Business law_course 1_Legal Rule

OCT - 13 - 2013
BL_1_Legal Rule
LEGAL RULE
THE STRUCTURE OF A LEGAL RULE
Each legal rule has an internal structure named the formal-logical structure and an external structure
called the technical-juridical structure.
The formal-logical structure of a legal rule
This structure shows the internal parts of a legal rule and their aims. Thus, any legal rule, usually, has
three parts or elements of structure, as follows:
a) the hypothesis. It is the part of a legal rule that describes the circumstances when a certain behavior
is requested. The hypothesis can be determined when the circumstances are very detailed or
indefinite when the circumstances are generally provided.
b) the provision or command. The command is the substance, the core of the legal rule. It prescribes
what the person, the subject of law shall do under the circumstances provided for by the hypothesis.
Taking into account how precise the behavior provided for by legal rule is, the command might be
absolutely determined or relatively determined.
The command is absolutely determined, for example, when legal rule refers to an action or to a non-
action, such as: the merchants should be incorporated, the seller is obliged to warrant the buyer,
the judge is forbidden to
The command is relatively determined when legal rule allows the subject of the law to choose his own
behavior, such as: the owner may take any appropriate decisions.
c) the sanction It is a part of a legal rule that specifies whose are the consequences in case of the non-
observance of the rules command.
It means that this part of the internal structure of a legal rule specifies the penalties the judge can take
against those who do not comply with the rules command. According to the determination rank the
penalty can be:
- absolutely determined in this case the judge cannot modify it. For example the nullity of a contract;
- relatively determined in this case, law provides for a minimum and a maximum limit of the penalty
and the judge might choose the concrete penalty in accordance with the gravity degree of the fact, the
perpetrator and his relapse into crime status. E.g. the fine is from 100.000 up to 5.000.000 lei, the
penalty is prison from 2 up to 5 years;
- alternative penalties in this case the judge might choose between 2 penalties, such as prison or
criminal fine;
- cumulated penalties in this case law provides for two or many penalties for a specific crime, such as
prison and withdrawal of rights (e.g. loss of parental authority or loss of associate right).
It should be mentioned that it is not necessary for a legal rule to have in the same article of law all these
three parts together. Frequently, the hypothesis or the sanction of a legal rule can be included in
another normative act, or in another article, but the legal rule cannot ever be deprived of its command.
The technical-legal structure of a legal rule
Legal rules are usually included into normative acts, the so-called laws, governmental decisions, ministry
orders, and so on.
Any normative act is divided into paragraphs, articles, sections, chapters, titles, parts or books.
The main element of this structure is the article. As it was mentioned above, it is not necessary that all
the three elements of structure of a legal rule belong to the same article. More frequently an article can
include many legal rules or a legal rule may be included in many articles.
THE CLASSIFICATION OF THE LEGAL RULES
Due to the fact that a lot of legal rules apply within a specific moment in time and in a particular state, it
is important to find out which are the main features of each category of legal provisions. Thus, different
criteria are used to classify the legal rules, as follows:
A) According to the object under settlement, there are as many legal rules as branches of law are. Thus,
there are constitutional legal rules, administrative legal rules, civil legal rules, labor legal rules, etc.
B) According to their juridical force, the legal rules form a hierarchic system similar to the hierarchy of
the state bodies which adopt them. Thus, in the top of this hierarchy there lie the state Constitution and
other fundamental laws, further, there are ordinary laws and decrees and then decisions and
government orders, and finally ministrys orders and instructions.
This hierarchy has a great importance when there are, and usually this is the case, many legal rules
adopted by different state bodies for the same field of social behavior. In this case, a well-known
principle is used to solve any possible confusion: the legal rules endorsed by the superior state body
have priority to apply.
C) According to the behaviors character requested, the legal rules can be classified as imperative rules
and disposal rules.
