Kohti 2000-luvun oikeuslähdeoppia
Avainsanat:
oikeuslähdeoppi, oikeudellinen pluralismi, perusoikeudet, itsemääräämisoikeusAbstrakti
A doctrine of sources of law for the 21st Century
The doctrine of sources of law expresses and maintains professional identity. What makes a lawyer a lawyer is that she takes a legal perspective. The legal perspective requires a distinction between “non-judicial” and “judicial”. The legitimacy of arguments comes from the fact that they receive a “pass” from the “gatekeeper”, the source of law, which controls the requirement of legality. A lawyer acts like a knowledgeable and skilled professional only by making use of the authority she receives from the sources of law doctrine, within the framework
set by that doctrine.
The article considers the starting points and preliminary content of the sources of law doctrine of the 21st Century. Changes in society and in the globalised world form the background to the analysis. The key word for change is pluralism, and for the doctrine of sources of law, legal pluralism. The doctrine of sources of law needs to be reformed, since pluralism has changed the political governance, made the relationship between justice and morality relevant again, and strengthened the role of systems based on sovereignty.
In the article, the five main changes to the prevailing doctrine of sources of law are:
- The strengthened role of fundamental rights and human rights as both sources of authority and sources of substance, as well as strongly binding sources of synchronisation in influencing the overall composition of sources of law in a dispute situation;
- The status given to autonomous arrangements, such as treaties and the sovereignty of indigenous peoples, as strongly binding sources of substance;
- As a new type of source of law, synchronisation sources, which include the nature of the case (Natur der Sache) and real practical arguments (reella hänsyn), as well as legal experience;
- The open recognition of moral-ethical, cultural, and legal aspects as independent sources of law; and
- The role of jurisprudence as one source of synchronisation.
