The Dual Nature of DSL
Robert Alexy deals with this feature from the point of view of modern theory of argumentation and puts the problem as follows: “This claim to adequacy necessarily connects the concept of a thing with its nature.
With concepts one strives to grasp the nature of the things to which they refer as perfectly, as correctly, as possible. This is the non-conventional or ideal dimension of concepts” (Alexy 2010, 167, 2003a, 6, 2008, 281,2009b, 21,2011, 15).According to Nehrman, however, legal concepts have a dual nature. They are not only ideal but also socially established norms. As such, they are tightly connected to the European culture as the results of Roman law. This heritage, and only it, forms a firm conceptual basis for legal thinking because Roman lawyers, and precisely them, were the first to define what the necessary content of legal notions is.
The nature and role of Roman law concepts was not as clearly formed by Calonius, but he was obviously on the same path. The concepts and principles of Roman law were included in his lectures as an integral ingredient. From a contemporary point of view, Nehrman, and Calonius, stood in defence of the so-called general doctrines of legal thinking - in their case, mainly the doctrines of civil law. A lawyer can never manage without the conceptual structure of legal thinking, no matter how strongly he swears by the name of “theory-free” doctrinal study of law and practice.
A complex problem of contract law cannot be solved without knowledge of the general doctrines of contract, nor can one sentence anyone to compensation without an idea of the content of causality, adequacy or other central notions of tort law. The same goes for all other branches of law. Each has its own conceptual structure - i.e., general doctrines.
In Nordic legal thought, the general doctrines are still largely based on Roman ideas.
They have found their way into contemporary thought through many phases, beginning with Justinian's Corpus Iuris Civilis. They were adopted by Swedish law in the 17th century, and were “brought up to date” in the lectures of Nehrman and Calonius. In this very sense, I find myself to be at least as Nehrmanian as Nehrman himself.Since the early 1970s, my role in Finland has been to emphasise the importance of general doctrines, calling them the “toolbox” with which the practical duties of lawyers are carried out (Aarnio 1979, 74, 1989c, 288). After rereading Nehrman's texts with care and understanding, I do feel justified professional pride in being privileged to join a centuries-old tradition of Nordic (and European) legal thought. That tradition started well before my time, possibly articulated in a better way than I have done, but in any case, one that lies deep in the background to the cultural tradition of the Nordic lawyer. Matthias Calonius and David Nehrman-Ehrenstrale mediated the general doctrines (Roman law) of their time as well as the leading doctrines of 18th-century Europe for the shaping of future researchers.
Keeping this in mind, we again meet the problem: Has there been any kind of change in the doctrinal study of law since Nehrman's time? In this respect, two items emphasised by Nehrman and Calonius have to be recalled:
1. Their thinking was consciously based on a certain philosophical conception of law, and it was
2. based on well formulated Roman law systematics.
These two items both connect and separate their thought from contemporary ideas. The common element can be found in the fact that all legal thinking, both old and modern, presupposes basic philosophical assumptions as well as certain conceptual tools. The difference between Nehrman and Calonius on the one hand, and the modern legal thinking on the other, lies in the content of (1) and (2). The content and strength of these two items are different, depending on the cultural context. Hence philosophical assumptions vary from natural law to different degrees of positivism, and differences can be found in the significance of the general doctrines as well as the way in which they are used in actual research practice.
A typical example is the difference between the conceptual doctrinal study of law (Begriffsjurisprudenz) and the analytical civil law tradition. The difference in systematics can be seen in many everyday matters. In the early DSL, also the identification and formulation of problems, the structure of arguments, “truth-demands”, the way of argumentation, and the form of presentation were different from that of today. Hence there is something unchanging in legal thinking, just as there is something that undeniably changes. This duality of change will be examined in more detail in the final chapter.