About the Journal
Legal Studies and Research
Year of first appearance: 1956
Chief editor: CS II, dr. Tudor AVRIGEANU
THE CONSTANTS OF FUNDAMENTAL LEGAL RESEARCH
Professor Mircea Duțu, PhD
Former Director of the “Acad. Andrei Rădulescu” Institute of Legal Research of the Romanian Academy.
Editor-in-Chief of the journal Studii şi Cercetări Juridice (Legal Studies and Research)
Starting with issue no. 1 (57) of 2012, the journal of the “Acad. Andrei Rădulescu” Institute of Legal Research of the Romanian Academy returns to its original name, Studii şi Cercetări Juridice (SCJ) (Legal Studies and Research) (Third Series). This decision is motivated by two main reasons: first, the overly restrictive nature of the title adopted in December 1989,[1] which no longer reflected the country’s Euro-Atlantic integration or the globalization of law; and second, the desire to highlight the value of tradition and to remain faithful to the defining mission of fundamental legal research — that of tracing, across time and space, the manifestations of the constants of law.
From this latter perspective, the famous Foreword[2] to the first issue of SCJ (1956), which outlined the joint research program of both the Institute and its journal, raised and addressed a fundamental and decisive issue — that of the constants of law — turning it into a research priority for the future.
By the manner in which it framed the issue, by the contributions it inspired, and above all, by transforming and formalizing the constants of law as the core objective of fundamental legal research in Romania (“the scholars gathered around the Institute of Legal Research of the Academy of the People’s Republic of Romania, as well as other legal scholars throughout the country”), that Foreword became a true programmatic and legitimizing manifesto.
To be reaccepted onto the “official list” of recognized sciences — and thus removed from the stigma of being a mere expression of “bourgeois ideology” or an “instrument of class struggle” — law was required to adopt a “materialist-dialectical conception,” under whose umbrella fundamental legal research could take place. From this perspective, the 1956 Foreword has the merit of having first offered a new definition of law, subordinated to the ideological exigencies of the historical moment: law was understood both as a science (intended to establish its own objective legal laws) and as a technique (aimed, through a complex set of “methods” or “procedures,” to ensure the most effective insertion of those objective legal laws into social life through legal norms). At the same time, it officially developed and legitimized the theory of the constants of law, making it a programmatic object of theoretical and empirical study within fundamental legal research.
Not least, the “science” of law was thereby rescued from the ungrateful position of merely interpreting official documents mechanically and was reintegrated into the sphere of genuine scientific inquiry.[3]
This “salvaging compromise” formula is clearly visible in the very text of the introductory study: to ensure its survival, legal research — then conducted within the Institute by the most representative Romanian jurists of the time — had to accept the framework of a “materialist-dialectical conception of law.” Yet, as a moral and intellectual outlet, it found its salvation in continuity and in a certain depoliticization of research, through the conceptual refuge of the constants of law.
Of course, throughout the 34 years that followed, until December 1989, fundamental legal research and its results, as published in SCJ, unfolded within the limits of that compromise. However, a fair assessment shows that, “rendering unto Caesar what is Caesar’s,” these works remained essentially faithful to the objectives of studying the constants of law. Thus emerged representative works such as Theoretical Explanations of the Criminal Code and of the Code of Criminal Procedure (coordinated by Professor Vintilă Dongoroz), the Treatise on Civil Law initiated in 1967 under the direction of Professor Traian Ionaşcu, the first volume of the planned Treatise on Civil Law (1989, coordinated by Academician Paul Cosmovici), the theoretical efforts behind the draft of a new Civil Code, as well as valuable studies on tort liability and inheritance by Professor Mihail Eliescu, and theoretical constructs on property rights by Professors Traian Ionaşcu and Salvador Brădeanu. Equally notable were the studies and articles on various branches of law, such as intellectual property law (with the exceptional contributions of Dr. Doc. Yolanda Eminescu), cooperative law, and criminology.
Unfortunately, after December 1989 — amid the transition and radical redefinition of social, political, and economic orientations — the objectives of fundamental legal research, as reflected in the pages of SDR (Studii de Drept Românesc), evolved unevenly, sometimes neglecting or only partially maintaining the guiding principle of the constants of law. The prolonged and sinuous transition, lacking clear horizons, hindered the establishment of firm orientations in this field. Adapting to new socio-economic realities proved difficult and not particularly favorable to the development of fundamental research, including in law. The long-awaited stabilization and revival hoped for after Romania’s accession to the European Union (January 1, 2007) were delayed by the onset of the global financial crisis and recession.
