Saksasta Suomeen – näkökulma T. M. Kivimäen oikeusajatteluun
Avainsanat:
oikeushistoria, siviilioikeus, oppihistoria, käsitelainoppi, kansallissosialistinen oikeusAbstrakti
From Germany to Finland – a perspective on the legal thinking of T.M. Kivimäki
The article discusses the theoretical views of Professor T.M. Kivimäki. It examines who Kivimäki’s interlocutors were and on what issues. The perspective is limited to German legal literature, which dominates Kivimäki’s academic work. By paying attention to the time of the publication of both of Kivimäki’s writings and the referenced literature, the broader doctrinal and legal-political contexts
of the writings are analysed.
The main influences came from the literature of the 1910s and 1920s. From Germany, came knowledge of Roman law, Conceptual Jurisprudence, the Free Law Movement’s reflections on judicial discretion, and the Jurisprudence of Interests’ interest in empirical research. Although legal literature and legal policy of the 1930s and 1940s were rarely referred to, Kivimäki’s writings reflected topical themes in Germany, such as collectivism, general clauses and the popular nature of legislation.
However, for Kivimäki legal scholarship was legal doctrine, developed in cooperation with the legislator and judiciary. His jurisprudence was conceptual jurisprudence, and he rejected the premises of both the Free Law Movement and the Jurisprudence of Interests. Nor did he accept the basic ideas of Legal Realism.
Kivimäki’s writings reflect his personal history. The articles were written by a person who for a long time worked in legal drafting and lawmaking. Furthermore, he was a pro-German conservative and realist politician, described by Heikki Halila (Professori ja valtiomies Toivo Mikael Kivimäki 2024) as also as a jurist who was sentenced to custody by the War Quilt Trial. Doctrinally, he belonged to the majority of Finnish-speaking legal scholars who supported traditional constructivism. For them, in the politically unstable conditions of the early 20th century, the legalism inherited from the era of Autonomy and the idea of autonomous legal science, legal doctrine as a systematizer and conceptualizer of positive law, suited well.
