DSL and Adjudication

The authority applying the law has judicial power to give solutions and the obli­gation to reach a decision in every case that has been delivered up to the law. The official status of the authority obliges it to follow the legal norms or run the risk of sanctions.

DSL is a practical field, or a study that is near praxis. In a sense, it is praxis in itself, the societal praxis from which our belief about what is in accordance with the legal order receives its content. If, however, DSL and legal praxis are equated with each other, and we say there is no difference between DSL and some other activity that investigates the contents of the legal order, problems arise. These can be briefly expressed as: Does DSL have a position independent of legal praxis? Pushed to the extreme, it is a question of whether or not there is any difference between a purely practical activity and DSL.

DSL has neither the power nor the obligation to reach a decision, nor does it have the same responsibility of office as the judge. DSL is in the position of “a bystander”. This means that, from the organisational point of view, the judge works within the official system and DSL deals with legal norms from outside. The judge, but not DSL, is a part of the power wielding machinery. Hence only the judge has the internal organisational point of view.

All these differences are, however, only differences between, on the one hand, the societal function of the judge and, on the other hand, of DSL. As far as the legal interpretation is concerned, the similarities are bigger than the differences. Let us begin with an introductory remark. Stig Stromholm observes that the scholar must argue in support of his stand as if he were bound to the same sources and the same principles of interpretation as the judge (Stromholm 1988, 26), otherwise the position of DSL would have no chance of success.

There are always two sides to a judicial decision: the establishing of the facts of the case and the clarification of the contents of the legal norm - that is, interpreta­tion. The decision lies in regarding the facts as belonging to the category of events covered by the norm. The traditional way of legal thinking in statutory law coun­tries emphasises the difference between the fact-question and the norm-question. According to this view, the legal decision-making is a step-like phenomenon. By means of the proof of evidence, the decision-maker has first to establish the facts of the case. After this, the contents of the norm applicable to these facts will be identi­fied. The last step is subsumption: the facts and the norm will be “combined”. The final solution is the conclusion of the subsumptive procedure.

The theory of subsumption will be dealt with later. Instead, another dimension of reasoning has to be looked at more closely. In the judicial decision, the fact- and the norm-questions are intertwined with each other. It is impossible to establish the facts of the case without taking any account of the norm information. This infor­mation shapes the framework for everything we regard as a legal fact in the case. The relationship is the same as between the interpreted facts and the so-called brute facts. The norm information, as “pre-knowledge”, is like a lens through which the decision-maker necessarily has to deliberate the proof of evidence (Aarnio 1993,4).

Although DSL is only interested in typical cases, it and the application of the law are in a certain sense on the same side of the fence. The judge also has to interpret the statutes in order to reach the required norm information (Aarnio 1987, 8). In this respect, both the judge and the scholar have a similar internal perspective, which can be called the epistemologically internal point of view.

In the rule-of-law state, citizens have a well founded right to expect the judicial machinery to produce maximal legal protection. In the following, this is called the expectation of legal certainty (Aarnio 1987,3). The role, importance and structure of this expectation can be characterised with a so-called “triangle of legal protection”. Let us imagine that the tip of the triangle consists of the uncertainty concerning a difficult case, which may concern the two above-mentioned elements: factual ques­tion and legal question. In the scheme of things, it has been assumed that there is no certainty as to how the facts should be evaluated (proof) and how the statues and other legal material should be interpreted.

The distinction between the factual and legal questions is, of course, one of the traditional ones. In this context, the factual question has been left aside. In the proof of evidence, the matter concerns the credibility with which a certain fact has been established. This all contains the general theory of evidence, the principles of burden of proof as well as the theory of sufficiency of proof.

In the lower left-hand corner of the triangle are the judge's power and his or her obligation to give a decision. According to the Constitution in the rule-of-law countries, the task of the court is to give a decision in single cases, and through this task it becomes one of the societal implementers of legal coercion.

The citizen is situated in the right-hand corner of the triangle. As was mentioned above, he or she has the right to expect that the use of coercive power maximises the citizen's legal protection and legal certainty in general. This well-grounded expec­tation of legal certainty is one of the cornerstones of the Constitutional State.

This is only one side of the coin. Courts also have a unique social responsibil­ity toward civic society. This responsibility is realised by reasoning of decisions. Parties external to the courts, such as citizens, researchers, attorneys and others who are subject to the decisions or otherwise interested in them, do not have any other means of evaluating the correctness of the decisions. The reasons of decisions are like a “handle”, which one may grasp to weigh the decisions from the point of legal certainty. Through the reasons, the courts also connect with the requirement of democracy.

There is still one question with regard to judicial decisions: Why reason? There are several grounds for reasoning (Aarnio 1997, 188):

(1) The interest of a party presupposes that he or she knows on which arguments the case was solved. Exactly this is the key to the story. Only a well-informed citizen is able to evaluate whether the decision in his or her case is right or wrong. From the point of view of legal certainty, reasons weigh most, not the authority of the court.

(2) The appellate court cannot guarantee the legal certainty if the decision made by the lower court is not reasoned in a proper way. The procedure that produces legal certainty in a dialogue is also a dialogue between different instances.

(3) The self-control realised by the decision-maker only becomes possible by means of a well formulated and coherent set of arguments.

(4) The independence guaranteed to courts in the Constitution prevents others from inter­fering in individual decisions, but there is also another dimension involved in the role of the courts: it is intertwined with the control from a societal point of view. As Gunnar Bergholtz has stated, democracy requires openness from all instances it covers, includ­ing courts (Bergholtz 1987, 327). Only open and transparent decision-making makes the democratic control of legal certainty possible. Therefore, the control of the courts is not carried out through political directives or other such means but by constant evaluation of the courts' decisions.

All these requirements also concern DSL, although only where applicable. The rela­tionship between reasoning and democracy is of great importance. DSL is one part of a legal community having the special task of developing the legal system. DSL is as important a factor in the societal dynamics as is the adjudication. Therefore, the expectation of legal certainty and the societal task of DSL are closely connected to each other.