Police and Application of Law (Some Thoughts on Basic Terms)

Abstract

The present paper is a preparatory study, which examines two basic, interrelated issues: the concept and the meaning of ‘law enforcement actions’ and the ‘application of the law’. One of the main objectives of the paper is to discuss the current situation in the science of police. We should keep in mind that police is part of public administration, and its actions, the law enforcement activities belong to public administration’s actions. In a constitutional state governed by the rule of law, the public administration operates under the law. This requirement applies to both law enforcement in general and the application of law in policing activities. When we examine the law enforcement activities, on the one hand, they should be also discussed as actions of public administration, policing activities under the law. On the other hand, by analysing these issues, current important aspects of public administration are discussed. Therefore the paper first defines the notion of police given by Hungarian scolars. This part of the paper also includes a comparative analysis of the German and English literature regarding what is considered to fall within the scope of law enforcement or police activities. Secondly, the paper examines the concept of application of law in the context of legal interpretation and legal reasoning. It is defined in the paper as a decision-making activity that concretises and individualises the general norm (the law). We should note that this is mostly the case when an organ (court, administrative authority, police) authorised under law acts in a procedure defined by the law. It is important to underline that from a theoretical approach the application of law and the interpretation of law can be understood as one action. We should highlight that according to some concepts, the objective part of the application of the law is the interpretation of the written legislation, which in some cases explains the gaps of law. At the same time, the subjective part of the application of the law is the logical, psychological and other elements of the process in the judge or in the administrative official, from the establishment of the facts to the application of the law in the case. It should be stated that this second approach is a less researched area, also analysed in the paper.