Legal Rules

Legal Rules are the simplest element of the system of law. It is an established standard or
principle guiding the conduct or action in a given type of situation.
Civil Legal Rules are rules of human behavior which define the relationship between people
and between people and the society.
Any juridical rule has the following features:

It is general. It prescribes a general and typical behavior that is addressed to anybody.

It is impersonal. It is not addressed to a specific person, but to an undetermined number of
persons.
However, there are different ranks of indetermination. Constitutional rules have the largest rank
of indetermination while family law applies to persons linked by family relationships. Also,
within family legal rules some of them are related to parents, so the rank of indetermination is
much smaller.
It is compulsory. Its provisions can be imposed if necessary by the coercive power of the
state.
This feature distinguishes the legal rule from other social rules (moral rules). Even if a moral or
religious rule is mandatory it may never be applied by the coercive power of the state
Each legal rule has an internal structure (formal logical structure). It has 3 elements of
structure:
1. The hypothesis. It is the element of the legal rule that describes the circumstances when a
certain behavior is required. It also provides the category of persons which have to obey the
rule.
2. The provision (dispozitia). It describes what those governed by the law, the subjects of the
law have to do, are allowed to do or are forbidden to do. Therefore the provision can require
a specific action, or the abstention to act or it can allow some actions.
3. Sanction. It specifies which are the consequences in case of non-observance of the rules
provision.
It can be:
Absolutely determined whenever the judge cannot modify it (e.g. The nullity of the
contract concluded in an unlawful way)
Relatively determined whenever it provides only the minimum and the maximum of
the penalty and the judge may choose the proper penalty applicable(the penalty is
from 2 to 5 years of prison, or from1mil lei to 5 mil lei)

There is another classification:

Alternative penalties when the judge can choose between 2 penalties (e.g. prison or
criminal fine)
Cumulated penalties when the law provides 2 or many penalties for a specific
crime( s. a. prison and withdrawal of rights- e. g. parental rights)

A typical juridical rule which has all these may be a sentence: If you are in a certain
position, context then you have to dosomething, are not allowed to do something, otherwise a
certain sanction will be applied.
IF-hypothesis
THEN-provision
OTHERWISE-sanction
Classification of legal rules
1. According to the object of the provision there are as many legal rules as there are branches of law.
(e.g. constitutional, civil, labor, family legal rules)
2. According to the type of behavior requested legal rules can be classified as:
1. imperative rules
2. disposal rules
From this point of view the law can be divided into:
rules that apply regardless of the persons affected by the law (imperative
rules)
rules that apply unless the person affected agree that they shall not be applied
(disposal rules)
The division of the public law consists almost entirely of imperative rules.
The private law is a mixture between imperative and disposal rules
Imperative rules (Mandatory rules) can be divided into:
Imposed rules (norme onerative). They provide the obligation to do something.( duty to pay
tax)
Prohibitive rules (norme prohibitive). They forbid a specific action. Most criminal rules
consist of such interdictions.
The Disposal rules may be:
Suppletive (voluntary). They become applicable only in the case of the silence of the
parties. (e.g. in a sale contract the price will be paid at the residence of the debtor unless the
parties agree otherwise).They became mandatory only when parties cant agree to decide
otherwise.
Permissive. They allow a certain behavior(e.g. normally a person can marry starting 18y old,
by exception women can marry starting 16)
3. The rules may also be classified according to the technique used for their drawing up as:
Complete rules. Only if they have all the three elements of the internal structure: hypothesis,
provision, sanction.
Recurrence rules. Which do not have all the elements of their internal structure and for
missing parts they send to another normative act.
Blank rules. Which also do not have all the elements and also their missing elements will be
completed in the future through another normative act.
The interpretation of legal rules.
The legal law cant be applied without being interpreted. The interpretation is important in order
to have an accurate application of the rule to a real situation. Because of the wide variety of real

