Law, Tradition and Interpretation. International Journal for the Semiotics of Law 1/1998.

Jarkko Tontti: Law, Tradition and Interpretation

International Journal for the Semiotics of Law Vol.XI, No31, 1998, p. 25-38.

See also Right and Prejudice.

Abstract

The paper seeks to construct answers to the ontological and epistemological problems of legal philosophy from the basis of continental hermeneutics as it has been developed by Martin Heidegger and Hans-Georg Gadamer. First it is argued that the ontological status of law is constituted by a dialectical interplay of tradition and interpretation. The scope of hermeneutics is widened from the interpretation of legal texts (legal sources) to the interpretation of the whole tradition of law, including e.g. practical legal work. The tradition of law is an on-going process of conflicting interpretations, where different interpreters (courts, the legislator, advocates, scholars) compete to get through their views. Secondly it is suggested that the epistemology of law must start from a reconsideration of the Is-Ought distinction: every proposition contains, at least implicitly, a normative demand that the claim ought to be accepted by others. Correct proposition about law has two requirements: It must be in coherence with the tradition and answer the present interpretative question adequately. Adequate decision results when the tradition of law enters into a dialectical relationship with creative and critical interpretation, which guarantees dynamism and the change of the tradition. Tradition only gives the framework or the context in which every interpretative question of law must be answered. There are no non-contextual criteria to distinguish correct interpretations from incorrect ones.

I

In this paper I am seeking to develop an approach to legal philosophy from the basis of hermeneutical philosophy, as it has been developed in the continental tradition during the 20th century.[1]  The basis of our inquiry is the so-called ontological turn, initiated by Martin Heidegger and continued by Hans-Georg Gadamer, which has changed the focus of interest in hermeneutics from the questions of methodology and epistemology of the human sciences (Geisteswissenschaften) to clarification of the ontological foundation of existence.  The first question I am trying to answer in this article (section II) is: What is the ontological status of law in a situation where, in Heidegger’s terms, Dasein’s being-in-the-world (in-der-Welt-sein) is considered to be interpretative in a primordial way?[2] In other words, how to conceive the nature of the human artefact called law, when the main constituent of human existence itself is interpretation?  One central insight of Gadamer’s philosophy is that the interpreter and the object of interpretation are joined together by the common tradition.  What is involved in understanding, therefore, shifts from the methodologically systematic reproduction of an object to the participation in on-going interaction between past, present and future.  Interpretation and understanding do not aim at objective knowledge through the use of methodological procedures but at the explication of existence in its historicity.[3]

Using hermeneutics as a methodology of legal science and decision-making is characteristic of the so-called analytical legal theory.  Following the pre-Heideggerian and pre-Gadamerian conception of hermeneutics, the analytical school sees hermeneutics as the way to find correct techniques of interpreting legal texts (the officially accepted collection of legal sources).  With Paul Ricoeur’s important insight that also meaningful human actions can be understood and interpreted as they were texts, and therefore included within hermeneutics, it is possible to overcome this limitation.  Consequently, we can include the interpretation of non-written parts of law, such as tacit structures of practical legal work, to our scheme of hermeneutical philosophy of law.

The second aim of this paper is to examine the possibility of an epistemology of law after the ontological turn.  The intersection point of ontology and epistemology, scrutinised in section III, is offered by the work of Gianni Vattimo, who stresses the conflict of different interpretations as a constitutive element of human activity. This insight opens a way to avoid passive obedience to the authority of tradition. The dimensions of creativity and critique must be added to the Heideggerian-Gadamerian scheme of ontological hermeneutics to construct an answer to the epistemological problem of law.  Proposition about law is always a new interpretation added to the tradition of earlier interpretations, which gives room for taking a critical attitude towards what has gone before.  The demands of the present and aims to change the future can reshape the legal tradition.  In section IV it is argued that the aim to find a non-contextual criteria to distinguish correct propositions – that is, interpretations of the tradition of law, from incorrect ones – must be abandoned and a re-consideration of the Is-Ought distinction is needed in order to clarify the epistemological status of propositions about law.  The proposed new interpretation of the distinction between Is and Ought stresses the point that every statement contains an implicit demand that all the others too accept the statement.  In this sense every proposition contains an element of normativity.  Legal knowledge is produced by different interpreters of the tradition of law whose normative propositions about it constantly conflict.

