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Doctrine as a Source of the International Unification of Law

Niilo Jääskinen, L.L.Lic.
University of Helsinki 1985

  1. The Concept of Doctrine
  2. International Unification of Law
  3. Unification and Cultural Community
  4. Legal Concepts and Comparative Arguments
  5. Unity Through Pluralism

1. The Concept of Doctrine

In Finland the concept of doctrine is understood as the prevailing opinion of the legal scientific community. The attribute "prevailing" should, nevertheless, be interpreted very liberally because the Finnish legal scientific community is relatively small and the prevailing opinion concerning a certain issue normally consists of the opinions of one or a few scholars.

The criteria of the concept of doctrine are more of a cognitive than of a personal nature. It is not defined with reference to academic status; even judges, barristers and other practitioners of law can contribute to the doctrine. Decisive is the purpose and method of exposition. If the requirements of legal scientific method as defined by the legal scientific community are fulfilled, the writing can be accepted as belonging to the doctrine regardless of the writer's background. On the other hand, the concept of doctrine does not include arguments or reasonings of judiciary decisions or writings at the bar because they are not presented with the purpose of achieving scientific truth on the point.

The doctrine expresses itself in legal text-books and studies. General legal periodicals (Tidskrift utgifven af juridisk föreningen i Finland, Lakimies and Defensor Legis) [1] circulated to practically all Finnish lawyers should be mentioned in this context as well as more specific legal journals on taxation law, intellectual property etc.

Due to the smallness of our legal scientific community the doctrine can seldom be divided into schools of thought. Such schools of thought can only be defined in retrospective ideo-historical analyses and the differences between schools lie more in different methodological approaches and frameworks than in material issues. (One can thus distinguish between the traditional constructive approach or "Begriffsjurisprudenz", analytical school, hermeneutic approach and the so-called alternative legal dogmatics with Marxian influence.)[2]

Because the doctrine in my country is mainly based on the opinions of individual scholars, the controversies in legal science have been and still are rather harsh: personal emotions are often intertwined with professional issues and the standards of decency in professional critique are not specially developed.

I would not include within the notion of doctrine legal guides, model forms, non-mandatory codes or coventions not yet in force. They are to my mind similar to legislation, preparatory materials, case law and other legal sources and build up as such the raw material for legal dogmatic analysis (which in this context is often of a de lege ferenda nature). Nevertheless they can be of value as argumentative support for standpoints concerning interpretation of law or filling the gaps in written law.

2. International Unification of Law

The international unification of law can be effected in two ways: It can either be a result of an intentional project which consists of drafting international conventions or model laws aiming at legal unity between different legal systems (unification in a technical sense) or it can come about through a passive and often unconscious process which leads to international legal unity by way of reception of foreign influence in case law, legislation and legal science (unification as a fact).

So far as the question "Doctrine as a source of the international unification of law" is considered, the distinction between purposeful unification and unification as factual rapprochement of different legal systems can be drawn and should also be drawn. If one limits oneself only to the technical unification one would obtain one-sided and, perhaps, too pessimistic conclusions.

The interest of the Finnish legal community in the technical unification of law is steadily increasing. Intensified foreign connections and immigration have created a need for legal unification, especially in the fields of international commerce, international private law and the international law of procedure. Finland has therefore eagerly taken part in different unification projects. Also, the legal science and in some cases courts have paid increasingly more attention to the international legal unity.

It must, however, be admitted that literature concerning legal unification, in the technical sense, is relatively scarce. On the other hand, in those branches of law where the international nature of legal relations or other reasons render the international unification a high priority the role of the doctrine in unification could be and should be central. It should be so to say one step ahead of the legislator.

If the unification of law is conceived as the factual rapprochement of different legal system via reception of foreign theories and concepts and utilization of foreign experiences, the problems concentrate on the more general question of change and progress in legal science. To this question there are some noteworthy contributions in Finnish legal theory.[3]

3. Unification and Cultural Community

The Finnish legal doctrine has always been greatly influenced by foreign legal science which has lead to extensive de facto unification between Finland and certain other legal systems. So far as the importance of foreign influence is considered one has to distinguish between the Nordic legal community (Sweden, Denmark, Norway and Finland), the German legal culture (Germany, Austria, Switzerland), other civil law countries (France, Italy, the Benelux countries) and other legal systems (the common law and the socialist legal systems).