1) The imperative rules are those which require a specific action (imposed rules) and those which forbid
a specific action (prohibitive rules). We emphasize that it is not possible to depart from imperative legal
provisions and law forbids any contrary agreements as well as any restrictive interpretation.
a) The imposed rules are those which expressly provide for the obligation to do something, e.g. the
seller has two main obligations, to deliver the goods and to be responsible for it
b) The prohibitive rules are those which forbid a specific action, e.g. the judge is forbidden to pass
general provisions through his rulings.
2) The disposal rules are those which allow the subjects of law to choose their behavior. These rules can
be :
a) permissive rules which allow the subjects of law to choose from the options provided for that one
which fits better to their interest, e.g. the landowner may build or till on his land anything he wants to.
b) suppletive rules which allow the subjects of law to choose their behavior and if they do not, the
provision of law applies, e.g. the agreements legally concluded have the force of law between the
contracting parties
D) According to the extend of their application, legal rules are general rules, special rules or exception
rules.
1) The general rules apply either within the entire system of law or within one of its branch, as being the
greatest comprehensive rules;
2) The special rules have a limited sphere of application, according to the specific criterion or the
qualities of people. It should be noted that there is a close connection between general and special
rules. Thus, sometimes a rule can be called general rule as compared to a second rule, or special rule
as compared to a third one. This classification appears to be very important when two legal rules have
equal vocation to apply. In this case, always the special rule has priority to apply.
3) The exception rules allow the subject of law or the judge to depart from a general or a special rule
and thus their interpretation and application is very strict.
E) According to the technique used for their drawing up, the legal rules can be classified as follows:
1) Complete rules which have all the three elements of their formal-logical structure;
2) Reference rules which do not have all the elements of their formal-logical structure and for the
missing parts they send to another normative act;
3) Blank rules which also do not have all the elements of their structure, but the missing elements will
be completed in the future through another normative act.
THE INTERPRETATION OF LEGAL RULES
The interpretation of a legal rule is a logical and reasoning procedure to understand and to explain the
content and the real sense of a legal rule. The interpretation is important in order to have an accurate
application of the rule to a real situation.
The interpretation is a minds work that allows us to understand through the words used by law the
legislators spirit, his ideas and his aims.
This is why the interpretation is a preliminary step for the application of law. The interpretations
content deals with the human judgment to understand the legislators will. This will forms the core of
the legal rule. The interpretations goal is to collect by frame a real situation to the legal provisions in
force and thus to make a rightful application of law.
The interpretations necessity
Firstly, we should emphasize that because of the wide variety of real situations a legal rule, even if it is
perfect, it cannot regard all of them.
Secondly, when we compare a real situation with the provisions of a legal rule, the latter appears to be a
static element versus a dynamic one. The real situation is the dynamic element of our analysis because
specific cases come out in real life. That is why the legal rule cannot take into account all the actual and
possible situations.
Thirdly, because the legislator cannot describe in detail all the social situations, he frequently uses
general terms to protect the persons rights and that is why the interpretation is more than necessary.
Fourthly, the interpretation is necessary each time when between different normative acts or different
prescriptions of the same law contradictions arise.
Finally, the interpretation is always necessary because the words may have, from the legal point of view,
other meanings than those of current speech.
The forms of interpretation
According to its juridical force the interpretation can be:
1. official interpretation;
2. non-official interpretation.
1. The official interpretation is given by the state organ, which has this ability under law. Actually, the
Parliament, the government and the courts of law have this competence. The official interpretation, on
the other hand, can be:
A) legal or authentic interpretation. The legislative state body, which enacts the legal rule (parliament,
government or ministries), gives this form of interpretation. It should be mentioned that the
interpretation rule has the same juridical force as an imperative rule has;
B) judicial interpretation. This is given by the judicial organs (courts of law, tribunals, courts of appeal or
the Supreme Court of Justice) when they judge concrete cases. From the juridical point of view a judicial
judgment (decision or verdict) is compulsory only between the litigations parties. Therefore, this kind of
interpretation, the so-called casuistic interpretation, has compulsory power only in the concrete case
stand for judgment.
2. Non-official interpretation. Persons who do not act as representatives of a state body give the official
interpretation. As far as its legal force is concerned, this interpretation does not bind the judges, but
may help them towards a unitary application of law.