situations a legal rule, even if its perfect, it cant regard all of them. A legal rule cant take into
account all the actual and possible situations because life is always changing and transforming the
reality every second .Also, the legislator frequently uses general terms, he cannot describe in detail
every social situation, so an interpretation is more than necessarily. Also it is necessarily whenever
contradictions between different normative acts of different prescriptions of the same law occur.
Finally the words can have, from a legal point of view, other meaning than those of current speech.
The duty of the judge as an interpreter is to arrive to a legal meaning of the rule. The legal
meaning is not necessarily the same as its grammatical meaning. According to our civil code the
judge is never entitled to decline the duty of determining the legal meaning of the rule.
The forms of interpretation
According to its juridical force the interpretation can be:
Official interpretation. The official interpretation may be given by the legislator or
the judges and the courts. The interpretation by the legislator is mandatory for
everybody. The interpretation given by judges is compulsory only between parties
implied in the trial. If another trial will arise in the same issue, the judge will be free
to give another interpretation to the rule.
Non-official interpretation. It is given by the doctrine lawyers, subjects of the law.
The role of this interpretation is to rise above the particular provisions, above the
factual situations and create general principles. The so-called lex ferenda proposals
given through non-official interpretation may support the improvement of law.
The methods of interpretation
1. The grammatical interpretation. It is the first step in the legal interpretation of a rule.
Normally the legal rules will be interpreted according to the actual meaning of the words. The legal
meaning of the words corresponds to the grammatical meaning. A 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.
Nevertheless there are cases in which the juridical meaning is not the same with the usual meaning
of the word. For example, the verb to give commonly means to hand over something, while legal
point of view it means to transmit a real right as the ownership right. Sometimes, civil law uses
specific words, unknown in common speech s. a. pledge, prescription, legal capacity, servitude and
so on. When it is necessarily, the law explains itself the meaning of certain words.
The main purpose of this interpretation is to understand the legislators will.
2. The systematic interpretation. It is known as the contextual approach. The interpretation of
the law has to take into consideration the existing connection between different legal rules or
different normative acts referring to the same object under settlement. The legal rule will not be
treated as standing alone. It has to be interpreted in a context as part of a status, as a part of a branch
of law, as a part of a system of law.
3. The historical interpretation. It involves looking at the reports and debates in the
Parliament, regarding the passing off of the legislation. Within this approach the interpreter should
analyze the concrete conditions: social, economical, political, which allowed the adoption of the law.
This method may be particularly relevant for old legislation (our Civil Code-transcription of the
French code).

4. The logical method of interpretation. This method of interpretation uses the rules of formal
logic and its systems of reasons.
The best known logical rules of interpretation:
- 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. Special law is an exception and general law is the rule. Special
law always derogates from general law, but general law cannot ever derogate from
special law.
- Nobody can limit the application of a legal rule because its general wording,
meaning that a general wording implies a general application.
- A legal rule has to be interpreted in order to apply not to remove its application.
From the logical point of view, law was adopted in order to produce juridical effect.
If that effect cannot occur the adoption of law is senseless.
In order to interpret legal rules, the logic interpretation uses logical arguments, besides logical rules.
The most frequently used logical arguments:
- The argument per a contrario meaning that A cannot be A and non-A at the same
time. Anytime when a specific command is provided for by legal rule, the opposite
command is denied. We can depart from laws that are not related to public regime.
But the silence of law is not always equal to the opposite command.
- The argument a fortiori rationae. This argument is used in order to extend the
application of a legal rule to a unknown case, which has similar conditions with the
case provided for by the legal rule or belongs to the same category of cases.
- The argument ad majori ad minus. This 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 guaranteed by Constitution.
- The argument reduction ad absurdum. This argument is based on the fact that
among different meanings of a legal rule there should be used that one which suits
better to the rules aim. For example, commercial low doesnt have compulsory
provisions regarding the amount of register capital for some private institutions like
sleeping partnership or general partnership. That doesnt mean that this kind of
companies dont have any capital requirements just that this amount is not imposed by
law and thus may vary according to the partners will and financial possibilities.
- The argument of analogy. Any time when law has the same reason, the same legal
rules should apply. The judgment is very simple: the same cause should determine the
same result.
The law itself doesnt provide any of these methods. They are the result of the doctrinal work.
Nevertheless the Civil Code includes some provisions regarding the interpretation but only
concerning the construction of the contract. By analogy, such rules may be useful even in the
interpretation of the legal rules.
These are the rules applicable in order to construct a contract:
In interpretation agreements the judge has to find the common intention of the contracting
parties instead of the literal meaning of the words.
When a provision can have 2 meanings, the interpretation that will make it effective is to be
preferred over the interpretation that will deprive it of all effects.

Terms, words that can have 2 meanings are to be taken in the sense most appropriate for the
subject matter of the contract.
Each provision of an agreement is to be interpreted as a part of the entire contract.
In case of doubt the agreement is to be interpreted against the person who has rights and in
favor of the party assuming obligations. (in dubio proprero)