1. Law
and
the
state
Journal
entry
08/10/2010
Steven
Lauwers
As
I
mentioned
in
our
lab,
I
am
confused
about
this
week’s
topic:
the
rule
of
law.
Not
particularly
about
what
it
is,
but
how
it
is
created,
managed
and
also
justified.
During
our
economics
lecture,
we
briefly
looked
at
the
principal
–
agent
theory,
which
gave
me
the
idea
for
this
journal:
it
might
be
interesting
theory
to
analyze
the
rule
of
law
via
this
theory.
The
result
might
be
a
bit
extreme,
but
the
thinking
exercise
is
certainly
worth
it.
One
of
the
main
messages
Professor
Preuss
wanted
us
to
take
away
from
the
Hart
text
is
the
idea
that
law
provides
a
framework
for
society,
that
modern
society
is
so
complex
that
laws
are
necessary:
they
provide
the
structure
of
the
game.
i
Let
us
look
at
this
idea
through
the
principal
–
agent
theory.
The
idea
is
that
the
principal
gives
the
agent
control
over
resources,
so
that
the
agent
can
manage
these
resources
in
the
interest
of
the
principal.
A
problem
occurs
when
the
agreement
does
not
provide
enough
incentives
for
the
agent
and
he
therefore
decides
to
use
the
delegated
authority
for
his
own,
rather
than
the
principal’s
interest.
If
applied
to
law
and
society,
we
could
say
society
gave
power
to
the
state
to
uphold
the
law.
According
to
A.
Supiot,
every
contract
needs
a
guarantor,
somebody
who
guarantees
the
agreement
will
be
respected
by
both
parties
(through
sanctions,
incentives,
…).
He
claims
in
modern
society
this
is
the
state.
ii
And
this
is
where
I
see
the
problem
in
the
relationship:
how
can
the
guarantor
of
the
contract
also
be
subject
to
it?
How
can
we
be
sure
that
a
state
will
not
abuse
this
position?
Where
last
week
we
learned
that
a
state
needs
rule
of
law
to
control
the
monopoly
a
state
has
on
force,
iii
I
now
wonder
who
controls
the
state
does
not
abuse
its
power?
Professor
Dr.
K.
Preuss
used
a
quote
in
his
lecture,
that
reflects
that
problem:
“Auctoritas,
non
veritas
facit
legem”
iv
(Th.
Hobbes,
1588
–
1679).
Have
we

2. moved
away
from
law
as
a
means
to
realize
good
and
avoid
evil?
Is
the
fact
that
law
is
based
on
authority
a
danger
to
society
or
can
we
just
assume
the
other
party,
the
state,
will
uphold
its
side
of
the
contract?
When
explaining
the
role
in
modern
society,
Professor
Dr.
K.
Preuss
quoted
A.
Dicey,
who
said
that
one
of
the
three
meanings
of
the
rule
of
law
v
is
equality,
equal
subjection
of
all
classes
to
the
(…)
law.
At
what
exact
moment
does
society
not
provide
enough
incentive
for
the
state
to
respect
the
agreement
and
put
itself
above
law,
rather
than
being
subject
to
it?
i
Hart,
H.
L.
A.
(1979
[1961]).
The
Concept
of
Law.
ii
Supiot,
A.
(2007).
Homo
Juridicus.
On
the
Anthropological
Functions
of
the
Law.
p.
93
iii
“A
compulsory
political
organization
with
continuous
operations
(…)
insofar
as
its
administrative
staff
successfully
upholds
the
claim
to
the
monopoly
of
the
legitimate
use
of
physical
force
in
the
enforcement
of
its
order”.
Weber
M.
(1978
(1922)):
Economy
and
Society.
An
Outline
of
Interpretative
Sociology.
p.
54
iv
Authority,
not
truth
makes
law.
v
Dicey,
A.
V.
(1982
[1915]).
Introduction
to
the
study
of
the
law
of
the
constitution.
p.
120.