the organs of state are under the analogous obligation, whenever the need arises (when so-called hard cases are at hand, or legal loopholes are discovered, or when the rules of law are ambiguous, or even silent) to decide cases through the creation and application of a new rule, which amounts to an obligation to make new law when required and to do so with reference to the spirit of the existing rules - that is, with reference to the public interests served by the existing rules. However, in either case (that of direct application and that of application by means of the creation of new rules) the decisions of the organs of state, if such decisions are to become part of the system of rules as precedents, case law, or custom, must be formulated as if governed by public interest. In conclusion, the organs of state, which themselves are both defined by law and have their activities and actions prescribed by law, are bound to respect the doctrine of legal sources. Hence, the organs of state are under an obligation to adhere to that specific model of argumentation, or method, providing their decisions, conclusions, and findings with maximum legitimacy, which in turn transforms into a corresponding level of legal authority. The sought-after form of legitimacy is achieved through the validation of the aforementioned decisions, conclusions, and findings by reference to, as well as in respect of, the sources of law. A tacit supposition of Hägerström’s is that the obligations of the organs of state can only exist in a society governed by the rule of law, because in those societies ruled by despots or mobs, the courts of law can never be expected to act in such a relatively autonomous and objective manner. Hence, the theoretical description of the activities and hierarchical relationships of the legal order provided here carries over into a specific method and theory for the application of law and the making of law by the courts and other competent agencies besides the legislator. p a r t v, c h a p t e r 3 352
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