248 tauksia siviililainopin alalla”)^^ of 1921, then, seems somehowout of place in a context where the objective theory of interpretation already appeared to have gained a victory over the subjective theory. But it should be borne in mind that in spite of a substantial growth in the amount of legal writing since the middle of the previous century, the number of those interested enough to write on the questions of legal theory still remained small. Besides, upon more detailed inspection, Kivimaki’s subjective theory was much closer to the prevalent objective theory of the time than, for instance, Montgomery’s subjective theory of interpretation. According to Kivimäki, should clear errors - such as editing mistakes - have taken place in the process of the law’s enactment, only a “historical” method was apt to correct them. In order to avoid the subjective dangers of the objective theory and to maximize legal security, an interpretation aimed at the lawgiver’s will was the most suitable. It was, then, the central theme of Kivimaki’s article to propagate jurists’ \xw, Juristenrecht, and it was by way of this feature that Kivimäki’s ideas suit those of his contemporaries. For even the best interpretation, customary law and legal analogy could prove inadequate to fill legal lacunae'., to fill these, legal science and judicial practice were irreplaceable. The judge was no “subsumtional apparatus” {“subsumtsioniaparaatti”), as conceptual jurisprudence seemed to proclaim, but instead a force that actively created law. The role of modern legal science as a uniting element of the different levels of lawis clearly expressed in Kivimäki-^'^: “... a unity of law is at least to a certain extent reached bv judge-made law. Thus, the unity does not exist, but has to be created. It is not the task and essence of legal dogmatics only to svstematically expose the contents of the law in force, but also to find it.” At the latest, the juxtaposition of subjective and objective theories ended with Otto Brusiin, as it is no longer discussed in his works. In a way, the objective theory had won the battle, for the main argument since Brusiin has rested on the necessity to accommodate legal interpretation to the needs of the present - however those are to be determined. On the other hand, the subjective theory was reserved a place in the prevailing theory of legal sources in the form of travauxpréparatoires. In his classic work “Judicial Discretion in Cases where a Norm is Lacking” (“Tuomarin harkinta normin puuttuessa,” “Das richerliche Ermessen in Liickenfällen”) of 1938, Brusiin determines the concept of “social reality” as a source fromwhich all judicial wisdomsprings. In cases where no normexists, the judge must read the social reality, taking adThe article was meant to describe the new continental legal theories in general, not only the theories of interpretation. Kivimäki 1921 p. 388; saavutetaan juristioikeuden avulla ainakin jossain määrin oikeuden \ htenäisyys. Se ei siis ole olemassa, vaan se on luotava. Lainopin tehtävä ja olcmus ei ole ainoastaan jo olemassaolevan oikcussisallyksen systcmaattincn esittämincn, vaan myöskin sen löytäminen.”
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