De lege ferenda -tutkimuksesta metodina ja tieteenä
Nyckelord:
de lege ferenda, oikeuspolitiikka, oikeustieteen metodi, feminismi, legitimiteettiAbstract
Research de lege ferenda as a method and a discipline
The article discusses the method and theoretical framework of research de lege ferenda from a feminist legal philosophy point of view. Traditionally, research de lege ferenda (legal policy) has been distinguished from research de lege lata
(legal dogmatics) by analogy. Whereas legal dogmatics has been understood as the interpretation and systematisation of laws and as assistance to adjudication, legal policy has been understood as the systematisation of how to regulate society
in a desired way and as assistance to legislation. The author challenges the traditional point of view. Critical feminist research de lege ferenda is understood as a method of combining several sources stemming from law but also from the lived experience and other disciplines such as philosophy in order to comprehend the need for legal reform. Also the tradition of Scandinavian realism is briefly looked into in order to understand why legal policy has at least in history been excluded from legal scholarship as subjective and arbitrary, and how this problem has been solved by turning to moral nihilism and positivism. These views are challenged as well. The task of a researcher de lege ferenda who is committed to the point of view of the Other cannot be understood in terms of scientific positivism or social engineering but as the task of translating experienced injustice into recommendations de lege ferenda that are faithful to the ethical commitment of speaking out and combating injustice by legal reform. Ethical commitment and scientific value do not exclude each other, but are inseparable parts of doing research de lege ferenda in the 2020s.
