right configuration and State actions. The State, through

representative political bodies, draw up legal rules and it becomes the guarantor of

their observance by applying of the coercion, if their non-application voluntarily.

Thus, in the acceptation of Kelsen "the State whose essential elements are people,

1 Cătălin-Silviu Săraru – Law Department, Bucharest University of Economic Studies,

catalinsararu@yahoo.com .

2 See Ioan Alexandru, Introducere în teoria administrației publice, Sylvi, Bucharest, 1997, p. 21 et

seq.

3 The need for leg al personality of the State is explained eloquently in the interwar Ro manian

doctrine, by M. Văraru: "If the State does not have personality could not be held liable for the

obligations taken under an international agreement. The State personality theory explains very

well the continuity of th e State. Any government debts, are binding on another government,

because the government did not engage him do wn, but the State as a moral person", M. Văraru,

Tratat de drept administrativ român, Socec & Co., Bucharest, 1928, p. 69.

4 F. C. von Savigny, System des hentigen römischen Rechts, Berlin, vol. VIII, 1849, p. 25.

5 Esmein, Droit constitutionnel, Ve edit., Recueil Sirey, Paris, 1906, p. 211.