Weakly Binding Sources of Law

Therefore, the next category is the weakly binding sources. Traditionally, the inten­tion of the legislator has been connected to that category. The task of DSL is to clarify the “intended system of law”.

The Intention of the Legislator

The teleological thesis maintains that man's practical reason is always directed toward a goal, and for this reason, his actions can be understood and explained by referring to a certain setting of goals and means (Stromholm 1988, 319; Peczenik 1989, 345; Kenny 1970, 146). This also goes for law, but the extension of the tele­ological thesis to cover an institutional phenomenon like law raises at least two further questions. First, goal-oriented activity requires an agent who sets the goal and acts in order to reach it. Second, there must be the will to realise the goal. In the case of law, it is natural to define that will, as lawyers traditionally do, as the intention of the legislator.

The basic problem is as follows: How is the will of the legislator constructed, and which facts are to be used to base that construction? Further, who or what is behind the will when discussing the will of the legislator? Karl Olivecrona, among other Scandinavian realists, held the question as incorrectly formulated. There is no such thing as the will of the legislator. To distance himself from the will theory, Olivecrona set up to defend the so-called theory of free imperatives (Olivecrona 1971, 120). However, a move like this does not solve the ontological problem regarding the foundation of law. What does a “free imperative” actually mean?

In the ordinary legal language-game, it is natural to say that the Parliament “behaves” in certain way, makes decisions and enacts (formally) valid laws, has “goals”, “purposes” and “intentions”.

According to Karl Popper's ontological view, collective agents are man-made entities relatively independent of their members - that is of the individuals. Collective agents thus belong to the Popperian World3. For our purposes, this is not a satisfactory answer, or, at least, it is only a tentative one. The ontological status of the (Finnish) Parliament is problematic. The Parliament consists of individuals functioning in certain social roles. In this regard, the Parliament is a collective con­stituted of individual members (in the Finnish case, of 200 people) all functioning in a certain social role defined by statutory law (especially by the Constitution) and by the political tradition of the country.

The social role is thus an intermediate link between an individual and the collec­tive called Parliament, because only such a person who has the role of a Member of Parliament can be an element of the institutional entity “Parliament”. However, this is not an alternative to the Popperian ontology. At least one more question can be formulated: What combines the social roles so that one can speak about “giving law”, “having a goal” “intending something”, etc.

Here again, is the time to recall Eerik Lagerspetz’ ideas on ontology. Such an entity as “The Finnish Parliament” can be compared to phenomena like “money”, “faculty of law”, “marriage”, etc. Lagerspetz writes:

Neither is it enough that members of a community just happen to believe that some objects are money: they must also know that this belief is generally shared by other members.

As was referred to above, the mutual belief is reflexive, or, if preferred, circular: The beliefs referred to in the analysans refer, in their turn, back to these beliefs. The reflexivity is, however, not a weakness of the definition. As Lagerspetz points out, every individual sees the behaviour of all others as a part of his own environment with which he or she has to cope.

What about a situation in the Parliament when there is a significant disagree­ment among its members? In this very situation, can one speak about shared mutual beliefs at all? To my mind, yes. The shared mutual beliefs are the necessary condi­tion for the constitution of a collective agent. The members of the collective agent have to share beliefs concerning what that collective agent is.

A collective agent does not exist at all without this kind of “agreement” or “con­vention”, because in the case of full disagreement, the situation would be similar to everyone warring against everyone else. There has to be at least “agreement” concerning the “hard core” of the agent, and that “agreement” must cover at least the majority of the members. In the simplest form, that mutual “agreement” is as follows: “This is the (Finnish) Parliament”. Whether the Parliamentary members agree as far as a certain material decision is concerned is quite another problem. This disagreement does not concern the constitution of the agent but the content of the law.

What is said now about the ontology has an important consequence as regards the epistemological and methodological perspectives. The “will of Parliament” is only in a very vulgar sense the brute sum of the “wills” of the individual members of Parliament. This could be the case if, and only if, all the members of Parliament:

1. actually have that special “will” (intent to achieve E),

2.

3. there are no interfering factors preventing an individual member from realising his “will”.

In the majority of Parliamentary decisions this is not the case. Therefore, this type of vulgar epistemological or methodological individualism does not hold true. On the contrary, there is a scale of situations, and these situations are not at all like the simple example above.

In an extreme case, a Member of Parliament may even sleep through the whole procedure.

In this case, the individual intention or will of that member does not actually exist.

Thus the principle of moral symmetry discussed by Georg Henrik von Wright in his “The Varieties of Goodness” cannot be applied here either. Von Wright describes this man's sense of symmetry by saying that if my wants are satisfied at the expense of another man's, then why not his wants at my expense. Parliamentary decision­making is not comparable to that kind of moral symmetry.

Normally, Members of Parliament are divided into (political) groups having asymmetric, even contradictory, intentions and, concerning the subject-matter, dif­ferent epistemic beliefs. An individual “will” is not significant in such a system because in Parliamentary voting, individuals normally follow the orders and rules of their political party or reference group rather than their own intentions.

Using von Wright's terminology, the action is rather more parasitic than symmetric. Von Wright defines a parasitic action as follows:

If X adds to the greater advantage of getting his share also the smaller advantage of skipping his due, he will necessarily deprive some of his neighbours of their share in the greater good (von Wright 1971, 91).

