The Theories in Law
It is necessary to make a distinction between the theory of and about law and the theory in law (later: theory). The first one deals with law as such - for instance, with the origins of law, the validity problem or legal thinking.
The theory, in its turn, concerns certain legal institutions, such as contract, ownership or legal person. In this study, the theory of ownership has been used as an example of a theory. In the following, the detailed analysis presented by Ralf Dreier has been taken as the point of departure. It is best in this very field that I know in the modern jurisprudence (Dreier 1978, 70, see also Poyhonen 1981, 19). According to Dreier’s guidelines, the essential elements of the theories in law can tentatively, but only tentatively, be specified as follows:1. The theory is always based on certain ideological background assumptions. The theory of ownership presupposes a market economy and, at least to some extent, free power to possess the object and use it in economic change. The ideological assumptions are not normally manifested but are a tacit foundation of the theory.
2. The theory always includes a network of concepts consisting of
• a certain number of basic notions,
• principles that arrange the relationships between the notions, such as in a hierarchical order, and
• inference rules, by means of which the notions can be used.
3. The normative foundation of a theory of legal rules and principles, such as the (Finnish) statutes of the Decedent’s Estate Act, or the Act of the Title to Property Registration. These rules and principles define the establishing, content, functions and termination of the legal institution at issue (Poyhonen 1981, 98).
All the theories are open to the changes according to the societal dynamics. On the other hand, it is not possible to redefine them arbitrarily so that the theory does not have any contact with the social reality. Legal order, also in its reformulated shape, is always a holistic totality, where a single part of it cannot be changed without changes in some other parts of the whole. In this way, the changes of theories are always intertwined with the legal tradition, building a new level to that tradition. This feature of the theories will be dealt with in more detail later on.