ro fr
universul juridic magazin
Revista Română de Drept Privat

Solutii la conflictul legilor in timp. In cautarea formulei ideale: De la teoria drepturilor castigate la teoria normativista (II) Teoria faptului indeplinit sau consumat

In case of laws’ succession in time, if the new law amends or suppresses the prior law and, under the influence of the latter, legal situations were born or, where appropriate, legal situations are pending to be set up, amended or dissolute, an intertemporal conflict arises between the old law and the new law. The intertemporal law crucial issue and hence of any theoretical structure to settle laws in time conflicts is to determine the law applicable to the situations pending to be set up, amended or dissolute, i.e. situations pendentes on the entry into force of the new law. This issue becomes intricate in the Romanian law, which has constitutionalized the principle of non-retroactivity of the new law (art. 15 par. 2 of the Constitution), but obviously without defining retroactivity or showing the criterion (or criteria) thereof. Solution to this capital problem was found in the classical legal literature in the terms of retroactivity / non-retroactivity, based on the distinction between acquired rights (iura quæsita) and the mere expectations (the theory of acquired rights) or on the Roman origins distinguishment between the done deeds (facta præterita) or pending deeds (facta pendentia), provided for by the theory of fait accompli. In addition to these two main theories, the modern legal literature has proposed new criteria for determining the applicable law, which tend to satisfy either the new law, as a law having immediate and general enforcement, or to the old law, as a law expressly or implicitly excluding the new law enforcement for legal situations that are pending to be set up, amended, dissolute or enforced. This concerns, on the one hand, the distinction between faits accomplis and situations pending to be set up, amended or dissolute (immediate enforcement of the new law theory) and, on the other hand, the structural analysis of the new legal norm, that is determining acts or deeds falling under and externalizing the legal hypothesis of the new rule whose legal effects or consequences depend on (normativism.) However, the applicability of all these criteria depends not only on the actual situation, on the data related to the concurrence of successive laws, but also on the legislator’s express or tacit will. Hence, these theoretical grounds and concepts are and remain, in some respects, relative and not absolute, irrefutable criteria. And this without mentioning that none of these theories provides a comprehensive response or, where appropriate, a satisfactory one both technically and in terms of the legislative policy requirements that have varied and vary from one period to another, depending on the individual or collective interests at stake and on the power of the groups representing them and the strength of ideas or beliefs that animates them. For these reasons, an ideal intertemporal law theory that meets both the technical-legal requirements and those pertaining to the political philosophy is still to be expected, if not, of course, impossible. In any case, constitutionalizing intertemporal law and enshrining the rule of law and the recognition and guarantee of human rights and fundamental freedoms open new and unexpected ways for research and reflection, for fruitful interdisciplinary analyses that promise to be useful also for the study matter of temporal conflicts of laws.