Advertisement

Effects of an Alternative Doctrine

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

Abstract

On the definition adopted in the introduction to this work, alternative dogmatics is characterized among other things by the belief that through legal-dogmatic activity one can bring about changes in society. An alternative dogmatics is intended to be employed in some sense in legal practice: a purely academic discourse on new principles of law cannot satisfy the proponent of alternative legal dogmatics.

Keywords

Legal Practice Consumer Authority Legal Pluralism General Clause Legal Thinking 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Preview

Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.

References

  1. 1.
    As a comparison it can be noted that Zitting’s (1951) analytical criticism of the conceptual juridical concept of ownership, a pioneering work in Finland, is not considered to have become accepted in the reasoning practice of the Supreme Court until the 1970s.Google Scholar
  2. 2.
    Wilhelmsson 1987, Chapter 5.Google Scholar
  3. 3.
    OU 9/1988 p. 28, KM 1989:47 p. 107. 4 Bârlund 1990 p. 82.Google Scholar
  4. 6.
    See e.g. Eriksson 1977 p. 40.Google Scholar
  5. 7.
    Particularly in the highest instances there are still relatively few judges from the lower social levels, see e.g. for the Norwegian Supreme Court Ostlid 1988 p. 136.Google Scholar
  6. 8.
    In an analysis of the voting behaviour of Norwegian Supreme Court judges in certain cases with dissenting opinions, Ostlid 1988 p. 138 notes, e.g., that judges with conservative preferences are more inclined to vote for more stringent sanctions than judges in the radical grouping. - Even in a, party-politically, relatively homogeneous circle such as the Finnish Supreme Court - with only a few leftist members - systematic variations occur in voting behaviour. This emerges e.g. from Bruun 1986, who has analysed the various judges’ voting behaviour in labour law cases.Google Scholar
  7. 9.
    A good expression of this is the recent Nordic collected volume on the alternatives of legal dogmatics, Tuori (ed.) 1988.Google Scholar
  8. 10.
    See also e.g. Graver 1989 p. 57 ff.Google Scholar
  9. 11.
    Unger 1976 p. 193.Google Scholar
  10. 12.
    In the words of Joerges 1989 p. 634: “Under the new conditions of the ‘society of organizations’, law can no longer represent a coherent social order”.Google Scholar
  11. 13.
    Santos 1987 p. 298.Google Scholar
  12. 14.
    See also Teubner 1989 p. 414 ff. on the separation of legal fields, each field being “administered by specialized legal experts, who identify with the corresponding social spheres at least as strongly as with the law”, above Chapter II, footnote 30.Google Scholar
  13. 15.
    Certain examples of this are given in Wilhelmsson 1989 p. 202.Google Scholar
  14. 16.
    Zahle 1986.Google Scholar
  15. 17.
    Graver 1989 p. 60.Google Scholar
  16. 18.
    I do not necessarily wish to play here upon the traditional distinction between “hard cases”, where the judge has wide discretionary powers and “easy cases” in which only one solution is considered legally possible, as the “easy cases” also, when analysed more closely and using an alternative reasoning, can often be made “hard”. Rather, the “legally impossible” alternatives never arise as cases or in connection with cases since it is obvious to all members of the legal culture in question, regardless of value background, that these alternatives lie outside the sphere of the legally possible. Anyone would consider it patently non-legal if a Finnish court today should sentence a person to death since this sanction is forbidden by law; but a court is never called upon to consider this alternative since no prosecutor or plaintiff would conceive of making such a demand. Even though the death-penalty alternative is a factual possibility, it is excluded as a legal alternative. The freedom of action of the courts is further limited not merely concerning the possible final results of proceedings. Important here is the circumstance that the way of justifying a legal decision is also hedged about with certain limits A hard private-law case may be decided with reference to, e.g., guilt, risk reasoning, principles of protection or other similar arguments. On the other hand the same decision would be considered legally inacceptable if the argument ran “The case should be decided in A’s favour because B smells”.Google Scholar
  17. 19.
    See e.g. Atiyah - Summers 1987 p. 75 ff., who attempt to show that the flexibility of rules is much greater in American law than in English.Google Scholar
  18. 20.
    Teubner 1989 p. 410 speaks of “a new and disturbing quality of indeterminacy in law”.Google Scholar
  19. 21.
    An extreme example of this is given by the illustrative analysis of the role of the general clauses in the application of the law in the Third Reich, in Withers 1968 p. 210 ff.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 1992

Authors and Affiliations

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

Personalised recommendations