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 rule’s 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 rule’s 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 ministry’s

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 behavior’s 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 extent 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 mind’s work that allows us to understand through the words used

by law the legislator’s spirit, his ideas and his aims.

This is why the interpretation is a preliminary step for the application of law. The

interpretation’s content deals with the human judgment to understand the legislator’s

will. This will forms the core of the legal rule. The interpretation’s 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 interpretation’s 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 person’s 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 litigation’s 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 law’s text gives limitative enumeration;

- when law’s text provides for exceptions;

- when law’s 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 rule’s command has to be understood by the addressees, subjects of law. The rule’s

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

legislator’s 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

sentence’s morphology) as well as the content of the sentences and the syntactical

position of the word (the sentence’s syntax). Thus:

- the words are used with the common meaning they have in the usual speech because

“law’s 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 debtor’s 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 party’s

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 law’s 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 rule’s 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 society’s 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 society’s 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 society’s development.

We should also emphasize that at a particular moment, a plurality of laws may coexist

in a certain space. For state’s 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 law’s 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

state’s 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 law’s 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 extent, 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.