Abstract
Critical legal research, that is, research that questioned the dominant legal-dogmatic paradigm, experienced a heyday in many places in the world during the 1960s and 1970s. The Nordic countries were no exception: here too, the barb of critical discussion pointed at the way legal research was being carried on. The normativity of legal science and its isolation from social reality were criticized in terms that were partly, but only partly, reminiscent of the attack of the American realists some decades earlier on traditional “law in books”.1 At the same time, critical discussion in the Nordic countries was also receiving strong impulses from Marxist legal theory.
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The demand of the American realists for reform of legal studies, for integration of material from other social sciences with legal science, for a study of the law in its social context, for a re-systematization of legal problems in line with the problem complexes occurring in real life, and so on, are very familiar to a participant in the Finnish legal debate of the 1970s. On this comparison, see Wilhelmsson 1976.
Perhaps the chief example in Finnish doctrine of a total denunciation of the traditional presentation of the problem - what is the standpoint of valid law? - is Kivivuori’s noted doctoral thesis on the development of the law of torts (1969), specially page 26.
An important starting point for this discussion, which has been carried on chiefly in the columns of the journal Retfaerd, was Eriksson’s draft for a Marxist jurisprudence (1979), later deepened in his doctoral thesis on Marxist theory and legal science (1980).
This line of thought was introduced into the Finnish discussions through Eriksson’s article on the Magistratura democratica and the Italian lawyer opposition (1977).
Now worthy of mention as another such concrete study in Finnish law is Pöyhönen 1988. Outside the Nordic countries there naturally exist such applications of alternative legal-dogmatic theories: an eminent example is Reifner 1979.
Reference is made here to Habermas’ (1968) description of the three basic interests of knowledge: a technical interest, whose purpose is to give man the tools to control his environment, a hermeneutic interest through which one strives to understand texts and cultures, and an emancipatory or liberating interest.
This realization is of course not the sole property of the “alternative” or “critical” jurists: in many legal cultures, as for example in Finland, it is fairly generally accepted - at least among legal theoreticians. For this reason, among others, e.g. Tuori 1988 p. 201 ff. has queried the difference between alternative legal dogmatics and at least some parts of the dominant legal-theoretical discussion.
A central postulate of American Critical Legal Studies supporters is “the Indeterminacy of the Law”. See on this, e.g. Yablon 1985.
Reifner 1979 p. 68 ff. Also Eriksson 1980 p. 108 f. starts partly from a fundamental criticism of the kind meant here, when he links different models for legal argument to the development of the societal base: the subsumptional-logical model of argument corresponds to the exchange-value rationality of early capitalism while the goal-rational and need-rational models have their roots in the competing use-value rationality of late capitalism (see below III.3.1).
D Dogmatics of this type is therefore also vulnerable to a postmodern deconstructivist critique which stresses the unavoidability of a conceptual duality in our discourses. Every view put forward has a suppressed “dangerous supplement” which undermines it. An interesting analysis of American contract law based on a critique of this type has been presented by Dalton 1985, who stresses inter alia the impossibility of separating public from private in contract doctrine.
See Atiyah - Summers 1987, who have attempted to show that this very difference obtains between the more formal British law and the more substantive American law.
Cf. also Zinke 1982, p.163 ff., who considers just this concretization of the parties a precondition for a “political” way of arguing in private law.
Broekman 1986 (the quotation from p. 85) maintains the existence of this “gap”. He himself appears to assume that it cannot be bridged. This is one reason why “alternative dogmatic figures” only “bring about changes in the sense of a contextually sufficient justification”, not “in the sense of deep justification” (p. 94 ).
Cf. the concept of “Social law” in Ewald 1986, used in a broader sense as an umbrella term “for the legal practices that typify the Welfare State” (p. 40).
The social-security function of private law - and primary of the law of succession - are analysed in Kangas 1982.
As Atiyah-Summers 1987 state on page 416 as a conclusion to their comparative analysis of form and substance in English and American law: “It now seems to us that legal theorists would do well to approach many of the standard questions of jurisprudence at a lower level of abstraction, a level that at least takes account of basic variations in the phenomena of law from system to system - such as variations of valid law, in the role of judges, and in the methods of statutory interpretation
To give but one example: When the Danish scholar Lyngse in his thesis of 1971 on the right to cancel a contract (p. 2 ff.) speaks of “Danish and Nordic law” as opposed to “foreign law”, this is entirely consonant with the prevailing juridical paradigm.
The old Swedish-Finnish code of 1734 is casuistic and today of very little importance.
What are called “goal reasons” in Summers’ well-known distinction between rightness reasons and goal reasons. See Summers 1979.
The concept of formality is here used in the same sense as in Atiyah - Summers 1987.
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© 1992 Springer Science+Business Media Dordrecht
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Wilhelmsson, T. (1992). Introduction. In: Critical Studies in Private Law. Law and Philosophy Library, vol 16. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-8028-1_1
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