II

The importance of tradition in legal context has been emphasised by Martin Krygier who correctly asserts that law is a profoundly traditional social practice.  This picture is in sharp contrast with the mainstream of legal philosophy, which – ever since Hobbes – has concentrated on the world of the present, i.e. the world of commands, sanctions, rules and principles.  Against this time-free view Krygier emphasises the traditional elements in law and argues that every tradition has three basic elements:[4]

1) Pastness.  Every tradition is composed of elements drawn from the real or an imagined past.  Also, in every established legal system the legal past is central to the legal present.  Over generations law records and preserves a composite of beliefs, values, myths and rituals.

2) Authoritative Presence.  Much of the past does not enter into any tradition.  Only that part of the past which is presently authoritative is treated as significant.  In this way legal reasoning is thinking like a ”bad historian”.  Krygier quotes Douglas Hay according to whom thinking like a lawyer is what historians call presentism; the fallacy of working from present concerns to past origins, is anathema to historians, but necessarily half of the lawyer?s method.[5]

Here Krygier’s view needs some adjustment. He seems to deny the inescapable nature of all historical study, that we can only write history from the perspective of the present.  Hay and Krygier’s argument comes close to the old positivist model of science, according to which the past can be studied in itself, objectively and without any influence from the present.  I would like to stress that from the point of view of hermeneutical ontology adopted this paper the strict distinction between object and subject is untenable.  In the hermeneutical circle, which is the fundamental structure of understanding, the subject enters in the knowledge of the object and consequently the former is affected by the hold the object has upon it.  And this takes place even before the subject consciously comes to know the object.[6]  Objectification, then, is always only a matter of degree, especially in human sciences.  As François Ost has argued, the present, the past and also the future live in a reciprocal, dialectical relationship, each affecting the others.[7]

According to Krygier the past always has a hold over the present.  But it is also important to notice that the present has hold over the past.  The present determines what is relevant for us in the past, but the past gives us the choices of which we must choose in the present.  The future is, in its turn, affected by the present (and the past); in legal context this is evident for example in that every decision by a judge contains an implicit demand that in similar circumstances similar decision should be given also in the future.

3) Transmission.  Traditions do not automatically exist wherever the past has authoritative presence.  There is a third element in each tradition: transmission.  Traditions depend on real or imagined continuities between the past and the present.  These continuities may be formalised and institutionalised as they are in the institutions of law, but they need not be.[8]

By developing Krygier’s arguments further I would now like to propose that there are at least five modes of transmission of tradition in law: legal scholarship, precedents, practical legal work, legislation and legal education These all contain a crucial element –  the importance of which is underestimated by Krygier – interpretation.  It seems that, even if he criticises skilfully the mainstream legal theory, which does not take into account the dimension of time, Krygier still conceives interpretation as a method, with the aid of which tradition is transmitted.  He makes a strict separation between tradition on one hand and interpretation on the other.  I find this distinction unacceptable, in my opinion it is precisely the intertwined and dialectical relationship of tradition and interpretation which constitutes the ontological status of law.

All five modes of transmission of legal tradition are inherently interpretative activities, which is an unavoidable consequence of Dasein’s being-in-the-world as interpretative in a primordial way.  In the case of legal scholarship (legal dogmatics) this interpretative nature is easily seen; Legal dogmatics, as Aulis Aarnio has argued:

.  .  .  is not an empirical science as far as the confirmation of the norm statements is concerned.  It deals with language, with the meaning of the statutes.  In this regard, legal dogmatics is interpretative as to its nature and it belongs to the same family of research as the human sciences (Geisteswissenschaften).[9]

Mainstream legal dogmatics, however, is based on fallacious self-understanding; it upholds the illusion that there exists a real separation between the law (the codified law and the precedents) and its interpretations.

Precedents of the courts and other law-applying officials are also interpretations of the legal past and applications of this past to the present.  The past, however, is not only the officially accepted collection of legal sources but the whole tradition of law, including e.g. practical legal work and ensuing tacit professional knowledge.  Here it is helpful to recall Gadamer’s concept of the history of effect (Wirkungsgeschichte), which indicates that one can never interpret without being affected by the tradition of earlier interpretations and the ensuing prejudices concerning the object.  The history of effect of the legal tradition has a hold over the judges, whose choices of interpretation are thus limited.  There cannot be adjudication outside the tradition of law; even the choice to explicitly change the old precedent is not a completely free choice.  The interpretative choices available are limited by the tradition, though not absolutely determined by it.

