Key Concepts of Romanian History: Alternative Approaches to Socio-Political Languages

The Concept of Constitution in the History of Romanian Legal Thought

The Concept of Constitution in the History of Romanian Legal Thought Edda Binder Iijima Decisions ensuring political order have been laid down under different names in Romanian history and legal language, such as: sound/substantial laws, fundamental laws, endowment, pravilă (archaic word in Romanian for law [or a group of laws], disposal, regulation, act [with civil or clergyrelated character]), regulations/rules, constitution or constituţiune (archaic form of constitution, in Romanian). My study aims to address a set of questions and problematic issues regarding the concept of constitution in Romanian culture. Constituţiune (the archaic form of constitution, in Romanian , meaning state constitution) entered the Romanian socio-political language from the principalities of Moldavia and Wallachia in the third decade of the nineteenth century. Borrowed from French, the term was already in use by the second half of the eighteenth century. Most complaint letters of the times were addressed to foreign rulers, and French was the language in which political norms were formulated. The Frenchoriginating neologism of constitution was adopted by Romania in order to designate a fundamental, legally instituted order that accompanied a form of government.1 Constitutional thought used various concepts before the variant of constitu ţie (constitution) established itself in 1866. In its linguistic usage, the notion designated a state’s fundamental law and it was used to refer to the new order that had not been imposed from the outside but represented a compromise among various Romanian political concepts. This idea of compromise, just as that of consensus from the 1866 Constitution, disappeared from the fundamental law of the country that was reformulated 1 This term became a key-concept designating the state constitution in mid-eighteenthcentury France. See Schmale, “Constitution, Constitutionnel,” 35; Vlad, “Inventarea ‘Constituţiei’,” 28. 290 Edda Binder Iijima between 1938 and 1991. According to the latter, the new politicaladministrative elites could unilaterally change the basic principles of the country and illegitimately establish their own domination. It was only after the 1989 overthrow of the communist dictatorship that the 1991 Constitution returned to the social consensus regarding legal norms, albeit this was only precariously tackled therein. The constitution, understood as a written system of norms that were superior to consent-based law and absolutely necessary in the existence of a state, was elaborated in the socio-political milieus of the Principalities by distinguishing and crystallizing certain fundamental principles. Since they were different in point of state affiliation and internal organization, Transylvania, Moldavia and Wallachia developed various programs of stately order. In Transylvanian political thought, it was paramount to solicit the legal equality of the Wallachian nation, or the natio valachica, with the other “nations” and to also ask for proportionate representation in the Transylvanian Regimen in view of maintaining the stately order of the Habsburg Empire and Hungary, respectively.2 In contrast, the constitutional representatives from Moldavia and Wallachia evolved in the direction of a dispute meant to reject outside interventions and lead to the acquisition of autonomy in the case of decisional trials. The issue of the fundamental principles of state order was at the core of linguistic, historical and political debates regarding the constitutional system from Moldavia, Wallachia, and Romania, respectively. The first attempt to reorganize the state administration was due to Constituţia Cărvunarilor (the Constitution of the Cărvunari) from 1822. A first stage in the process of the formation of the Romanian state and nation was represented by the Constitution from 1866, which inaugurated the use of the concept of constitution as part of daily socio-political languages.3 Constitutional thought later used this notion and conferred new meanings on it. Its evolution in Transylvania until 1918 requires a separate investigation because it must include theoretical interdependencies. One should consider , for instance, the influence exercised by the legal thought of Simion Bărnuţiu and the school he ran on the concept of constitution both in Transylvania and Moldavia. A conceptual history investigation imposes the analysis of Romania’s various constitutional projects. This should be a diachronic analysis in 2 For Supplex Libellus Valachorum from 1791, see Prodan, Supplex Libellus Valachorum. 3 The two distinct forms of constitution in Romanian (constituţie and constituţiune) can be explained in light of whether the term was borrowed from Russian or French. The Concept of Constitution in the History of Romanian Legal Thought 291 which the changes in meanings become visible. The projects either correspond to a...