At the same time, the so-called lex ferenda proposals given through the nonofficial interpretation may
support the improvement of law.
According to the result obtained through interpretation, the interpretation can be:
A) literal interpretation;
B) extensive interpretation;
C) restrictive interpretation.
A) The literal interpretation, the so-called interpretation to the letter of law, means that the content
of law text and the practical issued solution are identical.
B) The extensive interpretation, the so-called interpretation to the spirit of law, means that by
comparing the content of a legal text and the practical issued solution, it appears that the legal rule
covers much more cases than the legal text shows. We emphasize that this kind of interpretation cannot
be used:
- when laws text gives limitative enumeration;
- when laws text provides for exceptions;
- when laws text establishes presumptions;
C) The restrictive interpretation, the so-called interpretation to support law, means that comparing
the content of the legal text to the practical issued solution, it appears that the legal text is more broadly
formulated than the real intention of the legislator was.
According to the methods used:
With the view to its interpretation, law uses different means than other sciences. These means are the
so-called methods of interpretation. The methods of interpretation are the following:
1) grammatical interpretation;
2) systematical interpretation;
3) historical interpretation;
4) logical interpretation.
It should be noted that, as far as the result of interpretation is concerned, there are frequently used
different methods of interpretation in connection to one another. There is not any hierarchy concerning
these methods either.
1) The grammatical interpretation
As we mentioned above, the legislator includes in a legal rule the state will, and thus the rules
command has to be understood by the addressees, subjects of law. The rules command is expressed by
words linked together in clauses and sentences.
The words used to form the content of a legal rule should belong to common speech, should be well
known by the addressees and should help them to understand the legislators will.
That is why the legal rule has to be clear, accurate and precise. It also has to allow a simple and common
understanding and to be written in a concise style, without ambiguities. But, very often, the text of a
legal rule does not fit these requirements. Therefore, using the morphological and syntactical analysis,
we can interpret the legal text according to grammar rules.
The grammar interpretation takes into account the meaning of the words (the sentences morphology)
as well as the content of the sentences and the syntactical position of the word (the sentences syntax).
Thus:
- the words are used with the common meaning they have in the usual speech because laws language
should be the addressees language. It should be emphasized that the meaning of a specific word is the
dictionary meaning and not the ordinary, local meaning;
- sometimes, the meaning of the word may be specific for the juridical field, even if the word is common,
e.g.: to give, to pay, payment, movable, Thus, to give commonly means to hand over
something, while from legal point of view it means to transmit a real right as the ownership right. In a
similar way, to pay usually means to give an amount of money, while from legal point of view it means
to execute an obligation (having as object either an amount of money or the handing over of goods); .
- when it is necessary, law itself explains the meaning of specific words, such as : living place, floor
space, legal person, etc.
2) The systematic interpretation
According to this method, the interpretation of law has to take into consideration the existing
connection between different legal rules or different normative acts referring to the same object under
settlement.
3) The historical interpretation
According to this method of interpretation, in order to understand the content of legal rules, the
interpreter should analyze the concrete conditions which have been determined for the endorsement of
law, such as: explanatory notes, the parliamentary debates within the Senate or the Deputies Chamber,
etc.
4) The logical interpretation
In order to explain the meaning of a legal rule, this method of interpretation uses the rules of formal
logic and its system of reasons.
The best known logical rules of interpretation are the following:
a) the exception has a very strict interpretation. Theoretically, an exception rule applies only under a
specific hypothesis it cannot be extended to other cases with different conditions.
Using this rule, we can settle the relation between general and special laws. Thus, special law (lex
specialis) is the exception, and general law (lex generalis) is the rule. Special law always derogates from
general law, but general law cannot ever derogate from special law.
