The Doctrine of the Sources of Law
The doctrine of the sources of law (later: DS doctrine) is thus a cornerstone of argumentation. It draws a boundary between what is legal and what is not. In the words of Torstein Eckhoff, the matter concerns the foundations used when one formulates a statement de lege lata (Eckhoff 1987, 11).
In a way, the sources of law locate the limit of law. However, the source problem is only a part of a more fundamental problem with the limits of law (cfr Tuori 1988, 168).The significance of the DS doctrine lies in the fact that there is no other way to define what is “legal” and to separate it from “non-legal” in the adjudication or in DSL. It is exactly the DS doctrine that gives the lawyers, judges and researchers of any given age the pieces of the interpretative game that forms their constitutive rules and creates a foundation for L-rational and D-rational deliberation (Peczenik 1989, 313). In this sense, the DS doctrine reflects the conception of law prevalent at a given time in a given society.
For the above reasons, the DS doctrine has been an essential part of the theory of legal reasoning, and as such very much discussed, for instance, in the Nordic tradition. The most distinguished contributions are those of Torstein Eckhoff, Aleksander Peczenik, Jacob Sundberg (Sundberg 1978, 24) and Stig Stromholm (Stromholm 1988, 289), to name a few. Generally speaking, the interest has been bound up with pragmatic legal research, a traditionally much-debated subject in the Nordic Countries.
In the Nordic thinking, Aleksander Peczenik was the first to divide the sources into categories according to their binding force - i.e., into the groups of “ought to be”, “should” and “permitted” sources. Since then, the development of the DS doctrine in the Nordic countries gone side by side with the development of the theory of argumentation, being a part of the that theory.
My first systematic attempt to form a DS doctrine was published in 1978, but I made the main efforts in co-operation with Peczenik (Peczenik 1988, 237, 1989, 313; Aarnio 1987, 77). What follows, is based on this co-operation.In his dissertation, Christian Dessau analyses the legal-theoretical conceptions of Robert Alexy, Aleksander Peczenik and myself (Dessau 2008, 58). Dessau was interested in the cultural dependence of the DS doctrines in Germany, Sweden and Finland. In this regard, Dessau was a pioneer trying to find the cultural foundations of the similarities, as well as the differences, between the Central European and the Nordic views. The result of the analysis is important. The DS doctrines differ not only in a specific country according to the period of time being considered but also between different countries. There are no single and “correct” DS doctrines independent of the time, place and culture, which means there is no one and equal substantial DS doctrine that covers the whole of Europe, let alone the world.
The other feature of DS doctrines is as important. The content of the DS doctrine varies a lot, not only depending on the legal culture but also inside a certain legal order being partially different in different branches of law. The sources are not exactly the same in administrative law as they are in the penal or civil law. This special feature of modern law is called the polycentricity of the DS doctrines. This substantial phenomenon is not dealt with in this study.
In general, the notion of source could be characterised as any argument, in support of which the interpretative standpoint is either found (context of discovery) or justified (context of justification) as legally valid. Later on, only the justificatory dimension will be discussed.
The next specification concerns the weight of a legal source. As regards the interpretative procedure, it may be either positive, negative or indifferent. A source has a positive weight if it strengthens the justification.
In the theory of argumentation, the term “pro-argument” is used to describe this. A negative weight reduces the credibility of the decision or interpretative proposition. It is a contra-argument. Sometimes a source has neither positive nor negative weight. For example, in a simple (routine) case, the statement may be justified with pragmatic reasons, although the conclusion can be derived directly from the statutory text.In Napoleon’s France, in the time of the legal codifications, there were only two valid sources: the statues and the intention of the legislator. As far as the foundation of law is concerned, the length of the list of sources is not, however, as essential as the qualification legal vs. non-legal arguments. In this regard, the DS doctrine can be understood in a wide or a narrow sense.
In the latter case, the DS doctrine only deals with the authoritative (or official) arguments used in legal justification. Stig Stromholm is one of those who defend this reductive definition (Stromholm 1988, 294). According to him, only the statutes, the intention of the legislator and precedents are proper sources of law. Usually, however, the definition is more liberal. According to this view, the DS doctrine also contains other arguments that are not authoritative.
In the broadest sense of the term, the DS doctrine also includes the rules of the use of the sources as well as the other norms of legal discourse. From this normative point of view, the following elements should thus be included in the DS doctrine:
(1) Constitutive rules, defining the sources
(2) The rules for the categorisation of the sources as regards their deontic nature, either
(a) prescriptive norms (strongly binding sources),
(b) permissive norms (permitted sources),
(c) technical norms (weakly binding sources)
(3) The standards of rational legal discourse, which define how the sources should be used in the argumentation in order to guarantee the maximal acceptability of the reasoning.
Understood in this broad sense, the DS doctrine covers all the argumentation theory. That broad concept is too extensive and includes too many different elements. It no longer serves the idea of the DS doctrine. For this reason, the DS doctrine is separated from the argumentation theory in the following, and the DS doctrine, in its turn, is understood only in the wide sense referred to above.
In this regard, a distinction should be made between a source of law and a source of information. The first category consists of the authoritative or substantial grounds on which the legal decision is either justified or made. The source of information literally gives information about the sources of law. The intention of the lawgiver is a source of law, while the documents, like the draft of law, give information about what the intention actually was. The same holds true as far as the precedents are concerned. A precedent is a source of law, whereas all kinds of literal or computerised material talking about the precedent is the source of information. In this context, the term legal informatics is often used. However, I see it as misleading, because the term “informatics” normally refers to the theory of the informational value of propositions. The source of information is, in its turn, connected to electronic search systems or the like. These practical problems do not belong to the theory of DSL.
The next distinction concerns factual and ideal sources of law. Factual sources consist of the arguments used de facto by DSL (or in the adjudication) in making or justifying the decision. Ideal sources of law are a group of arguments used in a model of legal reasoning. Therefore, ideal sources of law are part of the theory of argumentation if it is understood as an ideal model of legal discourse. The DS doctrine dealing with ideal sources articulates the tacit commitments accepted in the legal community as far as the valid law is concerned. In this regard, the ideal DS doctrine is an essential part of the theory of rational legal argumentation, but the DS doctrine itself does not include the rules of that type of argumentation.
Robert S. Summers has separated the sources of law and the materials (Summers 1992, 125, 138). This distinction is important because materials other than the proper sources of law may also be used in legal discourse. Examples of such are the analogy and the e contrario arguments. It does not sound good to say that the analogy between A and B is a source of law. Instead, analogy is not only an accepted but a common argument used to justify a legal interpretation. Besides, it is not just a pattern of legal reasoning. On the contrary, practically all the human thought apart from deductive inferences is, to a large degree, built on repetitive similarity reasoning and expectations of invariance.
Analogy and e contrario arguments have a dual role in legal argumentation. The analogy principle is one of the rules of reasoning directing legal discourse, as are the e contrario and the argumentum a fortiori principles. Similarity and deviance, in their turn, are arguments. The same goes for the reference to e contrario, or to a fortiori. Both can either be an argument or a pattern of reasoning.
Besides the above distinction, Robert S. Summers has introduced another concept-pair of great importance: a separation between goal reasons and rightness reasons (Summers 1978, 724). The first looks “forward” - that is, into the consequences of a given interpretation. This pattern will be analysed in more detail later in connection with consequential reasoning.
Rightness reason refers to a ground that is (morally) right. As such, it looks “backwards” and takes into account arguments and criteria that have already been accepted. In this “Summersian” sense, most of the material (substantial) arguments used in DSL are rightness reasons.