The State and the separation of powers
Associate professor Cătălin-Silviu SĂRARU
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
From a legal perspective the State is a legal entity
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"
or "legal personification of the
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,
Cătălin-Silviu Săraru – Law Department, Bucharest University of Economic Studies,
See Ioan Alexandru, Introducere în teoria administrației publice, Sylvi, Bucharest, 1997, p. 21 et
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.
F. C. von Savigny, System des hentigen römischen Rechts, Berlin, vol. VIII, 1849, p. 25.
Esmein, Droit constitutionnel, Ve edit., Recueil Sirey, Paris, 1906, p. 211.