DSL and Sociology
Prima facie, the function of DSL is essentially different from that of a typical social science. In the latter, the question is normally of the form “What happens?” or “What regularities can we find here?” The social scientists accept legal norms as given, and then take up for the analysis, for example, the problem of how a legal norm is followed.
One of the primary goals of (empirical) sociology is the analysis of the regularities (invariances) of people's behaviour (Aarnio 1994, 3). On the basis of these regularities, in turn, some information may be deduced regarding the content of some norms: “People generally follow such-and-such a norm”.The social scientists thus normally represent a typically external point of view, but in a special sense. They are informed of the norms included in the legal order, of the legal institutions and of their functions, but they are not interested in the interpreted content of the legal order. The perspective of a social scientist can be compared to the study of chess purely by watching others play the game. A bystander may uncover many regularities, such as the fact that the piece called the pawn is generally moved one square at a time, except at the beginning of the game. It remains problematic, however, whether the external observer can learn how to play chess in this way if chess is the first game he has ever observed. In the same way, we can ask whether the bystander, through his interest in regularities alone, can understand the moves of the game, such as why in situation X the pawn is moved in manner Y.
These questions reveal that a true external perspective on society and legal norms is not without problems. Peter Winch has analysed the problem in a very illustrative way (Winch 1958, 83; Sandbacka 1987, 101). His point of departure is that the goal of all science is the identification of regularities in the subject.
What is problematic is how we determine the criteria of similarity. Winch observes that, ultimately, everything depends on the rules and principles that have been agreed upon in the scientific community. These rules and principles say what is and what is not required in the investigation of phenomena. According to Winch, the difference between the (natural) sciences and the social (human and moral) sciences lies in the different origin of the rules. In the sciences, the subject is external to the researcher (in the proper sense of the word), so the basis for the evaluation of similarity can be found in the scientific community itself. There are no such rules in nature. The rules are rules for approaching the truth, and they have been crystallised on different grounds in the researcher community.For the investigation of society, the situation is different (Tuori 1997, 127). In the social sciences, the rules defining similarity are to be found, at least in part, in the subject itself - that is, in society. If, for example, we must determine whether two forms of activity, praying and greeting, are the same or not, the activity in itself (the movements, the gestures) does not reveal any differences or similarities. The basis for the deliberation must be sought in the society in which these forms of behaviour take place. They are social usages defined by certain rules, and what is even more important, these rules constitute the behaviour so that it is, for example, greeting. For this reason, we must know at least some (constitutive) rules before we can classify the forms of behaviour.
No matter what one's opinion is of the details of Winch's thought, he draws attention to an essential idea from the point of view of our theme. Not even a social scientist can be purely a bystander - that is, a representative of the extreme external point of view. To return to our example of the observer of the game of chess, and to borrow the words of Ludwig Wittgenstein, one can say that in order to learn the game the observer must already be able to play another game.
If nothing else, the observer must understand what, in general, it means to play a game. The same is true of the understanding of social activities. One must, so to speak, somehow be “inside” them in order to participate in these activities in general, and it is not possible to even understand the activities unless one has participated in them at least once.Thus the position of the social scientist in regard to legal norms differs in a radical way from the position of the judge or the administrative officials. Even if we were to require an understanding of the social scientist in the way Winch does, it remains true that the scientist is studying how other subjects are bound by legal norms. The subject group may be lawyers, judges, administrative officials, citizens or a group of citizens manifesting special characteristics. On the other hand, the social scientists do not have to formulate their questions in the way a judge does: “What legal norms bind me as an authoritative decision-maker in this very case?” Approaching the content of the legal order from this point of view is alien to the social scientist.
Here also lies the decisive difference between a typical social science, e.g. sociology, and DSL. The attitude of DSL is basically centred on the legal norms (rules), not on the regularities of the behaviour of the citizens, judges, etc. The research interest of DSL is normative in a quite different sense than the interest of sociology (Aarnio 1994, 15).
Evidently, the typical research interest of the social sciences does not extend to the understanding of systematic connections. The analysis of these connections belongs to the epistemologically internal point of view only represented by DSL. Furthermore, only this knowledge is a core of legal thought, the framework through which the decision can be sought at least on a rough level. Understanding the systemic connections sets those with a legal training apart from those who examine things from outside the system.
In this very sense, the approach of the social scientist is epistemologically external. Even in the quite rare cases where sociology takes an interest in systemic connections, this interest is purely descriptive.DSL has often been classified as a social science. How is this possible if the social sciences are defined in the above-mentioned way? It all depends on the notion of social science. What has been said about the differences concerns the relationship between DSL and empirical social science.
If the demand for scientific confirmation is not set in this way, the relationship between DSL and, especially, (theoretical) sociology turns out to be of a different nature. Assuming that social science is a study of society as an existing phenomenon, DSL clearly seems to be one of the social sciences. DSL expressly interprets the linkages (norms) through which people's personal relationships become legalised and, in this way, associated. From a certain point of view, law is society in those phenomena that DSL is studying; thus DSL is a study of these normative “reciprocating mechanisms”. It is interpretative research that is a human (moral) science, but from this specific viewpoint it is inevitably a social science as well, the truth of which is measured by coherence.
Nevertheless, in this respect, DSL has often lost (or forgotten) its social-scientific character. If DSL is not clearly aware of the fact that its research object actually is society, it becomes a mere interpretation of symbols. In this case, DSL turns from actual social questions to a purely linguistic level, and becomes an uncontaminated interpretation (Aarnio 1994, 16). This being the case, DSL only interprets for the sake of interpretation, it only concerns the level of mere language, it corrects and specifies language as language. To quote Peter Winch, DSL only “clears trash from language” (Winch 1958, 24).
If this is the case, the independence of DSL with regard to its object becomes distorted, it would “abolish” itself from society - and from itself.
And vice versa: DSL can only be an associating agent if it recognises the social character of its object and thus the fact that in interpreting legal data it is inevitably a social science.However, if DSL only concentrates on analysing “societally important objects” as its subject matter or participates (politically) in society by interpretations, it is only superficially societal and loses its primary task. DSL is not a field of legal policy. And what is most important, DSL is not interested in phenomena as such but in society as existing in those phenomena.
In this respect, theoretical DSL is in a key position. In it, the object of DSL becomes obvious: legal relationships as a theoretical object. Theoretical DSL analyses on a conceptual level those linkages that constitute personal relationships becoming legal relationships, and further, legal statutes (and institutions). Thus, legal relationships form the framework of the pre-understanding (Vorverstandnis) that guides interpretation and this framework, inevitably (or at least, implicitly), always includes a picture of society. Therefore, the family resemblance between theoretical DSL and (theoretical) social science is obvious.
The difference lies more or less in the fact that the concepts of DSL offer a normative framework with which to perceive society. It is a conceptual body of the world of “Ought”. However, normativity is not essential when the social-scientific nature of DSL is evaluated. The normative concepts of DSL have the same function of formulating theory as theory in any other field of research, and on this point, one cannot prove any difference of principle between theoretical social science and the theoretical part of DSL.