Chapter 14 From the Constitutional State to the Welfare State
The development of society has often been described by the following axis: agricultural society - industrialised society - post industrial society - information society (Aarnio 1989b, 114).
This axis offers many clues as to where we have been and where we are probably heading. However, as regards the topic of this study, it is more fruitful to choose another point of departure that elucidates the function and task of DSL better than the above-mentioned axis: the status and future of the Constitution - that is, the Rule of Law State. It is typical for lawyers to anchor their thinking in the basic elements of the Constitutional State. Many essential features of DSL, as well as adjudication, are crystallised in the rule of law ideology, which distinguishes lawyers from other professionals close to the field of law (Aarnio 1989b, 126). Briefly, the particular aspects of the rule of law ideology that are important for this study can be described as follows:(1) In a Constitutional State, legal relationships are organised according to general norms, not according to decrees on singular cases, as was the case in the Middle Ages - e.g. in societies ruled by monarchical regimes.
(2) The doctrine of the separation of the State powers guarantees the (formal) independence of the courts of justice.
(3) In a Constitutional State, the individual is not only protected against another individual but against the State or other public power as well. This led, among other things, to the adjudication of administrative issues. The rights and duties of the State were also determined.
(4) A special profession - i.e., lawyers - was created to take care of legal issues. Before the era of the Constitutional State, issues were often taken care of by people other than professional lawyers.
(5) Certain basic principles like audiatur et altera pars, reformatio in pejus and nulla poena sine lege protect the position of an individual in cases where no exact statues are available.
(6) The forms are in the key position in the Constitutional State - as an example, the principle by which the formal (not substantial) equality among people has to be guaranteed.
(7) Legal thinking must be detached from the moral and social aspects. This positivistic principle means that law must not be intermingled with morality. One can criticise law as bad or immoral, but as long as this law is formally valid one cannot disobey it by appealing to moral reason.
It is obvious that this list only consists of a minor part of the principles belonging to the foundation of the Constitutional State. It is equally obvious that the rule of law ideology has not been realised anywhere in its pure form. Still, all the basic elements of this ideology are crystallised in the above principles.
However, the world has vigorously changed, especially since World War II. Many countries, among them all of the Scandinavian countries, have entered the phase of the so-called Welfare State, although the worldwide financial crisis has made it difficult to maintain even the core elements of that kind of State. Without taking any stand on the economic or social side of Welfare States, some main features, important to the tasks of DSL, must be identified (Aarnio and Peczenik 1995, 142):
(1) The formal concept of law is increasingly accompanied by an emphasis on its substance. One of the main goals has been to increase the quality of life, and thus the purpose to decrease the inequality among people. Following Max Weber, one can speak about the materialisation of law. Connected to this trend, there is, for instance, a clear change in the norm structures. The strict rule had to leave space for all kinds of elastic norms.
(2) There is, however, another, and much more important, change going on in all Welfare States: the rise in human and basic rights. The consequence of this trend is the strengthening role of the (legal) principles. In a modern Constitutional State, human and basic rights are a necessary element of not only the rule of law ideology but also of the notion of democracy.
We can speak about a democratic Rule of Law State in cases where human and basic rights are protected.(3) The change in the norm structures is reflected in the methodology of DSL as well as the thinking procedure of the judges. As we will see, DSL in a modern Rule of Law State has two different methods available, depending on whether the subject matter is a rule or a principle. In the first case, the method is the traditional statutory interpretation, whereas in the case of principles the method is weighing and balancing. In other words, the classical syllogism has lost its role as the basic model. Instead, DSL has to use either rational argumentation or methods applicable to principles.
According to point (1), the law of the Welfare State is “soft” compared to that of the Rule of Law State. The idea of the Welfare State is to make it possible to adjust the provisions to the circumstances of the case. The more the economic and the social safety of citizens is in danger as a result of the economic crisis, the more important is the legal certainty. Actually, legal certainty is one dimension of the welfare. This means that the role of law as a safety mechanism in society is becoming a challenge for DSL as well. Scholars as well as judges must have tools to answer to the challenge. As we will see, the tool is a many sided rational discourse that produces well founded and, at the same time, just solutions to the hard cases as well.
All in all, the development of the Welfare State has caused clear changes in the old model of the rule of law ideology, or, in other words, the old model goes side by side with the development of the Welfare State. The substance of the law is becoming increasingly more important, and at times it even replaces the form of law. However, it would be an exaggeration to maintain that the Constitutional (or Rule of Law) State has disappeared. That is not true. It has only adapted to a new societal situation, but, considering the circumstances, it is still doing quite well.