Functions of the Rule-of-law State within the European Space

Asist. Univ. Drd. Paul - Iulian Nedelcu

Faculty of Social Sciences,
University of Craiova, Romania

Abstract
In what the functions of the state are concerned, we must first note that the constitutional
history of the states is, beyond the conflicts generated by the formal problematics of acquiring and
exerting power by the governors over the governess, the history of the effort to conciliate the will
and interests of individuals and society whom the government act is exerted upon with the will and
interests of subjects holding exclusive political authority, in other words, to establish a relation
between social legitimacy and legitimacy developed in itself by any state power. The theoretical
conquests of the XXth century which in the political and juridical field consecrated the concept of the
rule-of-law, democratic and social state generated the reality of certain states where the power was
structured and obeyed to the law, a law established in the competition between interests and values
promoted according to human needs, a law put, more or less, in the service of its citizens .

Keywords: Government, Administrative Function, Law, Parliaments, Executive Function,

Jurisdictional Function.

In the current doctrine there is a series of concepts aspiring to surpassing, from a functionalist
perspective1, the classical difference between the legislative and executive function of the state,
respectively between the function of establishing the content of law and the one regarding a material,
effective achievement of the law. Among these, some mistake the functions of the state with the nature
of the state bodies activities, thus, within binary, dualist concepts concerning the division of the state
functions, the distinction between the executive and the legislative is transposed, in a first category of
conceptions, towards the distinction between the political land administrative function of the state,
distinction according to which the law becomes a principle frame, establishing a general political
orientation, the government acting within this frame . The political function is exerted by many bodies,
the Government, the Parliament, the Chief of the state, etc., and the administrative one as well,
without any stopping that the same authority (the Government) contribute to exerting both functions .2
Another category of binary conceptions is generated by acknowledging that the tasks between
the Government and the Parliament are no longer distributed in current democracies according to the
1

Leon Duguit (1859-1928) a famous French jurist, professor of constitutional and administrative law.

H. Goodrow, Politics and Administration, New York, 1900, p.17; M. Duverger, Institutions politique et droit
constitutionnel, P.U.F., Paris, 1963
2

distinction between the power of taking primary decisions and the power of performing these
decisions. Thus, it is stated that: the concept of governmental power long overpasses the traditional
concept of executive power. It even opposes to it in a way: the idea of executive implying that the
Government intervenes in a secondary way, that it does not have the initiative of the action. On the
contrary, the modern Government plays in an essential way a part of impulsion: within the political
machine, it is the engine.3
The Government plays, in this sense, the part of planning the national activity by guiding the
legislative initiative, by defining general politics, by tracing action programs. It no longer settles for
executing the law voted by the Parliament, but actively takes part to their drawing up, on one hand
with activities of political impulsion and on the other hand with activities of general direction. The
deliberative function, understood as a power of limitation, o none hand, and as a power of claim on
the other hand, belongs to the Parliament and has an a priori dimension by establishing the general
frame of the governmental action and an a posterior dimension expressed through the legislative
activity and through budgetary power. The power of claim is showed with the transformation of the
Parliament in a sort of office for claims for the citizens, interest groups and opposition, this is why:
the existence of liberties remains tied, in fact, to the existence of Parliaments .4
Furthermore, a third category of conceptions targets the distinction between the governmental
and the administrative function of the state. We must take into consideration, as Georges Burdeau
showed in this respect, that the state bodies are fuelled by a power the source of which is exterior to
constitutional mechanisms. Public opinion, claims of the masses, national wills, these are the forces
which, framed by means of the political parties, search in state agents the instruments for their
achievement. Thus, there are the nature and intensity of these sources of political strength that,
without any deference for theoretical forms and in the purest indifference towards constitutional texts,
shall order the division of the Power which shall be effectively performed in the state 5. In this sense,
the governmental function includes the power of making the law, the diplomatic action, the acts
fulfilled by the Government as a political body, etc., uniting in an indissoluble whole the activity of
the state bodies which insert for the first time a matter in the law field.6
On the other hand, the administrative function puts in motion a secondary, derived power; as
such, we only meet rules that develop and mention a pre-existing rule, deeds made in performing a
previous rule or the effects of which are ordered by a pre-established regulation .7
If the followers of the first categories of conceptions generalize the part that various state
authorities acquire within the process of exerting power, trying to functionalize the old frame of the
separation of the state powers, other authors, distinguishing between the political and juridical nature
of the state authority activities , suggest a defining of the state functions according to the political or
juridical nature of the deeds the state bodies perform, making a distinction between the decision,
performance, execution, consulting and control state functions .8
In fact, we notice that all of these conceptions try to explain the carrying out of the public
power only in what the state in concerned, which necessarily leads to the impossibility of configuring
generally the state functions. As we know, society is a structuring of inter-human relationships for the
coexistence of liberties, the entire social mechanism contributing to this. The law represents the
means by which the state and the society achieve this goal .
M. Duverger, Institutions politique et droit constitutionnel, P.U.F., Paris, 1963
M. Duverger - idem
5
Georges Burdeau, Trait de science politique, vol.IV.
6
Idem,
7
Idem.
3
4

