“General Principles” as the Primary Object of Alternative Studies

  • Thomas Wilhelmsson
Part of the Law and Philosophy Library book series (LAPS, volume 16)


As was stressed in the Introduction, any model of legal dogmatics that is alternative in a deeper sense must direct attention to the way legal dogmatics systematizes its research object. This does not mean systematization in a merely pedagogical sense, but something more: the general principles and concepts of the legal order or the relevant branch of law stand at the centre of interest. These are the instruments with whose help the systematization is carried out.


General Principle Legal Order Legal Principle Legal Practice Legal Change 
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    Thus e.g. Tolonen 1973 p. 12.Google Scholar
  2. 2.
    When in such a definition interest is directed towards legal science, this does not of course imply depriving e.g. the legislation of importance as an influence on the general principles. It is obvious that the legislator, particularly through general regulation such as in the Nordic countries the Contract Act or, in German law, the general part of Bürgerliches Gesetzbuch, can guide the legal-scientific development of general doctrines.Google Scholar
  3. 3.
    They constitute the aids with which in Juha Pöyhönen’s terminology the legal order is transformed into a legal system. This distinction between legal order and legal system which has been stressed by Pöyhönen in various contexts will not be consistently employed in this book.Google Scholar
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    Granted that interpretation of the norm is presumed to be unproblematic.Google Scholar
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    An illuminating example can be taken from the West-German discussion regarding the development of rules of consumer law, where certain advocates of improved protection for consumers have stressed the danger that such rules, if included in the Bürgerliches Gesetzbuch, would be interpreted on the basis of obsolete general principles. See e.g. Damm 1978 p. 176; cf. however, regarding possibilities of influence in the other direction, e.g. Gilles 1980 p. 6.Google Scholar
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    It may be mentioned that the Finnish Supreme Court often formulates analogical inferences in such ways that the court claims support from a “legal directive” which emerges from a legal rule not directly applicable to the case (see e.g., as an example, HD 1969 II 18). The analogy, then, is explicitly given the following structure: inapplicable legal rule -> general principle with broader application -> analogous conclusion.Google Scholar
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    Cf. also Esser 1964 p. 132 “von wann ab haben Rechtsprinzipien den Charakter positiven Rechts? Antwort: Sobald und soweit sie durch rechtsbildende Akte der Legislative, der Jurisprudenz oder des Rechtslebens institutionell verkörpert worden sind”.Google Scholar
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    In the same way as there exist in the legislation “Möglichkeiten, die gesellschaftlichen Verhältnisse sowie die Ziele zu ihrer Bewahrung oder Veränderung mit unterschiedlichem Adäquatheitsgrad rechtsnormativ zum Ausdruck zu bringen”, Mollnau 1986 p. 158, legal science can more or less adequately reflect such circumstances and goals.Google Scholar
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    The law of contract and “the New Right” have been analysed by Atiyah 1989, who also notes certain signs in legal practice of a development in the said direction (e.g. p. 20). In West German law the demands for a return to the ethic of formal freedom in private law has been formulated by e.g. Reuter 1989.Google Scholar
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Copyright information

© Springer Science+Business Media Dordrecht 1992

Authors and Affiliations

  • Thomas Wilhelmsson
    • 1
  1. 1.Department of Private LawUniversity of HelsinkiFinland

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