Practical legal work is also inherently interpretative and tradition-bound.  In fact, the situation of an advocate pleading for his client in court is from a theoretical point of view identical to that of a judge who finally gives the decision.  They both seek to find an acceptable answer to the present question with the help of the legal tradition, in other words they both interpret the legal tradition and at the same time add new parts to the tradition.  An influential decision of the Supreme Court, of course, has greater effect on the future decisions than argumentation by some advocate – its effect on tradition is stronger – but theoretically both advocate and judge do exactly the same interpretative work.

In analytical legal theory hermeneutics is considered to be a philosophy or methodology of interpreting legal texts, i.e. the officially accepted collection of legal sources.[10]  I find it difficult, however, to accept this distinction between legal sources and their interpretations.  With the change of focus from methodology to ontology I assert that all so-called legal sources (e.g. acts and regulations of positive law, precedents, unwritten legal principles, influential doctrinal writing) can be conceived as interpretations of the tradition of law, i.e. tradition of social practices commonly recognised as law.  Interpreting the tradition means simultaneously taking part in that tradition and constructing new parts of it.

Because legal tradition also includes practical legal work it does not always appear in textual form.  Non-written practices of practical legal work, for example, constitute the tacit traditional knowledge that prevents laymen from understanding the law even if they would know all the explicit rules of certain jurisdiction.  Non-written practices are passed down from one generation of lawyers to the next one through practical training and work experience, which follow the theoretical university education.  However, it is still possible to understand within the hermeneutical paradigm the non-written parts of legal tradition because, as Paul Ricoeur has proposed, all meaningful actions can be understood as texts.  We can apply Ricoeur’s three distinctive characteristics of a text also to an action belonging to legal practice:

1) Action understood as a text renders the action autonomous with respect to the intention of the actor; i.e. what the action signifies no longer coincides with what the actor meant.

2) Action understood as a text also transcends the psycho-sociological conditions of production of the action and thereby opens itself to an unlimited series of interpretations, themselves situated in different socio-cultural conditions.

3) In contrast to a present situation where the interpreter is determined by the situation, action understood as a text creates an audience which, in principle, extends to anyone who can read.[11]

Therefore, even if we widen the scope of hermeneutics to cover the interpretation of meaningful actions, e.g. practical legal work, we can still uphold Gadamer’s assertion that ”Being that can be understood is language”,[12] in other words, all human activity is profoundly linguistic and it is impossible to go beyond language.  An interesting comparison can be made between Ricoeur’s view of actions understood as texts and the speech-act theory of J.L. Austin.[13]  Whereas Austin’s theory is concerned with the problematic of performing actions with words (performative utterances), Ricoeur is interested in interpreting actions as they were texts.  They both stress the central position of language in human activity, but approach the problem from different directions.  Austin develops the viewpoint of an actor, whereas Ricoeur elaborates the spectator’s point of view as the interpreter of actions.  It has to be noticed, however, that according to Ricoeur there is a fundamental difference between a spoken language and a written text; a difference, which to my knowledge is not taken into account in the speech-act theory.

Legislation may seem at first sight to be free from the hold of tradition.  Are not parliaments empowered to do whatever they want to do? Were the old traditional legal practices not broken by the modern codifications? My answer is negative.  Acts and regulations of positive law are also firmly connected to the legal tradition; conceptual framework, unwritten principles, tacit structures of legal thinking shape the work of every law-giving organisation.  When giving a new piece of legislation the parliament is answering the demands of today with the tools drawn from the past and with an aim to affect the future.  It applies the legal tradition to the present and by this application it changes the tradition with the aim of achieving coherence between the past, the present and the future.  Also, law-giving organisations are definitely not free to do whatever they want to do.  Every piece of legislation is already an application of itself (even if it has not yet been actually used by any court or official organ) because legislation is always based on hypothetical applications to imaginary (but possible) cases.

Legal education can be understood as an institution of passing down the tradition of legal thinking to future generations.  We can distinguish between formal university education and informal and practical education, which, to my knowledge, is required in most European countries before a young law-graduate, is able to start his career as a practising lawyer.  There is no necessary link between legal scholarship and education even though they are usually conducted within same institutions.  They both share, however, the use of hypothetical cases to interpret the legal tradition, which gives them an opportunity to underline those parts of the law which are considered to be important.

To understand law as the interpretation and the application of tradition can be characterised as a holistic approach.  It denies the existence of strict boundaries between different types of legal activities and underlines the interpretative and traditional elements which affect all these – mostly ’behind the back’ of those who are the most important actors in the legal world.

