Roumanian Jurisprudence


LAW is often described as the embodiment of custom. Roumania interestingly illustrates that there must at least be a close harmony between law and custom. More than most countries it has experienced abrupt changes of custom and the necessity of corresponding legal adaptations.

Originally colonized by the forces of the Emperor Trajan, Roumania bears in its legal system the distinct traces of Roman thought and Roman law thus originally impressed upon it. Following, however, the decline of the Roman Empire the country was overrun with Slavs retreating before the Mongol invaders from the East. This Slavic element necessarily introduced many Slavic customs and religious viewpoints, which in turn led to an adjustment of the juridical concepts of the country. Thus the Roumanian jurisprudence of today flows primarily from two distinct and totally different origins—the Roman and the Slavic. These basic ingredients have subsequently been molded by many different hands without impairment, however, of their respective virtues. In the seventeenth century the Penal Law of Moldavia was recodified by Basil the Wolf on the principle of an eye for an eye and a tooth for a tooth. The perpetrator of arson was burned to death, while one guilty of mayhem was mutilated. In the eighteenth century a Greek cultural invasion took place which left many traces in Roumanian jurisprudence. A century later, with the struggle of the Balkans for independence, there developed a wide enthusiasm for Western culture. This led to the adoption, almost verbatim, of the Code Napoleon and French Penal Code. Naturally, however, these Codes, framed for application in a totally different community, proved somewhat unworkable when sought to be rigidly applied to the mixed Roman and Slavic concepts which had theretofore developed in Roumania. It quickly proved necessary to adapt the Code Napoleon and the French Penal Code to Roumanian conditions. As a result of careful legislation, and able and flexible judicial application and interpretation, there has gradually and surely been developed, out of the mixed elements which we have briefly reviewed, a modern body of law consonant with the customs and point of view of the community and embodying the best elements of the several sources.

The greater Roumania which arose out of the war faced anew the problem of maintaining a unified body of law acceptable to peoples of different customs and viewpoints. For while the added, territory was preponderantly Roumanian both racially and in its sympathies and national aspirations, nevertheless, many portions of the added territory had so long been under foreign subjection that the impress of foreign customs has been definitely left upon the people. In Bessarabia we again find important Slavic traditions and habits not modified by subjection to Roman or French influence. In other portions the Magyar influence has left traces.

Special commissions have now been organized by the Roumanian government to study the legal condition of each of the new territories and the peculiar problems involved in working out a system of jurisprudence which will permit of substantial uniformity throughout the Kingdom, without impracticable conflict with local customs and traditions. There is, happily, a definite recognition of the viewpoint that legislation to be effective and respected must conform to the customs of the people, and that the jurisprudence of pre-war Roumania cannot arbitrarily and rigidly be applied to all the peoples who are now joined in greater Roumania.

The new Roumanian Constitution of March 28, 1923, is a constructive and forward looking document. It shows that Roumania has the genius to adapt to modern use the finest concepts of Roman, Greek, and French jurisprudence. It affords ample assurance that the juridical problems of the country will be successfully solved in the future as in the past, and that throughout the new Roumania there will be a body of law sanctioned by popular support and designed to ensure to Roumanians and to foreigners the impartial enjoyment of those rights of personal liberty and of property which are characteristic of the best in modern civilization.