A contemplation of values in law and their limits

Matthias Wasinger

 

The current crises in the front court and/or directly in the European Union - from Donbass up to the so-called refugee crisis as a present-day migration of the peoples towardsCentral Europe- have triggered a discourse of values once again. Based on historical, cultural, philosophical and religious differences, there is the question both of Europe’s potential for solving conflicts as well as the possibilities of integration. Whereas the European Union defines itself fundamentally by democracy, rule of law or tolerance, one can detect an obvious reflexion on national political realism at the moment. But what about our values in Austria? How are they embedded in our nation?

The legal order as well as its character in a state must be seen as the central element. This essay examines this very aspect in the sense of interdisciplinarity between law and the military. This is necessary because overall challenges require overall national solutions, which in turn are based on interdisciplinary considerations. To summarize, it must be said that values - despite originally intentional counter-attitude - do hold a substantial position in the Austrian legal order. The universality of terms of value, however, does not mean freedom of replenishment, but obligation to intentional assessment. Thus, fundamental rights become not only barriers, but also directive values for legislation and its fulfilment. Whether wanted or not - law always gives value, or presents it as such. From this essay’s author’s point of view, even the deliberate renunciation of values in a legal order represents an assessment, as it either negates the necessity of it, or - as in the case of Hans Kelsen - it communicates the mistrust of values as elements of law. Kelsen’s attempt at keeping away values (thus also politics and ideology) from law in the framework of jurisprudence, thus rendering it scientific, can be understood as far as its intention is concerned, but with the step from theory to practice at the latest, such a radical separation appears illusive, at least because of the reasons mentioned above. Nevertheless, Kelsen’s Pure Law Doctrine has been considered an impressing masterpiece up to the present day, strikingly depicting consequent and pointed right-winger positivism. Without this work, modern legal theory would be unthinkable. Although it cannot be understood in its intended consequences, it contributes to the evolution of right-wing positivism. Finally, it has to be stated that - like in every law theory - there are fundamental demands of the practising state as far as the functioning implementation is concerned. In the case of right-wing positivism with a tendency towards Kelsen’s Pure Law Doctrine, as it is applied inAustria, this demand is education - education for politics and population - in order to be able to use the instruments of the state in accommodated way. The implementation of values in the Austrian judicial power from 1970 onwards led to an evolution in jurisdiction which needs prominent corner pillars. In this framework the jurist can, shall and must manoeuver freely in the sense of the whole.