16 Ratio Juris 1 (2003)

handle is hein.journals/raju16 and id is 1 raw text is: 


Ratio Juris. Vol. 16 No. 1 March 2003 (1-13)


Facts, Fictions or Reasoning.

Law as the Subject Matter of

Jurisprudence


MATTI ILMARI NIEMI


Abstract. This paper deals with the problems involved in the concept of knowledge
in the sphere of law. Traditionally, the idea of knowledge has dealt with the presumption
of given objects of information. According to this approach, knowing means finding
these objects. This is the natural and understandable foundation of metaphysical or
philosophical realism. Cognition and cognitive interest are directed outside the sentences
by which they are described. This is the point of departure of legal positivism as well.
However, it is not possible to see valid law as totally independent of language and
concepts. This makes the idea of legal facts as institutional facts vague. From a practical
viewpoint, the sentences of judges and legal scholars, when they present valid law,
justify rather than describe. Their crucial function is interpretation. Hence, the object-
ivity of these sentences cannot be based on the presumption of separate objects either.
Instead, it has to be based on the principles of acceptable reasoning. Moreover, the
author claims that this kind of approach, united with the utilization of human rights
and substantial legal principles, leads one to acknowledge objective values.


1. Introduction

Is valid law a matter of discovery or creation?' This seems to be an eternal and
fundamental question of jurisprudence. The issue seems to be relevant and
important in contemporary jurisprudential discourse as well. All the estab-
lished or well-known schools have their own independent answers to this
question.
  On a general level and in the long run there seem to be two important
kinds of influencing factors in the background to these answers. One is
the social and political ideals and structures of societies and the other is the
dominant philosophical conceptions. This means that the position of a pre-
vailing school or doctrine of jurisprudence is not only the consequence of its
internal qualities but also of the external influence of society and philosophy.

' I have adopted the opening phrase from Jabbari 1999, 454.
 Blackwell Publishing Ltd 2003, 9600 Garsington Road, Oxford OX4 2D, UK and 350 Main Street, Malden, MA 02148, USA.

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