Un secol de ştiinţă a dreptului şi de cultură juridică în România (1918–2018)
A Century of Law Science and Legal Decoupling in Romania (1918-2018)

Summary/Abstract: A century marks a representative period of time in the historical becoming and the juridical development in the current age of accelerated evolutions, for the fulfillment of the imperatives of the past, the finalization of the physiognomy of the present, and the foreshadowing of the future perspectives. For us, Romanians, the last 100 years have started and have based their evolutive essences by the political and juridical acts of 1918, that mark the perfection of the process of creation of the national and unitary state, thus opening the way to a social and institutional unification, both legal and cultural. The “growing pains” of the unification has generated, in the field of law, an intense movement of finalizing the components of the juridical national identity, both in positive law, and in the science and culture of law. Verily, the legislative unification has imposed a change in the ways of developing legal regulations; after the initial period of Europeanization and modernization by “legal transplant”, corresponding to the first step of state unification (post-1859), followed by a rapid adaptation to national realities, thus closing into the First World War, with doctrine’s help and by the contribution of case law, the major legal “loans” have constantly been adapted and transformed, in half a century of enforcement, up to becoming Romanian law, well structured, awaiting it final phase as modern Romanian law. In this context, the legal unification imposed by the founding constitutional principle of territorial unity has faced to perspectives of materialization: by extending the existing and consolidated legislation of the “Old Kingdom”, or by radical revision of existing regulations and creating new ones, starting with the big codes, in view of exploiting common elements, of eliminating previous differences, and expressing the aspirations of future developments, authentic and western. And all this either as succession, either as a separate fundamental option. But it was not about a simple technical option, but a much deeper problem, of a cultural nature, with major implications starting from institutional and regulatory traditions, separate until then, different legal mentalities, and diverse immediate interests. Despite the ancient Roman cultural base, ethnically determined, the centuries of separate and different juridical development, accentuated in the modern period, could not be ignored. They were expressed by experiences, beliefs and non-homogenic mentalities, attitudes towards law and justice nuanced by the regional context and diverging interests to change. If natural unification, by “organic” evolution, implied thus a slow evolution, by closing, harmonization and then unification, by cultural mutations, the one imposed by the socio-political realities and priorities implied a rapid leap, which determined the practical promotion of the extension method, and thus closing the legislative union in three steps: in 1928 regarding Bessarabia, 1938 for Bukovina, and finally, concerning Transylvania, given the exceptional historical conditions, 1943. The absence of a unique and unitary juridical culture explains why the unification through major legal regulations, such as the codes, was going to prove 1 Prof. univ. dr., dr. h.c., Directorul Institutului de Cercetări Juridice „Acad. Andrei Rădulescu” al Academiei Române. STUDII ŞI CERCETĂRI JURIDICE, an 7 (63), nr. 4, p. 375–426, Bucureşti, octombrie – decembrie, 2018 376 Mircea Duţu 2 itself premature in the 1930s, given that the juridical identity has manifested itself by the end of the interwar period, and the codification has been postponed sine die. As long as the basis of the juridical development has still the law of the “Old Kingdom”, and the identity shape had to correspond to it, the transitory solution could be transforming it into a national state law. The creation and consolidation of a national juridical cultural, bearing defining components, meant eliminating and overcoming the inferiority complexes generated and maintained by the development through legal transplant, and also encouraging and supporting the trust in one’s own forces and one’s own legal creations. At over 150 of modern becoming and a century of complete unitary juridical development, the science of law and its culture find themselves again at a crossroad. This time, the fundamental option seems to be even more important, referring to the choice between continuing the traditions of its own creative framework in the field, in consonance with the European and global evolutions, by keeping and stating, as possible, of a national specific, or the abandonment of this approach by taking over and accepting as such the custom and international legal progress, uniform and aggressive in its manifestation, preserving thus the historical and legal past as simple piece of museum, to be seldom remembered and commemorated. The latter perspective, also more comfortable and cosmopolite, which has its own tradition in our parts, would mean leading to oblivion the critical sense and Romanian reflection, including here the scientific research in the field of law. Best case scenario, the “creative effort” would be reduce to the technique of interpretation and practical application of the monochrome legal text. On the contrary, the former will suppose responsibly assuming to revalue and continue what has been, promoting scientific creativity and own specificities, of Romanian exceptionality amongst the integratory unification. It is the only way that would correspond to a creative existence and national dignity, implying as a priority that, after the step of legal resettlement of positive law in the matrix of national realities and according to the assimilation and creative development of the new Romanian law, follows the adequate development of theoretical evaluations and case law perceptions. Thus, the theoretical effort would have as a priority elaborating a new synthesis in the fundamental fields, giving a principal and conceptual expression to the new Romanian law, clearing out its enforcement and revealing its development perspectives. For instance, one can take into consideration the great treatises of civil and criminal law, Romanian constitutional law or administrative law. A special place should be taken, within this effort, by the elaboration and editing of a complete history of Romanian law, from its origins to the present day, using new conceptual bases and ideal perspectives.

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