Law as Danger-prevention Law

Author:Mait Laaring
Position:Adviser to the Chancellor of Justice
Pages:197-205
 
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JURIDICA INTERNATIONAL XX/2013
Mait Laaring
Adviser to the Chancellor of Justice
Estonian Law-enforcement
Law as Danger-prevention Law
1. Introduction
The reform of law-enforcement law has planned Estonia’s new Order Protection Act*1 (OPA) mostly on the
basis of the dogmatics of German law-enforcement law. Although the fundamental choice to use foreign pat-
terns has sparked some controversy*2, the author of the present paper does not intend to reopen the dis-
cussion on the model of law-enforcement law most appropriate for Estonia; rather, the intent is to exam-
ine the developments that the new direction has brought about in a narrower branch of law-enforcement
law—namely, danger-prevention law. The fact that danger-prevention law has been perhaps the most rapidly
developing part of German law-enforcement law in recent decades, its legal-theoretical nature and practical
implementation having generated a great many problems in comparison to traditional danger-countering law
and having fundamentally altered the dogmatic form of law-enforcement law, can be considered suf cient
justi cation for focused analysis of this area.*3 It is clear that if we are to accept the main features of the Ger-
man model of law-enforcement law, the Estonian legislator cannot ignore the changes that occur within this
model over time. Hence, it is also relevant to analyse the nature of the danger-prevention part of Estonia’s
new law-enforcement law.
2. The theoretical bases of danger-prevention law
and its difference from danger-aversion law
Historically, the most characteristic feature of the Germanic legal tradition’s law-enforcement law model
has been the fact that it proceeds from the concept of danger*4 as suf cient grounds for probable occurrence
of damage.*5 Suf cient grounds means (if we simplify a little) that upon assessing the situation an objective
observer becomes convinced that damage is inevitable if the causal chain runs its course unchecked. The
1 Korrakaitseseadus. – RT I, 22.3.2011, 4 (in Estonian).
2 See for instance V. Linde. Korrakaitseseaduse eelnõu probleemidest [‘About the problems of Order Protection Act’]. – Riigikogu
Toimetised 2008 (17), pp. 45 ff. (in Estonian).
3 See, for example, M. Möstl. Die neue dogmatische Gestalt des Polizeirechts. – DVBl 2007, Heft 10, pp. 581 ff. Such develop-
ments have been described in numerous ways in German legal-theoretical literature—e.g., as a shifting of the focus of security
policy to the preliminary territory (of danger); the erosion of the danger threshold; prevention II (see Note 7, below); or,
more broadly, the development of a ‘new’ police law.
4 More accurately, this is de ned in the legal theory as a speci c danger.
5 See about the concept of speci c danger in German law-enforcement law for instance F. Schoch. Polizei- und Ordnungs-
recht. – E. Schmidt-Aßmann (ed.). Besonderes Verwaltungsrecht, 14. Ausgabe. Berlin: De Gruyter 2008, p. 156.

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