M. Duverger, op. cit. pg. 174-176. For other ways of dualist share of the functions: R. Capitant, La reforme du
parlementarisme, Paris, 1936, pg. 151; L. Blum, La reforme guvernamentale, Paris 1936, pg. 151; Jean Dabin,
LEtat ou la politique, Paris 1957, pg. l48; Jean Dabin, Doctrine generale de lEtat, Paris, 1957; R. Aron,
Sociologie des socits industrielles, Esquisse dune thorie des rgimes politiques, CDU

The law is placed, in the rule of law state, in the centre of the social edifice in its whole and
according to it there must be configured all the other state functions. In this respect, neither the
attempt to functionalize the old frame of power separation nor the organic manner of establishing the
functions of the state or to find new functions meant to explain the part of the authorities in the
contemporary state, cannot meet our expectations. In exchange, if we add current reviews regarding
the part of the state bodies in a new general frame which does not limit itself to the state institutional
level, but also includes the level of the civil society and the international one, and if we define the law
in a material way instead of a formal one and we bond the functions to the part of the state authorities,
nothing stops us from keeping, in this narrow frame, the division in legislative, executive and
jurisdictional function.
From the limited perspective of the manner in which certain state authorities perform these
functions, respectively from the perspective of the part played by different state bodies in performing
the state representative mandate, the Parliaments hold a prevalent part in performing the legislative
function, holding not only the proper legislative part, but especially the part of controlling and
limiting all the other legislative impulses, first of all the ones corresponding to governments, and the
governments the prevalent part in the activity of law performing, aspect under which they run the
administrative machine. Governments take part, however, with the wide implication of technocracy
also to the application of the legislative function, by means of at least five procedures: the legislative
orientation and initiative, in certain systems even exclusive 9, the participation to parliamentary
debates (as with clerk deputies) 10, the participation to establish the agenda and organize
parliamentary debates (as in The Great Britain, for instance, where the program for each session is
agreed upon by a committee formed, within the Cabinet, by the presidents of the Chambers and Chef
Chip and the Government organizes the debates Allocation of time orders after the paper cutter
knife approach)11, the procedure of the vote of trust concerning a legislative text (situations in which
the Government puts pressure on the Parliament with the procedure of undertaking responsibility
regarding a legislative text, also stipulated in the Romanian Constitution, republished) 12, the
legislative delegation 13 (also stipulated in the Romanian Constitution, reissued, in art. 115 ).
In what the jurisdictional function is concerned, far from limiting itself to applying the law in
concrete cases, justice, whether constitutional or ordinary, recreates it. Jurisprudential law represents a
significant part of the law, regardless of constitutional or legal texts, including from the public law
field; the most obvious appears with the Anglo Saxon system, where the court decisions are a formal
source of law, capable of having three types of authority: res judicata, authority of the foregoing and
the judge made law or case law authority. With the latter case, the decision gets a general value,
comparable with the one corresponding to the law, being applicable to everybody. Thus, instead of
being only an interpretative source, it becomes a source that creates the right and the judge makes the
law.14
In systems in which ordinary courts control the administrations law embodiment, the judge
also takes part to the law embodiment from the administrative point of view. He can cancel for
reasons of illegality the administration acts, which already represents interference in exerting the
executive function, but can even force the administration to issue an act, case in which it replaces it in
the performance making. As this control is usually manifested over the government acts, as well, it is
obvious that the judge takes part to the governance, thus he is not unacquainted with the executive
function exercise.
M. Duverger - op. cit. pg. 155-156; Marcel Prelot, Jean Boulois, Institutions politiques et droit constitutionnel,
Dalloz, Paris, 1990; Jean Gicquel, Droit constitutionnel et institutions politiques, Monchrestien, Paris, 1991
10
Idem.
11
Jean Gicquel, born in 1937, a French jurist, professor of public law, University of Paris I, Pantehon Sorbona,
constitutional law specialist and member of C.S.M. Droit Constitutionnel et Institutions Politiques,
Montchrestien, 1965.
12
Art. 114 line. (1) of the Romanian Constitution, reissued in the Romanian Gazette, Part I, no. 767 of October
31st 2003.
13
Pierre Pactet, Institututions politiques, Droit constitutionnel, Masson, Paris, 1986
14
Henri Brun, Guy Tremblay, Droit constitutionnel, IIme edition, Les Editions Yvon Blais Inc., Cowansville,
Quebec, 1990, pg. 22-24.
9

