RB 65

derstands the handling of cases by the courts and authorities as constituting the real rules of law.187 At the apex of law one finds constitutional law; the body of law that governs the state’s organization on a general, comprehensive level.188 Since the fundamental laws contain the rules stipulating how legislation is passed (rules of action and of competence), these rules then become fundamental in the law-making process. On the lower levels of law, the violation or deficient maintenance of law is presupposed, which is illustrated by the fact that (at the time) Swedish judges on all levels could be prosecuted for miscarriages of office and breach of duty.189While on the other hand, the fundamental laws, the constitution, lack applicable rules for their enforcement in the case that these rules have been violated or not maintained by the superior organs of state, which is due to the fact that the maintenance of these rules is taken for granted in the system of rules itself.190 This is a dubious supposition of the will-theory, a supposition necessitated by the fact that if there is a failure to maintain the fundamental laws themselves, then this would indicate a basic defect in the general enforcement of the system of law191 - which in turn weakens the respect for the legal order as such. In general, all rules of law are addressed to the authorities of state, and are both rules of action and of competence.The first class of rules defines and prescribes how the authorities, defined by the second class of rules, shall act.192This is true for both the rules of private and public law (including penal law).Accordingly, both - albeit to a large extent optional (Swedish: dispositiv) rules of private law, as well as, to a large extent obligatory, rules of public law (administrative, procedural, penal, and constitutional law) - p a r t v, c h a p t e r 3 350 187 Hägerström, “Stat och statsformer (1921),” p. 209. 188 Ibid., pp. 210-211. 189 Ibid., p. 206. See Strafflagen (1864), kap. 25 (the Swedish Penal Code[1864], Chapter 25). 190 Ibid., p. 211. Cf. Hägerström, Magistratische Ius, p. 2. 191 Hägerström, “Stat och statsformer (1921),” p. 211. 192 Ibid., pp. 212-213.

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