This parasitic nature of political relationships is typical of both the formation of the “will of the group” and that of the Parliamentary “will”. Neither of these “group wills” is normally the same as an individual will, or a number of such wills.

Taking all this into account, the above conventionalist view touches the epistemo­logical and methodological core of our problem. It is difficult, even impossible, to identify Parliamentary “will”, “goal”, “purpose” or “intention” simply by reducing it to individual purposive acts. Parliamentary “will” is, epistemologically, always only a result of a political procedure, and speaking about the “will” presupposes the analysis of that procedure from a systemic point of view, as, for example, Werner Krawietz has done in many contexts (Krawietz 1981, 299).

Methodologically, it is thus no sense to try to grasp the individual “wills” of Members of Parliament but to analyse the procedure formulating the “collegial will of the Parliament”. As far as the explanation (understanding) of this procedure is concerned, it may, so to speak, be either norm-oriented or intention-oriented.

A norm-oriented Parliamentary procedure can be understood merely by referring to the norms regulating it. For instance, in order to understand why Parliament fol­lowed a certain order in passing the statute, one may only refer to the wording of the Constitution, according to which no other procedure was possible, and this very fact provides a sufficiently exact basis for our understanding.

However, there are still numerous cases (perhaps even the majority) where it is perfectly inadequate to just refer to certain norms. In these cases, Parliament not only followed certain norms but intentionally chose alternative A instead of B. In these situations, the behaviour is intention-oriented (purposive) in the sense of delib­eration, and there seems to be no problem at all in connecting such notions as “goal”, “intention” and “belief” to a collective agent too, and say, for instance:

The Finnish Parliament behaved in such-and-such a way because it wanted to achieve the goal E and believed the statute S to be a necessary means to realise this goal.

In this case, the “behaviour” of a collective agent, like the Finnish Parliament, also consists of a series of activities, which, in their turn, are constituted by a number of individual actions.

Here we come to another problem close to the essential duties of DSL. This problem concerns the distinction between the will and the intention of the legislator. In DSL, the ontological problem of the will of the legislator is not the core issue. Instead, it is essential to know, why a certain statute was given, and why it was formulated in a certain way. It is this sense of the statute what is important to identify during the research procedure, and here also the intention of the legislator finds its proper place. This is the reason, why the intention has been so important source material in Nordic DSL If the focus is on the intention and not on the will of the legislator, the problem turns to be epistemological and methodological more than ontological one. What does this change of the perspective mean?

As we saw before, legal norms are born as the result of intentional activity. The legislator has a certain goal and a defined belief in the means that lead to this goal, and these premises can be used to understand why the given actions were taken. The model therefore explains not only the fact that law is a teleological phenomenon but also the manner in which law becomes real and the foundation of the binding force of law.

In DSL, the most important methodological problem is to identify the material distinction between the subjective and objective intention of the legislator. The first is the actual meaning, which can be traced from documents and can be clearly artic­ulated or be subject to reconstruction on the basis of the material at hand. This intention is closely connected to the societal power. The legislator, such as the majority of the Parliament, wants to change either the legal or moral basis of society, or both. In this very sense, the political groups represented in the Parliament have a desire for societal power.

In his studies of the Middle Ages, Michael Mann has dealt with societies in which four sources of power could be found - in other words, ideological, economic, military and political ones. These sources were represented by bishops, clerks, noble men and landown­ers. The leading figures in each group had a strong and consequential desire for power. This desire caused hard and dirty struggles between the possible power holders. The struggle for ideological power was especially characteristic of the Middle Ages, but not only for that time (Mann 1986/1992, 1-33).

Since then, ideological power has always been at the core of the societal power structure. The struggle for it in Western democracies is not as dirty as was centuries ago but it is still one of those, often invisible, issues that divide people and political groups. In this regard, the present Members of Parliament can be compared to the medieval bishops and clerks who represented two different, and also contradictory, ideologies of their time. Independent of time and of society, ideological power is important for those who want to monopolise the interpretation of what is good in life as well as the forms of a well functioning society. This kind of ideological power is normally allied with the economic and political power. This is also the case as far as the legislative power is concerned.

From the sociological and socio-psychological points of view, the desire for power is one part of the explanatory basis on which one can understand the behaviour of such a collective agent as the legislator. However, this is not at the core of the present contribution. More important is find out what the role of the intention of the legislator is as regards the teleological nature law.

The law becomes detached from the legislator in the case of old statutes and those in which the legislative history is superficial or lacking; the legislator’s composition may have changed several times in the time between the passing of the law and its interpretation. Partly due to this, it is not natural to state that the newest legislator has confirmed and updated the earlier legislator’s subjective intention. This is not the way in which argumentation in DSL is carried out, nor is there any need for it. Instead, the scholars speak about the ratio of the legislation. The expression refers to law as a system that has become detached from the actual legislator. In the procedure or argumentation, the statutes get a certain content, an interpreted meaning with all things considered, for the audience it covers. The ratio of legislation is thus the result of (rational) legal reasoning, not an argument justifying the conclusion.

The legislator’s intention may also be regarded as a hypothetical one. The hypo­thetical intention refers to the idea the legislator would have presumably had if the given circumstances were known when passing the law, or if they would have been of relevance in terms of the regulation’s content (Aarnio 1987, 125; Perelman 1979, 79). This concept is not essential to the present study, although it can be found in the legislation of some countries, such as Austria (ABGB Art.6).