Apology for the Theory of the State and Law: A New Concept of Law and Justice in Modern Legal Communication

• DOI: http://doi.org/10.1111/raju.12224
• Author: Werner Krawietz
• Date: 01 December 2018
• Published date: 01 December 2018

© 2018 The Author. Ratio Juris © 2018 John Wile y & Sons Ltd

Ratio Juris. Vol. 31 No. 4 December 2018 (421–427)

Apology for the Theory of the State and

Law: A New Concept of Law and Justice

in Modern Legal Communication

WERNER KR AWIETZ

Abstract. Concernin g the need for a new conception of lega l theory one quest ion arises,

above all, especial ly when external and intern al observation as well as the cr itical reflexion

on the premises a nd presuppositions of all dealings with t he law permit a degree of di s-

tance, the question, na mely, whether it is not an increasing application of sc ientific methods

that is needed, in the s ense that the development of a theory from the b eginning involves

the integration of a norm- descriptive point of view a nd intellectua l standpoint with the

norm- prescriptive the ory of law, by way of complementing each other, as it were (multi-

level approach to law). This, at least, appears to be the only way of als o clarifying the rel a-

tionship betwe en legal theory and ph ilosophy and the theor y and sociology of law. The

inevitable consequen ces of the development of a theory of norms and act ion also have to be

drawn from thi s.

1. New Research Project : Comparative Civilisations and L egal Theory

My approach to the notion of law and justice, especially in t he European tradition,

is from the point of view of a general theory of the state and law. In what follows I

shall disti nguish between (i) justice according to law, (ii) justice against law, and (iii)

justice beyond law. My focus is on the first position, justice according to law.

(1) The new concept of law and the notion of justice in modern legal systems does not

answer the question of whether there exists a unity of just ice according to law or

beyond law among the different normative levels1 at which justice may be pre-

scribed, including t he religious, moral, political, economic, cultural, and legal levels

to which we may refer as a unity.

(2) From the point of view of a general legal theory, it does raise the question,

however, about the relationship between the state and law in this situation. The

above-mentioned developments and turbulences apply particularly to the central

European state legal systems, especia lly to the German Rechtsstaat [state based on

the rule of law], whatever that may be.

(a) We should not be satisfied with simply describi ng and interpreting t he re-

spective developments in the individual legal systems on the basis of constitutions

1 Normative levels are comprehensively exa mined in Kraw ietz 1999, 70f., 81ff. Cf. Krawietz

2008, 194f f.