Change - How and When?

As was pointed out above, the change in the doctrinal study of law concentrates on the transition from a certain theory (T1) to another one (T2). The theories T1 and T2, for their part, are articulations of a certain matrix (M1/M2).

In a change external to the matrix, the matter is about the matrix's change into something else. An internal change is a new interpretation given to the same matrix. When the whole matrix changes, the whole “character” of DSL changes along with it. An example of this kind of change would be the doctrinal study of law's aban­donment of interpretative (and weakly normative) study and reorientation toward the regularities studies by the empirical social sciences. This change could be roughly described as the transition of the doctrinal study of law into (empirical) sociology.

A change like this is foreign to the history of DSL, and the reason for this is quite clear. It is the social interest of knowledge that keeps DSL as the doctrinal study of law. If the doctrinal study of law gives up its task as an interpretative study, some other discipline will quickly arrive and assume this very task for itself. This is because the interest in knowing something of the content of legal norms does not disappear from society merely through the theoretical redefinition of the task of the doctrinal study of law. There has to be some discipline that takes care of the interest of knowledge all the time and in every legal order.

For instance, the so-called interest-based study of law (Intressenjurisprudenz) defended by Rudolf von Ihering was not revolutionary in this sense. It did not cause a radical transformation of DSL, and would not have done had it become effective.

The same goes for the application of Scandinavian realism formulated by Alf Ross in his theory of prediction. It had no effect on changing the legal research. If DSL really had been able to have followed Ross' model and still remain as the doc­trinal study of law, it could have been said that the matrix of DSL had changed. DSL would have changed from its traditional form of giving recommendations into an empirical science that predicts the behaviour of officials. However, the Rossian the­ory of prediction was not of that kind and proved to be a hermeneutical application of the interpretation of law.

In normal science, the key theories, instruments and values, as well as the meta­physical assumptions, are kept fixed. As such, they permit a cumulative process of puzzle-solving cases. In the phase of scientific revolution, the disciplinary matrix undergoes a revision. Knowing this, one can ask whether Jorgen Dalberg-Larsen's claims about DSL not going through a change of the matrix at all in its history are true.

Let us look at another dimension of the (possible) change - that is, at the notion of paradigm. When speaking about exemplary instances of good scientific research, Kuhn had in mind the notion of paradigm in the narrow sense. The consensus of a disciplinary matrix is basically agreement on paradigms as exemplars. In this sense, the European law - at least that of Nordic countries - has gone through some “revolutionary” changes from one phase to another.

In this sense, the internal change in the matrix M seems to be more apparent than the external one.

Still, without the lawyers seeing it at first, the theory T1 began, due to the external factors, a slow descent into a phase of rupture. A paradigmatic exemplar, which caused difficult problems, was the part-exchange trade: the seller was no longer the owner, but the buyer had not yet acquired a full right of ownership. An interim state had appeared, for which the theory T1 no longer had a puzzle-solving capacity. Societal changes had given rise to an anomaly from the traditional theory point of view. In time, other anomalies appeared as well, until the situation had come to a point where it had to be realised that the theory T1 no longer functioned in an adequate fashion. It did not satisfy the interest for knowledge that had appeared through the change in societal circumstances.

In this setting, “a new theory of ownership had to become”. The reason for that was external to the doctrine (theory) T1 and could thus be found in society, not in the doctrine itseself. New societal circumstances, first of all the rapid growth in the economy, caused pressure for change in DSL too. Lawyers needed tools to answer totally new types of questions.

The theory T2 gave an answer to all the legal problems that had been born in the framework of theory T1, but, in addition to this, theory T2 also answered new questions and could remove the anomalies of theory T1. In the process of change that is often slow and indiscernible in the phase of normal science, theoretical and practical DSL work in interaction. Theoretical DSL provides the structure for thought while practical studies find the adequate applications. The theoretical struc­ture might sometimes have to be adjusted on the basis of the experiences of practical interpretative situations. Still, this can no longer be done at some point, which gives rise to the first symptoms of the difficulties in the matrix. The time has come for a new matrix. The paradigmatic exemplars of, for instance, the dynamics of owner­ship, are here the core of the new matrix. Historically, all this happened with matrix M1 in Finland after World War II.

DSL changed from the interpretation Ml of the basic matrix M - that is, from the matrix M1 into another interpretation (M2) of the same matrix. New paradig­matic exemplars finally established the status of M2. The new exemplars renewed legal thought, for M2 made new questions possible, and these questions paved the way for new answers. The world is full of answers and one must only ask the right questions. Under the dominance of M1 it was not possible to pose such questions as could be asked under M2. Some questions, like the ones about the interim state in part-exchange trade, could not even be thought in the first place under the old theory and within the old interpretation Ml. As far as the modern Finnish civil law is con­cerned, T2 could do that; therefore, it now represents a normal-scientific approach to property law. In different fields of law one can identify numerous examples of a change of the prevalent matrix.

Every theory and every matrix have their limits. As was referred to above, they are like lenses that allow one to see only to the extent allowed by their grinding and surface area. We cannot go outside the theory - i.e., outside our thoughts at a specific moment in time.

In using concepts like this, the change in DSL seems to be connected to the change in the systematisation of legal material. The systematisations are comprised of the theories that form the framework “through” which the legal order is analysed. A new totality of theories, a new way of systematising legal norms, is more adequate than the previous, because the solving power is greater than before. In this setting, a far greater number of legal problems can be conceptualised. And this is the case because the conceptual apparatus of the new theory is finer and more efficient when it comes to economy of thought and richer by its content in terms of the answers it provides.

Thus the DSL both changes and remains unchanged, depending on whether the focus is on the matrix as a whole or on the interpretation of this matrix. DSL as an interpretative study has preserved the essential features, at least since the days of David Nehrmann. Scholars are still committed to the basic tasks of DSL. On the other hand, it is possible to identify phases in which the renewal of interpretation of the matrix is and has empirically been necessary due to the lacking puzzle-solving capacity of the prevalent thought, as was the case in the Finnish civil law after the Second World War. Slowly, the new interpretation of the matrix is getting the status of a normal science and the scholars are committing themselves to the new key the­ories, as well as applications of those theories concerning paradigmatic exemplars of the time.

From a doctrinal-historical point of view, the processes of change are challenging to recognise because they often concern times of intellectual rupture.

Change is like a kaleidoscope, where the generalisation of a certain view to cover all of the doctrinal study of law irreversibly distorts the whole image of the process of change.

Another metaphor aims at the same objective and, in my opinion, does a bet­ter job than the previous one. DSL as a whole is a constantly changing totality of language-games. Some of the games are left out of use while others replace them, but at any given moment it is impossible to say that one game represents the whole of DSL. The state of the doctrinal study of law at different times can be seen in the language-games played in its name, even though this state cannot be expressed conclusively.