do not differ on a fundamental level, for in both cases the rules of law decide who and how certain subjects shall act.193 However, there exists a decisive difference between the systematic areas of private and public law centering on the rules of competence and the rules of conduct (as these refer to the organs of state and private individuals).To start with, one must define the relevant categories.According to Hägerström’s analysis, the two groups of legal subjects are defined as follows: the organs of state are legal persons whose acts create rules of conduct that become part of the system of rules, law, while all other legal subjects are private subjects of law.194 What distinguishes the organs of state from private individuals in this respect is that private individuals are at liberty to agree freely upon what the rules of action shall contain and how these rules shall be formulated, and to do so without reference to any principle other than the protection of the private individual’s interests, while the organs of state must observe certain objective facts (such as social and political considerations) when choosing, formulating, and applying rules of action.195 Hence, the organs of state (according to law) must adduce existing rules of conduct in the administration of justice, either directly or indirectly (and in the latter case the public good, public interest, or equivalent is what must be adduced as being ultimately determinant for the organ of state’s decisions), while private persons need not adduce any other rule than self-interest.196 The organs of state are under an obligation to decide the case before them,197and when doing so only by adducing those rules of action that already exist and belong to the system. “Er [der Richter] kann vielmehr nur so gebunden sein, dass er nach den betreffenden Regeln zu richten verpflichtet ist.”198 Furthermore, a ca l l f o r s c i e n t i f i c p u r i t y 351 193 Private law: Ibid., pp. 201-207. Public law: Hägerström,“Stat och statsformer (1921),” pp. 207-213. Cf. Hägerström, Magistratische Ius, pp. 1-5. 194 Hägerström, “Stat och statsformer (1921),” p. 213. 195 Ibid., pp. 213-214. 196 Ibid., pp. 214-215. 197 Cf. prohibition of so-called deni de justice. 198 Hägerström, Magistratische Ius, p. 3.
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