Whose voluntas, what ratio? Law in the state tradition

Abstract

Post-national developments have questioned the dominance of state will and lead to an increasing separation of the institutional locus of legal voluntarism and coercion. However, this article discusses “state tradition” as a legal mind-set; as an ingrained approach to law, which may linger in our legal Vorverstandnis long after post-national developments have challenged its seemingly self-evident premises. The article examines the Kelsenian and the Hartian variants of legal positivism as theoretical expressions of this tradition. The article also argues that state tradition has been, and still is, much more powerful in public than private law. Finally, it is suggested that although the state tradition is unable to chart the post-national lawscape, it may still be of use in the construction of an ideal-typical general concept of law which we need when embarking on an examination of a legal world inhabited by instances of not only state law but non-state law as well.