ro fr
universul juridic magazin
Revista Română de Drept Privat

On the distinction between rationality and legality in the romanian civil proceedings

The distinction between fact and law is, for many jurists, the fundamental and critical issue of any legal system. The Romanian case law and doctrine carries so far no systematic and theoretical elaboration of the distinction between fact and law, and one of its applications, namely the distinction between rationality and legality. Moreover, there are lacking even minimal reflections (studies, critical notes to rulings, etc.) by means of which to reflect upon the theme. At the same time, though, in the case law of the High Court of Cassation and Justice in particular and of other Romanian courts, as well, paradoxically, the distinction between rationality and legality seems to have a critical place. Thus, bearing in mind that Article 304 of the Code of Civil Procedure restricts the role of the High Court in terms of reviewing the legality of contested judgments, the fate of the appeal depends on the qualification that the Supreme Court gives to the grounds for appeal – rationality or legality. Saving that a review, superficial as it might be, of judgments passed by the High Court of Cassation and Justice evidences that almost never there are put forward grounds for which reasons that the appellant / appellants referred to the High Court’s review are considered as pertaining to rationality and therefore inadmissible or, conversely, to legality. In this text we summarized to review some decisions of the High Court of Cassation and Justice, representative for the way the Supreme Court conceives the distinction between rationality and legality. The signal we want to convey is that the specific law requirements – permanent critical evaluation of participants’arguments to the act of justice and, above all we would say, of Courts themselves, conceptual clarity etc. – claim for the Judges of the High Court of Cassation and Justice more sustained involvement in the theoretical development of distinction, that it otherwise celebrates in its decisions, especially since, as shall be seen from the analysis of foreign jurisprudence and doctrine cited, the distinction between rationality and legality is far from self-evident or, at least, easy to draw the line between rationality and legality.
After all, there is already a commonplace that motivation by rational means of decisions with huge economic, social, political and general human overtones stand for the brilliance of case law if not within living memory, at least of the modern one. And of the three classical powers, the legal one is primarily distinguished by the ability to produce rational grounds to its decisions.