done? “In this respect it would of course have been of great importance if there had existed institutions in society - as for example the Roman Praetor – which could have a more instant access to adapt the legal rules according to changing non-material and material needs”.34 As Bryce, the politician and elite lawyer Hagerup had problems with the contemporary party-driven politization of legislative issues which they identified as topics mainly for the legal expertise to tackle. Paradoxically Hagerup’s concerns for maintaining a living constitutionalism led him to suggest a new body, which would have a formal constitutional basis, but which was without doubt politically doomed. Hagerup’s views on the Roman Praetor addressed the relationship between democracy in the meaning of popular rule and the role of legal scientists as legal intellectuals in upcoming democratic societies. This touches upon the issue of the structure of legal production.Authors like Bryce and Hagerup were not per se critical to popular rule in general, sooner, if anything, they were critical to certain historical consequences of democracy. The legal elitist vision of 19th century constitutionalism was for most parts combined with modes of a minimalist democratic theory.This democratic theory was partly a result of the conflicts between majority rule and entrenched civil rights, mainly concerning property and taxation. But it was also the result of the role of education and expertise in a modern mass society. The legislative role of Praetor seemed to have fascinated a number of legal scientists throughout the 19th century.There were chiefly two reasons for this attitude: Firstly, the cultural normativity that was imbedded in contemporary understanding of Roman law and the cult of antiquity of the 19th Century make us speak of a certain legal cultural metaphysics. Secondly, and what has been the theme of this article: The scientists were very much preoccupied with the interconnections of legal development, legal expertise and new forms of democratic politics. Thus, the relationship between law and politics, partly as a dichotomy between the academic and political legitimacy in the law-making dag m i chal s e n 191 34 “I denne Hennseende vil det selvfølgelig ogsaa være af stor Betydning, om de i vedkommende Samfund bestaaende Institutioner – saaledes som f. ExTilfældet var med det romerske Prætur – byder en let og hurtig virkende Adgang til at afpasse Retsreglerne efter vexlenede ideelle og materielle Behov”. VI
RkJQdWJsaXNoZXIy MjYyNDk=