Preface
This book deals with the doctrinal study of law, although the focus is on the legal reasoning in general. The topics have been chosen for a special reason. I first began to think about the value of philosophy for practical lawyers more than fifty years ago.
The past five decades have shown that my curiosity has not been wasted. I am now more convinced than ever before that the old phrase “bonus theoreticus, malus practicus” does not hit the nail on the head. For this reason, the goal of my contribution is to increase the understanding of the value of philosophy for lawyers, especially for everyday research.In this, I join the Scandinavian tradition, in which the interest in jurisprudence is most often intertwined with doctrinal studies of material law, such as that of civil, penal or procedural law. Good examples are Karl Olivecrona (procedural law), Alf Ross (mainly penal law), Torstein Eckhoff (public law), Per-Olof Ekelof (procedural law) and Aleksander Peczenik (civil law). There are, of course, many philosophers who have approached law and legal reasoning, among other things. An excellent example was my close Austrian friend Ota Weinberger. In Finland, the list is quite long and representative: Georg Henrik von Wright, Jaakko Hintikka, Ilkka Niiniluoto, Eerik Lagerspetz, Raimo Tuomela, Risto Hilpinen, and many others.
In my case, my studies in civil law opened the door to a fascinating world quite early, where such notions as “right”, “duty”, “competence” and, a bit later, “norm”, “prohibition”, “obligation”, etc., challenged the mind of the then young lawyer. Little by little, my curiosity grew and I found myself pondering the question: What am I actually doing when acting as a legal professional? I am still in this state, which is why the focus of this treatise is on the doctrinal study of law (DSL) and its theory.
There are four people who have been my “scientific fathers”: Georg Henrik von Wright, who was my teacher, Ludwig Wittgenstein, Stephen Toulmin and Chaim Perelman.
A fifth thinker should be on the list as well - but for reasons other than those mentioned above. In 1959, Alf Ross’ book “Om ret og retfaerdighed” (On Law and Justice) invited me to see the core problems of legal thinking for the first time. Of course, Ross has also been important to me later on, but more as an opponent than a pattern to follow. Actually, almost all of my carrier since the early 1960s has been full of attempts to distance myself from Alf Ross. Now, after decades, we are on the same side of the barricade, having different opinions, but opposing those who do not see the value of theoretical thinking for practical lawyers.I feel sad that my thanks can no longer reach Georg Henrik von Wright. His significance was not limited to encouraging and supervising my work. He also created the foundation for the international rise of Finnish legal thought from the 1970s onwards. I could calmly follow his footsteps, first to Poland, the centre of European legal philosophy in the 1970s, then to Argentina, another important country in legal thought, and finally to the United States and different locations in Europe, such as Spain. My work as the president and vice-president of the International Association for Philosophy of Law and Social Philosophy (IVR) from 1983 to 1995 would never have been possible without the actual and indirect support of Georg Henrik von Wright. He was also a great help in 2001 when the Tampere Club was founded, a group of scholars representing different fields in the social sciences. Georg Henrik von Wright was the first honorary president of the club.
There have been many other people who have pushed me forward, each in their own way. First of all, I have in mind Aleksander Peczenik, a close friend and a great thinker who passed away in 2005. I would have not been the person I am as a legal philosopher without Aleksander Peczenik's wise thoughts and readiness to help me at a moment whenever a particular problem seemed completely unsolvable.
The other collaborator of great importance has been Robert Alexy. I still remember those golden days I spent in the hotel “Desiree” in Amsterdam with Robert Alexy and Aleksander Perczenik, trying to find our way in search of the foundations of legal thinking.
Jerzy Wroblewski, the central figure in Polish legal thought, and Ilmar Tammelo, who was working at the University of Salzburg when I started my international career in the late 1960s and early 1970s, encouraged me to publish my articles in international journals.
Ernesto Garzon Valdes earns my most heartfelt thanks. He opened my eyes to problems I would not have been able to identify without him. They concern, for instance, understanding the foundations and significance of morality, democracy and tolerance. He is not only a thinker of the highest degree but also a magnificent person. Ernesto Garzon Valdes has been a true friend for many years. The door of his home in Bad Godesberg has always been open to me and my family. As the president of the Tampere Club, he has also done extremely valuable work for both Finnish science and the Finnish culture in general.
Cordial thanks also go to Werner Krawietz, a collaborator and friend since the end of the 1970s. He was the first to open publishing channels for several Finnish legal philosophers, including me, and did other valuable work for the Finnish legal culture.
Jose Luis Marti and Manuel Atienza organised seminars for me in Barcelona and Alicante in the autumn of 2010, where I had an occasion to discuss the key issues of my work. At best, philosophical discussion is not only a great pleasure but also a privileged intellectual adventure. Cordial thanks for that, Jose Luis and Manuel.
Last but not least, Mr Ev Charlton earns my special thanks for the linguistic checking of the manuscript, which was done quickly, effectively, and with exceptional professional skill.
The title “Essays on the Doctrinal Study of Law” has been chosen consciously. All the chapters elucidate dimensions or points of view that are of importance for a legal scholar. Therefore, the collection includes some overlapping themes, which I have not eliminated because they emphasise, in a natural way, the weight of themes that have been, and still are, important to my work.
Tampere, Finland
Aulis Aarnio
March 2011