Konkreettinen oikeuslähdeoppi: normimateriasta rakenteisiin ja ratkaisutoimintaan
Avainsanat:
oikeuslähdeoppi, oikeusteoria, strukturalismi, realismiAbstrakti
A concrete theory of sources of law: From normative materiality to structures and judicial decision-making
Sources of law are considered as the origins of valid law and principles for adjudication. They underlie legal practice, dogmatic studies of law and jurisprudence. In modern law, there are no transcendental sources (such as natural law or reason). In contrast, sources are immanent normative elements (positive legal order), even though they may be related to ethical and moral issues. Instead of asking what sources of law are in modern law, the author addresses a more fundamental question: Why sources of law? Could we do without the traditional hierarchical and stable theory of sources of law? Perhaps, in the contemporary situation of globalisation, transnationalisation and digitalisation of the law, the relative coherency and consistency, as well as legitimacy, of the law ought to be or could be based on human rights, fundamental freedoms and the principles of democracy and rule of law. That said, the author considers that we should go beyond the traditional theory and insists that we do need a new theory of sources of law. The author elaborates a more dynamic theory, that is, a concrete theory of sources of law, based on the multiplicity of normative materiality and structural analysis. At the same time, the proposed theory is connected to a rethinking of legal realism.
