ro fr
universul juridic magazin
Revista Română de Drept Privat


The exercise of the rights or freedoms may be restricted on the grounds enumerated in art. 53 par. (1) of the Constitution. But these grounds cannot be invoked without limits. There should be a procedural framework that limits how the State may invoke these grounds. This procedural framework must be able to achieve the fundamental purpose of the constitutional provision, namely the protection of individual liberty against possible abuses from the State. The purpose of art. 53 of the Constitution coincides with the general purpose which typical in any liberal society: the priority of freedom before authority. It is therefore obvious that the principles of liberalism create the procedural framework of the imposed limits on the invocation of general interest reasons or perfectionist values to justify the restriction of the exercise of the rights or freedoms. To summarize, we can call this framework “the necessity of restrictions in a liberal society.” Before even judging the necessity of restrictions in a democratic society, we should first recognize the need for restrictions in a liberal society. This is the structural logic of art. 53 of the Constitution, since the constitutional standard is not intended to authorize the restriction of the exercise of the rights or freedoms, but to maximize the protection of the person through a strict legal framework for state action, which means that the list of patterns that can be formed in restrictions should be construed as a restrictive framework that produces the maximum stress for the State authorities. Therefore, we must interpret art. 53 par. (1) of the Constitution in the sense of creating a procedural framework to limit the State, even if it seems to allow the State to act. We will try to show how the liberal understanding of the reasons for restriction can create this framework. To sum up, this framework assumes that the main ideas of liberalism – the priority of liberty, the priority of the right over the property, the priority of self-determination of the individual and the neutrality of the state – are transposed into a system of procedural limits of the possibility to invoke the grounds justifying the restriction of freedom.