The executive function, at least formally constitutional, applies for the executive. As with the
legislative function, several bodies bring their contribution to its practice: Government, chief of the
state, public administration, Parliament, legal courts. The executive is the one officially playing the
part of organizing the performance of the law and of fulfilling, by acts of concrete achievement, the
law. Sharing the attributions in this respect by the college body and the unipersonal one is as different
as the chief of the state is the head of the government, as well, or not. In order to perform the law, the
Government issues general, erga omnes mandatory acts, but which but which hold a juridical force
inferior to the one the law has, meaning they cannot insert a primary regulation in the juridical order.
When faced with a concrete performance of the law, the Government issues individual acts. Both
categories of acts must be judicially censurable if they are not expressly exempted from the control,
by a law.
It is true that the Parliament cannot directly adapt the general regulation to particular
situations, but having the power to impose from the outside a certain performance, by the means of
control and sanction it holds, means to indirectly perform the executive function .
In the contemporary state, if the chief of the state is formally placed within the Executive, in
most of the western constitutions, his part in performing all the other state functions is undisputable. If
we refer only to his part in performing the legislative function we notice at least four devices: penalty
(the system is adopted by monarchic constitutions in which, without the Chief of the states penalty,
the law is imperfect from the juridical point of view), promulgation15, the right to demand a new
deliberation 16, the legislative veto.
The chief of the state can also influence the enactment by the right to dissolute the Parliament.
When this right exists, which makes a rule; it can be used as a weapon so as to obtain a certain
legislative result.
In short, regardless of the role the constitutions and the law keep for the administration, it is
undisputable that it plays a crucial part in the public politics field, both from the perspective of its
establishment through enactment and from the perspective of its achievement through performance .
First of all, the administration offers the information necessary for any enactment: to inform
means to select and to select means to decide. The Parliaments and Governments do no always see the
reality, but rather the image the administration offers about this reality, sometimes even in its own
benefit, promoting or minimizing certain social demands .
Secondly, because of the complexity and, moreover, of the technical characteristic of current
problems, the administration has the role of preparing legislative or executive decision projects as it
holds the necessary experts . As a contemporary author states: the administration technicians are just
mere assistants. But this assistance places the formal decision authority in a relation of dependence 17.
Thirdly, the administration acts are creative acts, as, in our opinion, in the conditions of the
contemporary state, the law-consecrated political decision no longer has to be only performed, that is
applied, but also efficiently achieved for the public benefit. The performance is the decision continued
by other means and with other decisional agents, even if the philosophical, political or juridical speech
continues to ignore this mutation.18
In conclusion, the administration works in our days as a strong pressure group, organized on
the edge of the decisional institutional organizational chart and which uses the attributions and means
made available (administrative authorities and agents performing public services) so as to influence
the decision in its members best interest.

M. Duverger - op. cit., pg. 156; J.B. Herzog and G. Vlachos, La promulgation, la signature et la publication
des textes lgislatifs en droit compare, Travaux et recherches de lInstitut de Droit compar de lUniversit de
Paris, 1961.
16
M. Maier, Le veto lgislatif du Chef de lEtat, Librairie de lUniversit Georg & C-ie, Geneva, 1948.
17
Y. Meny, Politique compare, Montchrestien, Paris, 1991, pag. 327.
18
Idem, p. 328.
15

Bibliography
- Leon Duguit, (1859- 1928) famous French jurist, professor of constitutional and administrative law.
- H. Goodrow, Politics and Administration, New York, 1900, p. 17; M. Duverger, Institutions politique et droit
constitutionnel, P.U.F. Paris, 1963.
- M. Duverger, Ianus, Les deuxfaees de l'oecident, Fayard, Paris, 1969
- Georges Burdeau, Trait de science politique, vol. 2, LGDJ, Paris, 1967
- Art. 114 line. (1) of the Romanian Constitution, reissued in the Romanian gazette, Part I, no. 767 of October
31st 2003.
- Pierre Pactet, Institututions politiques, Droit constitutionnel, Masson, Paris, 1986
- Henri Brun, Guy Tremblay, Droit constitutionnel, IIme edition, Les Editions Yvon Blais Inc.,
Cowansville, Quebec, 1990.
- M. Duverger - op. cit., pg. 156; J.B. Herzog and G. Vlachos, La promulgation, la signature et la publication
des texts lgislatifs en droit compare, Travaux et recherches de lInstitut de Droit compar de lUniversit de
Paris, 1961.
- M. Maier, Le veto lgislatif du Chef de lEtat, Librairie de lUniversit Georg & C-ie, Geneva, 1948.