For example: the creditors may exercise all the debtors rights or actions, except those which are
exclusively personal, such as divorce, fatherhood, etc.
b) nobody can limit the application of a legal rule because its general wording, ubi lex distinquit, nec
distingeure debemus: It means that, a general wording implies a general application.
c) a legal rule has to be interpreted in order to apply not to remove its application. It means that, the
purpose of interpretation is to support the application of law. In other words, from the logical point of
view, law was adopted in order to produce a juridical effect. If that effect cannot clearly occur, the
adoption of law is senseless.
For example: when a contract clause has two meanings, it will be interpreted in order to have an effect,
not in the sense it cannot have any effect. Another example: the future litigation between parties will
be solved according to law it means that, no matter who is called to judge the trial (litigation), court
of law or arbitration tribunal, it should solve the case according to the existing legal provisions.
d) Besides these logical rules, in order to interpret legal rules, the logic interpretation uses logical
arguments. The most frequently logical arguments are:
1) The argument per a contrario. This argument applies the rule of a third partys exclusion, meaning
that A cannot be A and non-A at the same time. In this respect, the Latin said tertium non datur or
qui dicit de uno, negat de altero, qui de uno negat de altero dicit. In other words, anytime when a
specific command is provided for by the legal rule, the opposite command is denied. For example: it
cannot depart from law of public regime towards contracts or specific agreements.
Using the above-mentioned argument, it means, per a contrario, that we can depart from laws that are
not related to public regime.
Nevertheless, it should be mentioned that this argument has a relative value because the silence of the
law is not always equal to the opposite command.
2) The argument a fortiori rationae. This argument is used in order to extend the application of a legal
rule to an unknown case, which has similar conditions with the case provided for by the legal rule or
belongs to the same category of cases. In this situation, in spite of the fact that there is no direct
solution for the case under the application of a legal rule, the judge should take into consideration the
spirit of law and not the laws words.
3) The argument a majori ad minus, or in other words, qui potest plus, potest minus. This argument
means that those who can do more can do less. For example, the Constitution guarantees the
fundamental citizens rights and thus, the labor rights are also guaranteed by Constitution.
d) The argument of reductio ad absurdum. This argument is based on the fact that among the
different meanings of a legal rule there should be used that one which suits better to the rules aim. For
example, commercial law does not have compulsory provisions regarding the minimum amount of the
register capital for some private companies as sleeping partnerships or general partnerships. That does
not mean that this kind of companies do not have any capital requirements.
Indeed, according to the provisions of commercial law, any company, no matter its form, must have a
capital in order to fulfill its commercial activities. In this case, using the argument ad absurdum, we
should understand that sleeping partnerships and general partnerships companies should have a certain
capital, but its amount is not imposed by law and thus may vary according to the partners will and their
financial possibilities.
The establishment of a legal rule
To settle a legal rule means to identify that legal provision which suits the above-established reality and
to select that rule which should apply to the present case. The difficult process of framing a legal rule to
a real situation is named juridical qualification. An application act based on an accurate judicial
qualification is named legal act. This is why the legality is the second condition of the validity of an
application act.
As soon as the solidity and the legality of the act are pointed out, the application act will be issued
according to the condition of shape and the content provided for by law. The conditions of shape and
content of a legal act are studied by civil procedural law. The application act cannot be mixed up either
with normative acts (which express the state will) or with acts (which express a private will).
The application act must be the result of a logic and scientific process made by the judge. On the ground
of the proofs presented to him, the judge has to make a correct application of those legal rules
appropriate to the case and to issue a legal and justified solution (judgment).
The application of law
When we speak about the application of law we usually take into account three main factors which limit
our judgment. These factors are:
- a certain period of time when a particular law applies;
- a certain territory where a particular law applies (because law is always national and there are as many
different laws as states are);
- certain persons to whom law addresses its commands.
Grounded on all these three approaches, it is frequently included within the application of law the
following topics:
1. the application of law in time;
2. the application of law in space;
3. the application of law to people
The application of law in time
As it was mentioned above, the living conditions within the society change every day, they are, not the
same throughout the years. It appears that in order to have a correspondence between the state will
and the societys reality, it is necessary to modify the legal rules according to these changes. Indeed, it is
senseless to apply to day, in Romania, legal rules adopted hundreds years ago for regulating the
relationships between the king and his subjects. And thus, the human behavior requested by state is
different in time and the societys development implies new legal rules.
