Abstract
In this chapter I present the purpose and the methodology of my investigations more precisely. These are (i) to clarify the basic concepts of law-state thinking (I take pains to explain what I mean by “clarification”), (ii) to describe possible value conflicts between the law-state values and between them and other social values (investigations to be used in subsequent chapters), (iii) to investigate how the law-state values can be realised by means of the juridical technique and (iv) to present my method of justifying these values (the contrast-method). The four basic law-state values—legal equality, legal certainty, legal accessibility and legal security (each later devoted a chapter of their own)—are presented. The most serious problem of law-state thinking is what I call the law-state paradox—that the state shall protect the individual against the state itself. Here the idea of separation of power come to the fore. I also investigate the relation between law-state thinking and the ideas of democracy, judicial review and power restriction. Finally I argue that the law-state values can be justified only by reference to an even higher value, the humanistic idea of, what I call, “a life of human dignity”.
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Notes
- 1.
J.-J. Rousseau, Du contrat social (1762).
- 2.
About the methodological program of explication, see R. Carnap, Logical Foundations of Probability (1951), p. 3–4.
- 3.
W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (1923).
- 4.
G.H. von Wright, The Varieties of Goodness (1963) pp. 4–6. Cf. G.H. von Wright, Norm and Action (1963), p. 48: “In ordinary language, it seems, the words ‘act’ and ‘action’ are used pretty much as synonyms. The philosopher is free to give to the two words different meanings for the purpose of marking some conceptual distinction which he thinks important”. See also p. 113.
- 5.
G. H. von Wright, “Valuations—or How to Say the Unsayable” ( Ratio Juris, vol. 13, 2000, p. 348 f.).
- 6.
Ibid. p. 357.
- 7.
By C.L. Stevenson, Ethics and Language (1944), where the mechanisms directing the use of them are brilliantly analysed.
- 8.
Compare the critical attitude with regard to definitions in this inflating fashion of the term “the rule of law” in J. Raz, “The Rule of Law and its Virtue”, in Raz, The Authority of Law ,1979, Chap. 11. In R. Summers, “The Ideal Socio-Legal Order. Its ‘Rule of Law’ Dimension”, Ratio Juris, Vol. 1, 1988. pp. 154–161, esp. at pp. 154–155 and 160–161 is advocated, in the same vein, a “deflated” concept “the rule of law” as “one way of rehabilitating this ideal”. For the methodological difficulties connected with definitions of value-loaded concepts see also D.N. MacCormick, “Der Rechtsstaat und die rule of law”, cit. supra n. 11, pp. 66–67.
- 9.
See, e.g., R. Alexy, Theorie der Grundrechte, 1985, and R. Dworkin, Taking Rights Seriously and A Matter of Principles, 1985.
- 10.
It has been argued that “use of principles with consideration” is very much the same as St Thomas Aquinas’ concept of determinatio; see J.M. Finnis, “On ‘The Critical Legal Studies Movement’” (1985) 30 American Journal of Jurisprudence, pp. 21–42, esp. at 23–5, and N. MacCormick, “Reconstruction after Deconstruction: A Response to CLS”, (1990) 10 Oxford Journal of Legal Studies, pp. 539–558, esp at 548–551.
- 11.
An insight I owe to Professor Ingemar Hedenius, Uppsala.
- 12.
J. Bodin, Les six livres sur la république (1576).
- 13.
C.L. de Montesquieu, De l’ésprit des lois (1748), livre XI, Chap. IV: “But it is a perennial experience that every man who has power is apt to abuse it. He goes as far as he can until he meets with limits… So that one shall not be able to abuse power, it is in the nature of things that power must check power” (my trans. and italics).
- 14.
J. Ely, Democracy and Distrust (1980), pp. 4–5.
- 15.
This prerequisite has been removed as from January 1, 2011.
- 16.
A. Adler, Über den nervösen Character (1912).
- 17.
Th. Hobbes, Leviathan (1651), Part I, Ch. XI.
- 18.
For excellent accounts, see A. Bullock, Hitler. A Study in Tyranny, rev. ed. (1962), and I. Kershaw, Hitler. 1889-1936 Hubris (1998), and Hitler. 1936–1945 Nemesis (2000).
- 19.
K. R. Popper, The Open Society and Its Enemies, Vol. 1, The Spell of Plato, 5th ed., 1966, pp. 99–106.
- 20.
Of which we find striking examples in M. Wolfe (trans.), Cut These Words into My Stone. Ancient Greek Epitaphs (2013).
- 21.
See further Å. Frändberg, “On the Relation between Law and State”, in Recht, Gerechtigkeit und der Staat. Rechtstheorie, Beiheft 15 (Berlin, 1993), pp. 37–44. Reprinted in Å. Frändberg, Rättsordningens idé [The Idea of a Legal Order] (2005), pp. 151–158. See further N. MacCormick, Questioning Sovereignty (1999), passim.
- 22.
About the use of ideal-type definitions in legal science, see Å. Frändberg, “An Essay on Legal Concept Formation”, in J.C. Hage & D. von der Pfordten (eds.), Concepts in Law, (2009) p. 6 f. As for the logical aspects of ideal-type definitions, see C. Hempel & P. Oppenheim, Der Typusbegriff im Lichte der neuen Logik (1936).
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Frändberg, Å. (2014). Prolegomena to the Clarification of Law-State Thinking. In: From Rechtsstaat to Universal Law-State. Law and Philosophy Library, vol 109. Springer, Cham. https://doi.org/10.1007/978-3-319-06784-1_3
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