therefore, the functioning of the division of power in modern society did not satisfy the constant needs for legal change. In Rome however, Bryce claimed, they had solved this problem. Such statements were to be found in a number of texts around Europe at the turn of the century. So I return to Norway.The leading Norwegian legal scholar and twice prime minister Francis Hagerup (18581921) argued along similar lines as Bryce in favour of the contemporary relevance of the Roman Praetor. But there were differences as well. The strength of the Norwegian constitutionalism and Hagerup’s preoccupation with the German debates on legal methodology structured his texts in a slightly different way. Hagerup did not openly question the constitutional exclusive role of the legislative parliament; acknowledging the constant processes of social change, he aimed at discussing how to coordinate the legitimacy of the Legislator with the role of legal expertise and legal science. As Bryce, he was worried about the lack of interest showed by Parliament for the systematic aspect of the legislative business (and both knew about these matters from long personal experiences).The problem was, according to Hagerup, that the court with good reasons was not allowed to be legislative creative, and he opposed the views of the German free law movement.32 In the figure of the Roman Praetor,Hagerup diagnosed the methodological dilemma of the constitutional principle of division of power. Rome simply did not have this problem as the Praetor was offered legal space for a systematic legal application of the knowledge of the juridical expertise. Still, Hagerup was tempted to bring the Roman Praetor into the realm of politics.33 Also in issues characterized by much political conflict there might be a need for the Praetorian function. Differences between the content of positive law and what he called “the moral opinions of the people” could easily lead to “Catastrophes (Revolutions)”. To level these differences in a constitutional correct manner, carried out by a body with legal expertise and a more flexible institutional form than that of the modern legislator, how could this be re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 190 32 See in particular the major text Hagerup,“Nogle Ord om Forholdet mellem positive Ret og Retsanvendelse” in: Tidsskrift for Retsvidenskab 1915 pp. 16-77. 33 For the following see Hagerup, ”Det psykologiske Grundlag for Retten” in: Tidsskrift for Retsvidenskab 1907 pp. 1-14. V
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