PNII-RU-TE-2012-3-0412 - English Version


Project Code: PN-II-RU-TE-2012-3-0412
Contract No. 33/2013

Title: The Constants of Criminal Law and the Normative Identity of the Romanian Society (1939-1969-2009)

Research Team:

1.    Dr. Tudor Avrigeanu, M.iur.comp. (project leader)
2.    Dr. Norel Neagu
3.    Dr. Ifrim Ion

A. Summary:

The New Penal Code adopted in 2009 challenges the criminal law science to overcome the existing gap between the traditional paradigm of Romanian theory of crime and the German tradition that inspired the new legislation. The project aims to contribute thereto by developing a comprehensive comparative analysis of the doctrines which decisively shaped the criminal law scholarship in Germany and Romania: the so-called finalistic doctrine of Hans Welzel (1904-1977) and the doctrine of Vintilă Dongoroz (1898-1976). While in 1939 both doctrines are completely opposed, the great works published by these scholars in 1969 are built around conceptual structures – the so-called logical structures of the reality (sachlogische Strukturen) resp. the constants of law (constantele dreptului) – which do not depend either on legislative decisions or the concrete social reality. The research aims to explain in detail how the decision to depart from such structures is influenced by the changed socio-political conditions then how the differences between both types of structures explain the gap between the leading theories in Germany and Romania, and, finally, how this gap may be surpassed by applying to Romanian criminal law the modern so-called functional approach: scientific concepts are reflect primarily not legislative decisions, but the normative identity of every concrete society protected by the criminal law.

B. Results to be achieved

I. 1939-1969: Criminal Law Science versus Political Ideology

The first particulare objective of the project is to show how the approach of both Welzel and Dongoroz was transformed under the changed socio-political conditions in Germany and Romania. Although Welzel had no significant connection with specific Nazi literature on criminal law, his main publications between 1933 and 1945 contain some constructions that are similar to those used and abused by the scholars usually associated with the Nazi “political science of criminal law”. After 1945 such constructions were not anymore suitable, and their place was taken by the “logical structures of the reality”. The research will show in detail how this change affected Welzel’s approach on certain issues in the theory of crime (pertaining to action and culpability). Analogously shall be proceeded with the approach of Dongoroz, whose secret escape from the mandatory “political science of criminal law” under the Communist regime was the program of the “constants of law”

II. 1969-2009: Divergent Evolutions in Germany and Romania

Welzel’s work became internationally known during the 1950-ies and was equally subjected to notable critics during the 1960-ies. It is more than probably that Dongoroz took notice on this work. The project will try to assess if certain changes occurring in Dongoroz’ work in his late years (reference for the previous phase is to be taken the treaty on criminal law from 1939) and concerning problems like the treatment of the intellectual and volitional factors of guilt, or casus fortuitus are a consequence of the influence exercised by Welzel`s work and / or its critics in the West Germany. Around the end of the 1960-ies the Romanian scholarship began to address the first references to the West German scholarship and there are also Romanian scholars criticising Dongoroz’ formalistic approach in forms which are very close to those that Welzel himself used in order to criticise his opponents. The project will follow then the evolution of the scholarship on those issues in both West Germany and Romania until 2009, as well as the way in which they are covered by the respective legislations (in Romania: the penal codes from 1936, 1968, 2004 and 2009; in Germany the ancient General Part from 1871 and the new one from 1975).

III. After 2009: Overcoming the Gap

The final objective of the project is to explore the possibility of applying the German functionalist approach to the Romanian traditional scholarship, i.e. to those structures and issues that were not directly changed by importing various German solutions during the 1990-ies and 2000-ies. This will be made in parallel with following the functionalist critics on the Welzelian constructs (eg the relation between conscience of the unlawfulness and intention). At the very end we expect to be able to present a basic system of crime theory built upon traditional Romanian basic structures (e.g. actus reus-mens rea and not: definition-unlawfulness-culpability), but responding equally to the needs of scientific updating which have determined fast two decades ago the opening of the Romanian scholarship on criminal law towards Germany.
C. Scientific Reports
D. International Workshop

Program (pdf)
Photo Galery

E. Publications

- T. Avrigeanu,„Savigny şi constantele dreptului”
Pandectele Române, nr. 10/2014

- N. Neagu, „The  European  Public  Prosecutor's  Office  -  Necessary  Instrument  or  Political Compromise?”
 „LAW  REVIEW  –  International  Journal  of  Law  and
Jurispridence Online Semiannually Publications” (versiunea în limba engleză a revistei “Dreptul”), nr. 2/2013

- N. Neagu, „Aplicarea legii penale mai favorabile după judecarea definitivă a cauzei”
Publicat în revista Dreptul, nr. 11/2014

- I. Ifrim, „Unele reflecții cu privire la infracțiunea de comisiune prin omisiune”
Studii și Cercetări Juridice, nr. 1/2014

- T. Avrigeanu, „Constants of criminal law?”
Proceedings of the international conference ”New criminal legislation – important phase in the development of Romanian law”
 - Norel Neagu:
"European (Criminal) Law v. National (Criminal) Law – a Two Way Street", Published in Law Review, no. 2/2015, p. 46-66
BDI Publication:
- Tudor Avrigeanu: Constants of Criminal Law?
Article published in the volume “New Criminal Legislation - important phase in the development of Romanian Law”, Monduzzi Editore International Proceedings Division, 2014, ISBN 978-88-7587-709-5, p.31-34.
- Tudor Avrigeanu: Carl Schmitt si Mircea Djuvara: un dialog despre spatiu si idee politica in dreptul international
Article published in the volume “160 de ani de invatamant juridic iesean”, Hamangiu Publishing House, 2015, ISBN 978-606-27-0435-3, p. 293-303.
- Tudor Avrigeanu: Categoria iuris. Știința dreptului ca știință politică
ISBN 978-606-673-757-9
- T. Avrigeanu, De la Marx prin Stein spre Hegel? Ion Gheorghe Maurer şi „constantele dreptului”, published in “Studii si Cercetari Juridice” nr. 4/2016 (Ebsco, Proquest)

- T. Avrigeanu, Pandectism socialist şi ordine sociala. Traian Ionaşcu, Eugen A. Barasch şi „problema constantelor dreptului”, published in “Analele Stiintific ale Universitatii Alexandru Ioan Cuza din Iasi”, seria “Stiinte Juridice”. Tomul LXII,vol.II (HeinOnline)

- T. Avrigeanu, Identitate sociala si istorie conceptuala in drept, published in “Pandectele Romane” no. 12/2016 (Ebsco, Proquest, HeinOnline).

- Tudor Avrigeanu “Știința dreptului ca știință politică”, ISBN 978-606-673-757-9, Universul Juridic Publishing House, Bucharest, 2016

- Tudor Avrigeanu (Editor) “German influences upon the romanian law a comparative approach / Influențe germane asupra dreptului românesc: o perspectivă comparativa”,  ISBN 978-606-673-756-2, Universul Juridic Publishing House, Bucharest, (forthcoming, March 2017)

- Tudor Avrigeanu, «KONSTANTEN DES RECHTS». Zum Verhältnis zwischen Rechtsdenken und Gesellschaftsordnung in Rumänien, ISBN 978-606-673-975-7,  Universul Juridic Publishing House, Bucharest, (forthcoming, June 2017)