In older Finnish philosophy of law an opposite view was presented by Otto Brusiin, who maintained that there are two separate spheres of legal reasoning: the abstract world of legal science and the concrete world of the judge deciding the actual cases.  Consequently, according to this view, there is also a distinction between a legal order- which is ultimately based on power relations – and a legal system which results from the theoretical efforts of legal science.[14]  Even though Brusiin claimed that the task of the judge is also linked to the theoretical sphere, he was still of the opinion that the separation between these two is real and important.[15]

From the perspective of hermeneutical philosophy of law, which I am trying to develop here, this distinction is untenable.  It is clear that, if we would ask from a judge whether he considers his job to be the same as that of a law professor, we would certainly get a negative answer; decisions by the court have direct and concrete effects on human beings whereas a monograph on contract law by a professor of private law has not.  But it is important to remember that the works of legal scholars have also their effective history, i.e. the interpretations of legal scholars affect the legal tradition through legal education and also when, or if, judges and other legal professionals read the books written by the law professors.  In this way scholarly interpretations can, indeed, have much greater effect on legal practice than it is usually accepted; the history of effect works most effectively when its influence is not consciously noticed.

Therefore, I maintain that from the philosophical point of view all persons engaged in legal thinking and practical legal work produce competing interpretations of the legal tradition, which simultaneously are also applications of this tradition, either to real and concrete cases by the judge, the advocate and the civil servant, or to hypothetical cases by the law professor, the law student and the legislator.

III

Gianni Vattimo has developed hermeneutics to a direction, which helps to clarify the intersection point of ontological and epistemological questions of law.  Vattimo holds that in its widely accepted ”koiné-form” hermeneutical philosophy after the work of Heidegger can be defined by two principles:

1) The questioning of metaphysical fundamentalism and critique of all first principles and a priori-conditions of knowledge.

2) The conception of the world as a conflict of interpretations.[16]

In philosophy of law Vattimo’s first principle seems to be a justified starting point; legal knowledge is a social construction.  It has no a priori basis in any ’natural law’, even though different natural law theories are important sources of knowledge about firmly held moral convictions.  They are still only human fabrications with no other transcendent basis than the intertwined traditions of legal and moral thinking.

Vattimo’s second principle seems to be even more important.  Following his insight, I maintain that the whole tradition of law can be understood as an on-going process of conflicting interpretations which compete to reach a position of hegemony over the other interpretations.  In cultures where legal tradition is old and relations between competing centres of power are stable – as in western Europe – this situation of constant conflict has taken a form in which certain interpreters, e.g. the legislator and the highest courts, are generally accepted to have dominant positions.  However, in order to prevent a situation where some powerful interpreter gains an indisputable position over others it is important to keep up the balance of power by maintaining the possibility to present competing interpretations against the dominant ones.  In a democracy these critical interpretations are produced by for example advocates, legal scholars and the media.

This model, then, questions Hans Kelsen’s view that the legal system is a pyramid with the Grundnorm at the top, below it the constitution and then other lower level norms in hierarchical order.[17]  The life of law is better understood as a field of production of legal knowledge.  Even though the legislator and the highest courts do clearly have dominant positions as interpreters of the tradition, the legal past is full of examples where this position is successfully challenged; there are several opportunities to construct ?points of resistance? against the dominant interpreters.  This view is a radicalisation of François Ost and Michel Van de Kerchove’s assertion that there sometimes occur strange loops (boucles étranges) in legal practice, which challenge the hierarchical order of the legal system.[18]  My argument is that these loops are not so strange after all, but represent the intrinsically conflicting nature of law.  The constant competition and friction between different interpretations of the tradition guarantee the dynamic and dialectical development of law.

Conceiving the tradition of law as a field of conflicting interpretations opens the path to dimensions of creativity and critique.  There is a creative aspect in every act of interpretation (and application) and consequently a possibility of critique of the tradition.  Because every situation is unique, at least in some aspects, every interpretative solution is necessarily creative.  The role of creativity in legal reasoning was scrutinised also by Otto Brusiin.  He argued that even though the judge does not find the already existing norm, the creativity he or she needs to construct a legal decision does not mean complete freedom as it is in the case of an artist, for example, but the judge is constrained by the nature of the legal order, the tradition in our terms.[19]  Even the so-called routine cases, then, demand the interpretative decision to classify them as routine, which in turn is determined by tradition, though not completely and thereby giving space to creativity and critique.

