Av. Dr. Florică #CIUTACU: “About the spirit and letter of the #law”

Photo:bAv. Dr. Florică CIUTACU

17 iulie 2023

Judging factual situations, (pre)constituting evidence, applying the law (whether it is a given or constructed), fighting for law and law, constructing a strategy by lawyer or prosecutor and financially dividing justice (with Themis or Nemesis by your side), is (must) be done in the spirit or letter of the law?

What is the foundation of judgment? (Exempli gratia Marcel Planiol stated that at the foundation of tort and contractual liability lies a general obligation not to do – an opinion that could be capable of rendering obsolete any other theoretical construction relative to the unity or duality of civil liability).
But what is the spirit of the law, what is the letter of the law, and what is the law?

Some say that we would live in the era when magistrates qualify and pronounce according to the letter of the law and that the spirit of the law (their) creates the risk of a conflict between spirit and letter, susclikely to generate effects in terms of qualification of professional competence of magistrates and lawyers (auxiliary staff and so on).

Considering this, doesn’t saying that the one called (sometimes uncalled) is judged in the letter of the law in the complex process of dispensing justice, does it mean to hide the prosecutor behind the policeman in the case, the lawyer wants to hide behind the judge and the latter wants to hide behind the legislator? Like sometimes the litigant – who hides behind the laws (the case of the reserved inheritance and its false foundation, namely the presumed will of the deceased;

In fact, I have said this before, legal inheritance and reserved inheritance have at their foundation a subjective right and its correlative obligation, as is the case with the maintenance obligation – for a reservant cannot claim that it was the presumed will of the deceased to leave him something, that he wished he had fulfilled a maintenance obligation after his death to the reservant, if that reservant will not have fulfilled his maintenance obligations towards de cujus, if the successor reservant/legal heir does not value the spirit left by those who contributed to the creation/administration/preservation of the assets whose inheritance he claims; as is often claimed in practice that this claim conforms to the letter of the law!)

And isn’t the spirit of the law philosophy? What do we choose – Plato or Aristotle? (Since then, we have only branches of the two philosophies, said a French philosopher in the interwar period.) Idealism is not creating, and lack of idealism is not drying up the spirit? (We live in an age in which idealism is seen by some today as something abnormal, just as, unfortunately, the traditional family – that is, the one founded on the principle of proretion – is also qualified as something marginal, as an abnormal and endangered structure!).

And is not the law adopted by the legislator the Reason of the living man (magistrate, lawyer) who gives life to the spirit, (re)constructing and thus dispensing justice?

Are we not in a situation where, dividing justice in a case (magistrate and lawyer, with the litigant by my side), mirrored not only by self but also by Plato, Aristotle, but also Dracon (or another legislator) – namely the living model with which I live -, myself (here is the miracle!), I LEGISLATE: I, the one who divides justice in this concrete case – prosecutor, together with lawyer, the judge but also our supreme DOMINE DEUS – THE LITIGANT? (see, again, the case of the reserved succession given by the letter of the law versus obligations to continue the spirit of the creators who leave you the legacy).

When I don’t want to legislate and/or I can’t do that, I hide behind the concept of the letter of the law And I think this can be read as: denial of justice, which can be synonymous with denial self-denial, Platon/Aristotle denial, denial to build, tacitly accepting only the given – the convenience of the letter and avoiding the risk of applying sanctions/punishments (professionally and so on).
In such a way that positivism and the letter of the law appear to be qualifiable as certain denials, but only in certain cases (to be investigated in all situations causa remota to see if they are au ba deniare lato sensu (and/or just justice!), because the good with which we give birth is a perpetual right!