However, this period of “stagnation,” fostered by an unfavorable economic context, must not become an insurmountable obstacle to the continuation — and even the revival — of fundamental legal research, despite limited resources. In any case, the existence of programmatic directions for its future development — and implicitly for the editorial strategy of SCJ — is absolutely necessary. This is what we now aim to outline, while awaiting more favorable times.
Under the sign of preserving, adapting, and modernizing the significance of these constants, a priority direction of fundamental legal research will be the analysis of the globalization of law and its manifestations, primarily at the level of its fundamental concepts, principles, and institutions. The tendency toward the uniformization of law and its instruments worldwide — through the imposition of identical legal solutions in all domestic legal systems — is evident. Several international conventions adopted in the late 20th century, such as those of Geneva (on bills of exchange and cheques), Vienna (on international sales), and The Hague (on conflict of laws), have acted in this direction.
A key vector of the globalization of law today is the extraordinary and rapid circulation of information regarding legal regulations, judicial decisions, and doctrinal ideas — which increasingly influence national legal systems as well as individual legal acts and facts.
A special place in this context belongs to the so-called global law, built around the lex mercatoria — understood as the body of universally accepted and applied norms of international commerce — and the rules produced by major transnational corporations, in the form of codes of conduct or through the jurisprudence of international arbitration.
This juridical globalization occurs under the aegis of the new world order established after 1990, dominated by the laws of the free market economy and marked by the advance of Anglo-Saxon legal concepts and institutions to the detriment of civil law traditions.
At the same time, closely linked to this global phenomenon, we observe the tendency toward the unification and integration of law at the level of major economic blocs such as the European Union — where one can already speak of the emergence of a ius communis europaeum.
In this context, increasing importance must be given to the analysis of the interconnections between national, European Union, and international law, and their reciprocal influences as they evolve toward systemic coherence and optimization. However, this should not occur through the total erasure of traditions or the removal of all national specificities. On the contrary, the “key” to successful integration into globalization — through Europeanization — for postmodern Romanian law lies in grounding itself on sound traditions and continuing them in accordance with the demands of the new global architecture, but only insofar as this reflects an intrinsic need and authentically responds to its requirements.
Equally evident is the redefinition of boundaries and relationships between public and private law — with the latter increasingly penetrating all spheres of the legal system, thereby imparting the dominant note to the globalization process.
The vast process of recodifying Romanian legislation initiated in the past decade — resulting in the drafting and adoption of the new Civil Code, Civil Procedure Code, Criminal Code, and Criminal Procedure Code — likewise requires a massive effort of theoretical analysis and foundation. Unfortunately, this effort has been devoted mainly to the application and refinement of already adopted regulations. Indeed, throughout the history of modern codification in Romania — with perhaps the sole exception of the 1968 Criminal Code and Criminal Procedure Code — legal scholarship has rarely been involved upstream in the drafting and conceptual design of major legislative acts, but rather downstream, in their interpretation and doctrinal explanation, to facilitate their implementation.
This is an unusual situation — perhaps explicable by the “haste of history,” yet lacking convincing justification — and one that does not serve a scientifically grounded codification or the consistent promotion of the authentic values of the rule of law.
And so, to paraphrase the chronicler, “It is not man who shapes the times, but the times that shape man,” we shall nevertheless strive — through special research projects, whose results will be published in the pages of SCJ — to elaborate theoretical explanations of the new codes, clarifying the issues they raise and thus creating solid premises for improving their content and clarifying their meaning in practice.
Naturally, all these priority research directions will remain permanently subordinated to identifying how the constants of law are reflected and manifested in new regulations, the transformations they undergo in form and substance, and the requirements for their adaptation to new realities — thereby developing both the theory and practice of law.
The "Journal of Legal Studies and Research" will generously open its pages to all those — from Romania and abroad — who wish to share, with competence and dedication, their valuable and representative ideas and analyses in the field. It will encourage young researchers in their scientific beginnings and affirmations, remain receptive to novelty and authenticity, while honoring the need for continuity and showing due respect for tradition.