The Nordic legal community can be divided into East-Scandinavian legal systems (Finland and Sweden) and West-Scandinavian legal systems (Denmark and Norway). Because of 700 years of common history and close economic, cultural and social relations there exists considerable legal unity between Sweden and Finland. Sweden is the nearest example for the Finnish legislation and Swedish case law and doctrine have high authority in Finland. Except for the cases where there are significant substantive differences in legislation, the Swedish precedents and doctrine have almost the same weight as domestic sources.

Danish and Norwegian case law and legal writing do not have such authority in this country as the Swedish case law and doctrine. They are, however, considered as standard sources in doctrine; it is not admissible to ignore them even though their relevance as argument is not considered as weighty as that of the Swedish case law.

In the field of legislation, the Nordic countries have traditionally sought for legal unity, whose goal has officially been confirmed in the agreement concerning Nordic co-operation.[4]

In the field of private law there are several uniform laws which with minor exceptions have the same wording in all Nordic countries. (The most important example is undoubtedly the Scandinavian Contract Act.) In legislative drafting and planning the co-operation is intense and the experience of other Nordic countries is keenly observed in Finland.

In the late 19th and early 20th century the Finnish legal science had very intense connections with Germany. It followed German masters of pandectics (von Savigny, Puchta, Windscheid etc.) in their methodological and theoretical approach. A few years at some famous German university was a necessary step in the Finnish post-graduate law studies.

Even today the legal culture of German speaking countries is a very influential foreign source in doctrine, second only to the influence of our Scandinavian neighbours. After the second World War there has been, however, severe methodological critique of the blind observance of German examples. It has been pointed out that the constructions of foreign legal science are not authoritative sources of law and that they may be based on assumptions and theories which lead to contradictions with domestic legal sources.

In some cases the experience of civil law countries other than the Scandinavian countries and German speaking countries can have relevance, especially in question of a de lege ferenda nature. Occasionally there are also observations in legal writing about the common law or socialist solutions to the problem in question; however, these observations mostly serve more the intellectual curiousity than the justification of the author's opinion, and they have thus no relevance as a source of law.

4. Legal Concepts and Comparative Arguments

In analyzing the role of the doctrine in the unification of law one should distinguish between the use of foreign concepts and the use of foreign solutions to legal problems as arguments in legal justification. (I call the latter phenomenon comparative arguments. They can be found in foreign legislation, foreign case law, foreign customary law or foreign doctrine.)

Legal concepts are to a certain extent universal, they describe normative structures and problem complexes and thus serve the need of sytematizatlon and interpretation of legal sources. Their universality, nevertheless, is relative to legal culture. Such concepts as, e.g., "contract" have a certain universal common core of meaning but they are as well loaded with culturally conditioned connotations. Ignorance of these elements can lead to false pretensions of understanding in the international legal discussion. So far as the legal concepts are universal they are common property of the western legal civilization, and the legal scientists of different countries are free to steal and borrow them in the same way as scholars in other branches of science are free to use foreign theoretical achievements.

The problems in the use of foreign legal concepts are basicly of a methodological nature. The most important one of these problems is caused by the fact that the legal concepts have, besides their technical core, culturally and socially determined axiological and legal implications or purport which one should observe. There is no such thing as "pure" legal science and therefore the unreflected use of foreign legal concepts may lead to conclusions which are in contradiction with domestic sources, traditions and ways of thinking. (A good example of this phenomenon in my country was the adaptation of German theories of community of property which lead the doctrine to results which were unjustified from the point of view of the Finnish legal sources.)

As far as the use of foreign solutions to legal problems (comparative arguments) as justificatory arguments for standpoints concerning domestic law is conserned, one meets the question of how they can be justified. Why should foreign expedience and solutions have weight as arguments?

There is always one prima facie justification for the use of comparative arguments, viz. that they lead to a solution which at least somewhere has proven to be practicable. This justification, however, is hardly conclusive. Therefore one has to seek for deeper justification for the use of comparative arguments, and this leads to the very crucial problem, namely: is unification of law valuable as such or is it a value which has to be weighed in the context of other values. I think that the answer of the Finnish legal community would be the latter and therefore I have to analyze the justification of the international unification of law.

