RS 25

Thus, he proposed that legislative assemblies first of all should define the general content of the legislation so that “a panel of legal experts then could structure this plan of legislation”. Vinje had been a keen observer of the English political scene.On his travels in England, and through his friends among Norwegian legal scholars, he had been informed about the revival of Roman law in England. JohnAustin, John Stuart Mill,Henry Sumner Maine and a number of other famous writers regarded Roman law as a model for modern societies.15 In his text on Schweigaard,Vinje had referred to John Stuart Mill as a witness for his doubt about the Storting’s ability to make systematic legislation.Most likelyVinje thought of Mill’s Representative Government (from1861) where Mill had discussed the role of democratically elected national assemblies. Mill had concluded that such political bodies were unsuited for “the direct business of legislation”.16This task ought to be carried out by a “committee of very few persons”; only a committee of legal experts would be capable of fitting new legislation into a “consistent whole with the previously existing laws”. One had – Mill argued – to distinguish between “the element of intelligence and the element of will”, as the first element secured order and system of law, the last secured democratic legitimacy. Democracy was an important and undisputed part of the organisation of the state, but must be coordinated within the norms of professional expertise. One of the more conspicuous traits in the European legal order in the second half of the 19th century was the connection between the increased importance of the court and the democratization of the constitutional legislator.The need for legal change, driven by what was perceived as the necessity of modernisation, was a common way of regarding the new condition of law.The texts on legal methodology and legal historical literature were supplemented with knowledge of the social sciences, and thus these texts reduced the cultural images of law which had been so important for the significance of Roman law in the modern legal science since the beginning of 19th century. Still, the figure of Praetor was a convenient model for the thematization of the balance dag m i chal s e n 185 15 Michalsen, “Ideologies of Roman Law in Norwegian and English Legal Science in 19th Century” in: Quaderni Fiorentini (2006) pp. 225-253. 16 Mill, Considerations on Representative Government (1861; Oxford 1975), Ch.V. III

RkJQdWJsaXNoZXIy MjYyNDk=