IV

Now, at the centre of the epistemological debate of law and legal science is the assumed distinction between Is and Ought.  This deeply rooted conviction that there is a strict distinction between two separate modes of utterances: descriptive and prescriptive, is a source of several misunderstandings of law.  In this section I will try to construct a hermeneutic alternative to this dogmatic belief which is a good example of an epistemological obstacle (a concept developed by Gaston Bachelard)[20] which hampers the development of science.

One common consequence of accepting the is-ought distinction is that the maxim ”No Ought From Is” is also considered to be fundamental.  No amount of information about the facts of the world provides proof that anything ought to be done or not done.  The origin of this doctrine is usually traced back to the Scottish philosopher David Hume and afterwards it has been named Hume?s Guillotine.  In ”A Treatise of Human Nature” Hume wrote:

In every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surprised to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not.  This change is imperceptible; but is, however, of the last consequence.  For as this ought, or ought not, expresses some new relation or affirmation, it is necessary that it should be observed  and explained; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it.[21]

The effect of Hume’s work to the development of philosophical thinking has been enormous.  In Gadamer’s terms, Hume’s Wirkungsgeschichte, the effective history of the interpretations of his ideas, has spread through the western philosophy and the maxim ”No Ought From Is” has become an unquestionable credo for many philosophers.  G. E. Moore developed his own version of the Hume’s Guillotine according to which deriving values from facts means confusing natural properties with non-natural properties and therefore results in the so-called naturalistic fallacy.[22]  As is well known, Hans Kelsen’s contribution to legal theory is also based on the strict separation between the world of Sein and the world of Sollen, even though he received the idea through Kant’s philosophy.

The division of language into different modalities, like alethic (factual) and deontic (normative), is a good example of the analytical inclination to ”cut reality into pieces”.[23]  I do not consider this approach very successful; I am more in favour of the holistic approach where strict distinctions are not accepted and the aim to force everything into the narrow straitjacket of formal logic – an example of modern hubris – is given up.  But this unsuccessful project is, I think, a good example in favour of my own view, according to which every proposition contains an element of prescriptivity; i.e. every statement includes at least implicitly a normative claim.  Modal logic, then, does not tell us about the structure of language, what are the modalities of language, but rather what they ought to be, in other words the logicians’ aim, largely unconscious, was to establish rules how people should use language, not to tell how they actually use it. Unfortunately, language, as all human activity, is too complex, and constantly re-shaping itself, to be reduced into formal categories fabricated by philosophers.

The claim that every statement is more or less normative may sound strange.  An example helps us to clarify the central idea: Let us suppose that I am in a room with other people and point my finger at a table and say: ’This is a table.’  What am I actually doing by this utterance? The answer is: I name the object table and demand, implicitly, that all the others too accept my claim.  Normativity is not just an explicit mode of speaking but is present in all human activities; it stems from our personal interpretations of the world and from the power relations in the conflicts between interpretations.  Below the surface level of language usage there is a constant struggle to get through one’s interpretations; a competition about who structures the world most successfully.  Therefore, it is better to understand normativity as a matter of degree.  Or if we want to construct a simplified version in order to ease discussion, we may make distinction between explicitly and implicitly normative statements.

This line of thought can be compared with Austin’s speech-act theory. According to him performative utterances are not true or false. With performatives we do things, not just say things.[24]  But when setting out the conditions which must be fulfilled for a speech act to be performed Austin does not take into account the dimension of conflict between speech-acts.  Therefore, with the speech-act theory we cannot adequately make a theoretical re-construction of the conflict-dimension of social reality.  The question of power relations between interpretations and interpreters is left without answer.

The abandonment of the strict distinction between Is and Ought can help us to find new answers to the problems of legal epistemology.  When we focus our attention on the view that legal universe is constituted of a field of production of legal knowledge where different actors try to get through their interpretations of the legal tradition, it is evident that the ’object’ of interpretation, law, is no more clearly different from the new interpretations (propositions about law), which are constantly being produced.  Also the ’subjects’ of interpretation – the various actors of the legal world – cannot be clearly separated from the ’object’ of interpretation.  That is, as creators and carriers of the tradition they are not distinct from it, but partly – with the written records – constitute its present situation.

The necessary basis of correct knowledge of law (a justified proposition about law) is accordance (coherence) with the tradition.  But that is not enough; it is also demanded that the new interpretation of the tradition answers the present interpretative question (a hypothetical or a real legal case) adequately.  But what does adequately mean?  It is not correctness in the sense of the correspondence theory of truth and knowledge.  Adequate answer to the present interpretative question results when the tradition enters into a dialectical relationship with creativity and critique, which makes the criteria of correctness necessarily contextual.  Tradition does not bind us in a way that it could give one right answer to every question posed to it.  Its binding force is more abstract; it gives the framework or the context in which every interpretative question must be answered.  That is, tradition gives the limits to the decision.  After this limitation it is the task of creative and critical reason to construct an adequate decision.  Therefore, there are no non-contextual criteria to absolutely distinguish correct legal interpretations from incorrect ones.  In order to be a living tradition the legal tradition must be a changing tradition.