Nevertheless, nobody can say when, as a certain moment in time, a particular law has to be changed.
Thus, law will be changed whenever it is necessary, because its legal provisions do not correspond any
more to the societys development.
We should also emphasize that at a particular moment, a plurality of laws may coexist in a certain space.
For states bodies or private persons it is very important to know which laws apply at a particular
moment, because the applicable law will be the measure of their behavior. From this point of view, the
principle is very simple at each moment in time, law which is in force should be applied, but law is not
in force forever.
Thus, the issue here is to ascertain the period of time when law is in force.
It means, to establish the moment when a law begins and ends its application. In the respect of its
application, law applies from the moment it enters into force until it no longer applies (it ends its
application, no matter in what way). It should be also emphasized that there can be a difference, in
time, between the moment when law is adopted and the moment it enters into force. These moments
are frequently not the same, as it will be explained further.
a) The laws entering into force
According to the provisions of Romanian Constitution, law can enter into force only after the President
of Romania enforced it. The enforcement of law is the last stage of the so-called decision-making
process.
This process begins when the legislative draft of law, prepared by the ministers or other states bodies
or political parties is forwarded to the Parliament in order to be adopted.
At the Parliament level, the draft is discussed and approved, first of all, by the specialized commissions
of the Parliament, according to the laws field.
Secondly, the draft is subject to the Chambers (Deputies Chamber and Senate) discussions. At this
moment, the draft may be amended and goes back to the specialized commissions for a new approval or
may be approved by each Chamber.
If the form of the draft approved by each Chamber has the same content, law is sent to the President for
enforcement.
The President may enforce it or may reject it. In this latter case, law is sent back to the Chambers for
further discussions.
In fact, the enforcement of law means that the President signs the draft of law as it was approved by
Chambers and orders its publication. Thus, theoretically, law enters into force on the date of its
publication in the Official Monitor of Romania (the Official Monitor of Romania is the only means of
legal publicity in Romania) or on a further date expressly mentioned within the content of law.
b) The end of the application of law
The application of law usually ends towards its abrogation (or repeal). We may have different kinds of
abrogation, but the result is always the same: law ends its application.
Firstly, according to the way the abrogation occurs, it can be express or implicit (tacit) abrogation. The
abrogation is express when new law expressly specifies that the application of a specific law comes to an
end. The express abrogation, on the other hand, can be either direct or indirect.
The direct express abrogation occurs when new law mentions which laws or the articles of a particular
law are repealed (abrogated).
The indirect express abrogation occurs when new law specifies that all legal rules contrary to that new
law are repealed.
The implicit abrogation occurs whenever a new law, without mentioning what old law is abrogated, has
incompatible provisions with the latter.
Secondly, taking into account its extend, the abrogation is total or partial.
The application of law in space
Speaking about where law has to apply, we should remember that a special state body empowered with
this task always adopts law. Thus, the legislative power of the state delegated to different state bodies
express the state sovereign right to impose certain rules of behavior. But, because each state has its
own national sovereignty, and has to observe the sovereignty of other states, its laws cannot apply
beyond its national territory.
Usually, the application of law in space is governed by the principle of territoriality. By the idiom
territory of the state we understand the area of lands and waters contained between the borders of
the state including the afferent air space, as well as the continental plateau of the sea and the territorial
sea (12 miles). .
The application of law to people
As it was mentioned above, the beneficiaries of legal rules are natural or legal persons. It means that law
applies equally to all persons regardless their sex, nationality or race. In other words, it means that
people are equal in front of law. However, that does not mean that law applies in the same way and
with same limits to all persons. From this pointy of view, there are laws with general application (such as
Constitution or civil code) and laws which apply only to specific persons (Law no.31l1990 republished,
regarding commercial companies). In addition, we emphasize that the application of law is always
national because, as it was mentioned above, law applies only on the national territory.