Law as Danger-prevention Law

• Author: Mait Laaring
• Position: Adviser to the Chancellor of Justice
• Pages: 197-205

197

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 suff‌i cient

justif‌i 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 suff‌i cient grounds for probable occurrence

of damage.*5 Suff‌i 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 def‌i ned in the legal theory as a specif‌i c danger.

5 See about the concept of specif‌i 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.