Jarkko Tontti

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[1] Another trend in modern hermeneutics can be characterised as analytical hermeneutics.  This orientation is connected to the neo-Wittgensteinian philosophy of ordinary language and the critique of logical positivism as developed in Wittgenstein’s later work ’Philosophical Investigations’.  Analytical tradition includes such philosophers as Georg Henrik von Wright, Charles Taylor and Peter Winch and legal theorists such as Neil MacCormick and Aulis Aarnio.  Even if several thematic links can be found between continental and analytical hermeneutics, as Aarnio has argued, I find the differences between the two significant and restrict the scope of this article to the continental tradition.  Cf. G.H. von Wright, Explanation and Understanding (London: Routledge & Kegan Paul, 1971) and A. Aarnio, Philosophical Perspectives in Jurisprudence (Helsinki: Societas Philosophica Fennica, 1983), 47-75.

[2] M. Heidegger, Sein und Zeit (Tübingen: Max Niemeyer Verlag, 1953), §7.

[3] H-G. Gadamer, Wahrheit und Methode. Grundzüge einer philosophischen Hermeneutik (Tübingen: J.C.B. Mohr, 1990), 281-290.

[4] M. Krygier, ’Law as Tradition’, Law and Philosophy 5 (1986), 237-262.

[5] D. Hay, ’The Criminal Prosecution in England and its Historians’, Modern Law Review 47 (1984), 1-29 at 18-19.

[6] P. Ricoeur, Du texte à l’action.  Essais d’herméneutique II (Paris: Éditions du Seuil, 1986), 92.

[7] F. Ost, Mémoire et pardon, promesse et remise en question. La déclinaison éthique des temps juridiques (Brussels: European Academy of Legal Theory, Unpublished course material, 1997).

[8] Supra n.4, at 250-251.

[9] A. Aarnio, The Rational as Reasonable. A Treatise in Legal Justification (Dordrecht: D. Reidel Publishing Company, 1987), 199.

[10] A. Aarnio, Reason and Authority. A Treatise on the Dynamic Paradigm of Legal Dogmatics (Aldershot: Ashgate and Dartmouth, 1997), 153.

[11] Supra n.6, at 183-189 and 111-112.

[12] ”Sein, das verstanden werden kann, ist Sprache”, Supra n.3, at 478.

[13] J.L. Austin, How to do Things with Words (Oxford: Oxford University Press, 1962).

[14] O. Brusiin, Tuomarin harkinta normin puuttuessa.  Zusammenfassung: Das richterliche Ermessen in Lückenfällen (Vammala: Suomalainen lakimiesten yhdistys, 1938), 194-195.

[15] H. Tolonen, ’Tuomarin harkinta normin puuttuessa. Otto Brusiinin väitöskirjan tarkastelua aikalais- ja nykykeskustelussa’, Lakimies 1 (1997), 25-63.

[16] G. Vattimo, ’Hermeneutiikka ja demokratia’, Tiede & Edistys 1 (1997), 48-53.  Based on a lecture given at the University of Tampere in March 1996: Ermeneutica e democrazia.  Translated by Jussi Vähämäki.  See also G. Vattimo, Oltre l’interpretazione (Roma: Gius Laterza e Figli S.p.A., 1994).

[17] H. Kelsen, Reine Rechtslehre (Wien: Verlag Franz Deuticke, 1960).

[18] F. Ost & M. van de Kerchove, Jalons pour une théorie critique du droit (Bruxelles: Publications des Facultés Universitaires Saint-Louis, 1987), 205-210.

[19] Supra n.14, at 117-125.

[20] G. Bachelard, La formation de l’esprit scientifique (Paris: Vrin, 1980).

[21] D. Hume, A Treatise of Human Nature (London: Penguin Books, 1984), 521.

[22] G.E. Moore, Principia Ethica (Cambridge: Cambridge University, 1971).

[23] Other modalities invented by the logicians are for example epistemic and existential.  See G.H. von Wright, An Essay in Modal Logic (Amsterdam: North-Holland Publishing Company, 1951).

[24] Supra n.13, at 5-6.