Search

Comparative law and legal history show us that law is dynamic, always in continuous development, change, or mutation. This dynamic dimension has become a central concern for the comparative law scholars. The circulation of legal models in the world (e.g. legal transplant, legal transfer, legal borrowing, legal migration) is an evergreen issue. This phenomenon has provoked numerous doctrinal disputes, which have been encapsulated in complex theories on its possibilities and impossibilities. In the present article, we will not explore the many modern theories regarding legal transplantation (or under other metaphors). Instead, we will go back in time, in the second half of the nineteenth century, to explore an interesting Romanian theory that seems to have anticipated a series of modern ideas regarding the purpose, possibilities, and impossibilities of the circulation of legal models in the world. Following this approach, the main conclusion will be resumed to the idea that the Romanian theory of forms without substance can be integrated within the modern theories of legal transplant.

The Romanian Constitution, in art. 1 parag. 3, states that fundamental constitutional values such as human dignity, citizen rights and liberties, the free development of human personality, justice and political pluralism are to be understood through the spirit of the Romanian democratic traditions. Thus, working with traditions, we have to seek constitutional identity signs in the past, in order to see, in a wider analytical and institutional background, what defines the political identity of the Romanian people as a whole and as individuals (citizenship can be discussed in paradox terms). Such an academic endeavor can successfully turn into a book subject, considering its complexity and its inter, intra and pluri scientific field connections. In the limits of a research article, we will briefly explore the constitutional history of pre- and modern Romania (which is mainly a history of constitutional transplant). One of the aimed purposes of the paper is to discover the Romanian individual that constitutes the soul or matrix of the national state or to see if a Constitution really constitute constitutional identity.

In this paper, we intend to clarify the theoretical practices supposed by the political regime transplanted by the Romanian political elite in the constitutional moment of 1866, from the Belgian Constitution of 1831. From the perspective of such an approach, we shall observe that the fundamental law of 1866 did not design a Domn (Lord)/King placed under the dictum ‘the monarch reigns, but he does not rule’, but an active head of state, constitutionally endowed with strong levers of power. Considering the Constituent’s desire to give a reply to the authoritarian regime of A. I. Cuza, the recognized constitutional powers of the head of state, on the one hand, and the further developed political status of Carol I within the political and constitutional praxis, on the other hand, emphasizes the weaknesses and incapacities of the Romanian political class regarding the dimension of the head of state constitutional institution. We shall emphasize the role and powers of the Lord (Domn) in the formula of the dualist parliamentary regime, which was not fully understood by the Constituent and by the political class that afterwards exercised the fundamental law. A dualist parliamentary regime formula inevitably involves a head of state that reigns and rules. The path towards a monist parliamentary regime, which was much more compatible with the Constituent desires (as aversions and aspirations), should have been provoked, in practice, by the representatives of the People. The dualist parliamentary regime – as an archetype of the political thinking of that era – was, in part, customary. The later character implies experience, knowledge, which the Romanian society, through its legal and political actors, did not have.

Through this article, we propose an (original) analytical approach on the consultative referendum of May 2019 and a wider critical landscape regarding the consultative referendum institution by enforcing a teleological interpretation. In this sense, we propose three sections. We will start with a short overview on the use of the consultative referendum in the recent years of Romanian democracy. In the second section we will focus on the consultative referendum from 26 May, 2019. In the third section we will ask the Founding Fathers of the Constitution for an “opinion” regarding the possibilities and impossibilities of the consultative referendum.

The year 1991, the year when the current Romanian fundamental law came in to force, designed a constitutional moment built on profound political and societal emotions. These emotions pushed the Constituent Assembly in search of an answer, in the form of a solution, to the question „What do we not want?” The answer was: “An authoritarian president / chief of state!” Consequently, the position of the head of state in the political scaffolding received an increased attention. Unlike the Communist president, who exercised great powers, the new president was thought and designed antagonistic to his predecessor. He was reduced to a role of a simple mediator. However, more than 20 years after the fall of the communist regime, the “traditional” authoritarian personality of the president transcended - of course, not as pronounced as in the communist era - the finality of the presidential role and of the presidential attributions stated in the Constitution. As we shall see, the “player president” emerged and got confirmed by the Romanian Constitutional Court against the desideratum of the constitutional moment of 1991.