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Modern solidarity and administrative repression
Authors: Professor Dan Claudiu DĂNIȘOR; Associate professor Mădălina-Cristina DĂNIȘOR
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Modern society is based on the predominance of organic solidarity over mechanical
solidarity and, consequently, on the predominance of the law, which ensures cooperation
between autonomous subjects from repressive law, which sanctions, through penalty, any
deviation from the standards of the common conscience. Modern society is “civilized”, i.e. it
is firstly and foremost based on “civil” law, the repressive law only being exceptional, which
translates into three principles: that of the subsidiarity of criminal law, that of the necessity
and legality of offences and penalties, and that of the additional protection of individual
freedom when the subject is criminally charged. The consequence thereof is that, in modern
liberal democracies, all repressive law is criminal, that any charge which may lead to the
application of a repressive sanction is a criminal charge and that the law-maker cannot
assign to the administration the competence regarding the application of repressive
sanctions. Under these circumstances, the transformation of some repressive norms into
norms of administrative law is a violation of the fundamental principles that structure the
legal order of modern liberal states. Nonetheless, this type of practice is becoming more
common. In order to ensure individual freedom, this tendency must be corrected. As
politicians are not willing to do so, naturally this is a task for the judicial courts, that can
rely for this endeavour on the European Court of Human Rights’ constructive jurisprudence.