Foreign law is not considered as a binding or even as an admissible legal source in Finland, unless the rules of the conflict of laws authorize the judge to apply foreign law. This rather formal statement does not, however, reveal the real circumstances. Comparative arguments in the doctrine are presented as arguments for interpretations, and in some cases courts follow foreign examples even in purely domestic cases. Most often this takes place in cases in which there is neither written Finnish law nor established customary law on the point. (E.g. the Scandinavian Sales of Goods Act, which is not in force in Finland, has to a certain extent become customary law in Finland through the case law of our Supreme Court). Comparative arguments also have great weight in those fields of law where the need for international unity in application is flagrant (e.g. the application of laws based on international conventions).

If comparative arguments are presented as a justification for a certain interpretation, one must ask what weight one should give them or in other words what value does the international unity of law have in relation to other values.

In those fields of law where there are considerable efforts towards technical unification (e.g. international trade, international family relations etc.), I think that the doctrine should also give priority to international unity, which should thus be conceived as a value as such. In other fields of law the problem is more complicated.

I suppose that the Finnish judges and legal scientists unanimously regard the legal system basically as a national phenomenon. In the spirit of Savigny one can say that the law is a product of national development, cultural traditions, and history and it serves the needs of a peaceful conflict solution and the social progress of the Nation. Therefore domestic legislation, precedents, preparatory materials, customs and so-called real arguments (arguments of justice, practicability and expedience) based on domestic circumstances should overrule, and do in fact overrule, comparative arguments.

On the other hand comparative arguments are mostly presented in situations in which domestic sources do not coerce into but one conclusion: there is no legislation or it is ambiglous, and other sources lead in different directions. In these "hard" cases, comparative arguments can be decisive in the selection between two incompatible but equally justified solutions. I suppose that most Finnish lawyers would accept the principle according to which it is justified to choose that alternative which leads to legal unity with those countries whose social and cultural circumstances are similar to ours, if the domestic sources do not determine the solution.

5. Unity Through Pluralism

In the last instance the question of the international unification of law concerns the unity of the western legal civilization. The spirit of this civilization does not compel us to follow a strict uniformity, on the contrary. The basic value of our civilization is the justifiability of individuality and the right of self-realization both on the individual and national levels. The law is basically an instrument for peaceful solution of social conflicts according to those values to which the community is committed. These values again reflect and must reflect the needs and the traditions of the people in question.

Thus the unification can be regarded as a value as such only in the context of international commercial and family relations. In this context unification can be pursued with the help of international conventions and regulations and recommendations issued by international organizations. In their preparation and especially in securing their uniform application, doctrine has a decisive role to play.

In other fields of law, unification should not be a pursuit of strict material uniformity between different legal systems but an application and adaptation of foreign experiences to domestic circumstances. This means that internationally open legal doctrine should develop common principles and concepts which could be transformed into domestic law in the framework of its own needs and traditions.

If international unification of law is understood in this way, doctrine -- or more precisely -- the legal science is undoubtedly the most suitable instance for this task. The achievements and values of the western legal civilization are best preserved if we can create an international legal-scientific community which would share some common basic concepts and values of the Rule of law. -- The international legal unity would thus not mean coerced uniformity in details, but an intellectual unity which would foster the plurality of legal cultures and traditions within the cultural heritage of our common legal civilization.


FOOTNOTES

1. Tidskrift utgifven af juridiska föreningen i Finland is a legal periodical issued in Swedish (founded in 1865). Lakimies (founded in 1903) is published by the Finnish Lawyers Association and Defensor Legis (founded in 1920) by the Finnish Bar Association.

2. Cf. Aarnio, The Development of Legal Theory and Philosophy of Law in Finland, in Aarnio, Philosophical Perspectives in Jurisprudence, Helsinki 1983.

3. Cf. Aarnio -- Jääskinen -- Pöyhönen -- Uusitalo, Paradigms, Change and Progress in Legal Dogmatics, forthcoming, and Pöyhönen, Om forskning om rättsvetenskap, Tidskrift utgifven af juridiska föreningen i Finland 6, 1976.

4. Cf. Wilhelmsson, Den nordiska rättsgemenskapen och rättskälleläran (The Nordic Legal Community and the Doctrine of Legal Sources) in Tidskrift for Retsvitenskap 2/1985, p. 181-197.


Pace Law School Institute of International Commercial Law - Last updated February 19, 2008
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