University of Transnational Business Law

Hägerström, Axel

by Patricia Mindus
Contents
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   1 Problem
   2 Discussion
   3 Related entries
   4 Annotated bibliography

Problem

Hägerström, Axel Anders Theodor (1868-1939), Swedish philosopher. Together with Adolf Phalén, he is one of the two founders of the so-called “Uppsala School”. He is also considered to be the inspirational source of Scandinavian legal realism. Originally educated in the XIXth century-idealism, and later converting to early XXth century neo-Kantianism, Hägerström developed theories in parallel with – yet independently from – some of the major philosophical currents in Europe, namely neo-empirism and logical positivism. Like the Cambridge and Vienna schools, Hägerström firmly believed in Hume’s thesis, the need to distinguish betweenis and ought, facts and values. But unlike the philosophical movements mentioned above, his analysis of language, at least in his earlier writings, is less central than his attention to psychology (as developed mainly by Franz Brentano and Alexius Meinong).

In his work, Hägerström was concerned with both practical and theoretical issues. Today, the most important part of his scholarship is considered to be his teachings in the social, moral and legal aspects of philosophy, and his quite controversial studies on the history of legal thought. It can be argued that these studies (cf. Der römische Obligationsbegriff im Lichte der allgemeinen römischen Rechtsanschauung, Humanistiska Vetenskapssamfundet, Uppsala 1927-41, vol. 1-2; Das magistralische Ius in seinem Zusammenhang mit dem römischen Sakralrechte in Minneskrift utgiven av juridiska fakulteten i Uppsala till hågkomst av dess första doktorspromotion 1629, Lundequistska bokh., Uppsala 1929) provide a kind of case study for his more general theoretical thesis found in other essays (cf. ad instance Social filosofiska uppsater, Bonnier, Stockholm 1939). His scholarship focuses on the gnoseological nature of norms that are, in his words, «neither true, nor false». This approach came to be called axiological nihilism, but it has really quite few points in common with nihilism as a philosophical current. It’s possible to break up Hägerström’s work in three directions: the theoretical problem, the practical dilemma, and the thesis of the case study. Each direction will be considered in turn.

Hägerström first directed his attention to theoretical philosophy, more specifically to the neo-Kantian movement quite popular among German scholars at that time. In his 1902 PhD dissertation titled Kants Ethik im Verhältnis zu seinen erkenntnistheoretischen Grundgedanke systematisch darstellt (Almqvist & Wiksells, Uppsala-Leipzig 1902) he offered an unforgiving anti-psychologist reading of Kant where he stressed that the object of knowledge, for Kant, is not psychological in its nature, but rather a timeless logical principle. In slight opposition to this position, Hägerström later developed a form of radical anti-metaphysical objectivism by arguing that the fundamental error of modern philosophy consists in the idea of consciousness as the only self-evident data. Consciousness refers to something else than itself and, therefore, the objectivity of knowledge has to relate to the nature of the object.

In his largely discussed treatise Das Prinzip der Wissenshaft. Eine logisch-erkenntnistheoretische Untersuchung(K.H.V., Uppsala 1908), Hägerström aims to demonstrate three main theses. First, he considers the fundamental assumption of subjectivism (consciousness is the only self-evident data) to be wrong, because the knowledge we believe to have about our own consciousness presupposes time and space. If consciousness was not inserted into the “the space-and-time context” (“rumsliga och tidsliga sammanhanget”) knowledge would be impossible. Second, Hägerström argued that the classical postulation of philosophy, according to which the world that we perceive would be characterized by a logical form and a non-logical substance, is erroneous since the apparent world is perfectly logical. (This stance later brings him to argue, roughly speaking, that the world we perceive or “the space-and-time context” coincides with the only real world). Finally, metaphysics, portrayed in terms of the search for an absolute entity upon which the world is founded, must be considered fallacious or misleading as it tends to identify reality with a single part of it (like matter for materialism or spirit for spiritualism ad instance). Thus metaphysics would consider other parts of reality as “less real”. For Hägerström, every determination of reality by something else presupposes the reality of the latter. Therefore, reality cannot be defined or determined by something else because what determines reality must then be considered reality as such.

The greater part of Hägerström’s later writings leaves aside the theoretical problems he dealt with in the earlier stages of his scholarship, but his third thesis concerning metaphysics actually forms the thread of Ariadne in his teachings. Indeed, as the Swedish philosopher Anders Westberg later recalls (Filosofiens Historia, Thales, Stockholm 1966, vol. III, p. 366), Hägerström adopted a tainted version of Cato’s aphorism as a motto: praeterea censeo metaphysicam esse delendam. According to Hägerström, metaphysics is nothing but a compilation of words which happen to be connected with emotions. What distinguishes this assumption from other anti-metaphysical positions – quite recurrent in the history of ideas since XIXth century-positivism – is the idea that the metaphysical or “superstitious” web of beliefs not only spreads its mantle over Humanities or Geisteswissenschaften, but also over natural science. On the one hand, this statement enlightens Hägerström’s specific interdisciplinary method, i.e. to link history of religion, history of legal thought, history of science with anthropology, sociology etc. On the other hand, it leads to one of the less glorious pages of Hägerström’s intellectual history: his refutation of Einstein’s theorem of relativity (in Über die Gleichungen der speziellen Relativitätstheorie, in Adolf Phalén in memoriam. Philosophical essays, Almqvist & Wiksell, Uppsala 1937).

Having taught practical philosophy since 1911, no wonder Hägerström turned his attention to the moral, political, and legal aspects of philosophy. Whereas his theoretical writings received attention only in academic circles and for a limited time, his practical philosophy, especially his axiological nihilism, was widely recognized and harshly criticized for some time by both scholars and the public. This is the specific point that later jurists found attractive and which makes the Swedish philosopher the “father” of Scandinavian legal realism. Since truth, according to Hägerström, is defined by logical determination (the absence of contradiction) and corresponds to the reality of the object, there can be no knowledge of values whatsoever. He argues (inKritiska punkter i värdepsykologien, in Festskrift tillägnad E.O. Burman, Appelgrens boktr., Uppsala 1910, pp. 17-75; Om moraliska föreställningars sanning, Bonnier, Stockholm 1911 [English traslation by R. Sandin, On the Truth of Moral Propositions in Philosophy and Religion; Allen & Unwin, London 1964; by Th. Mautner, On the Truth of Moral Ideas, ANU, Canberra, 1971; German translation by D. Lang, Über die Wahrheit moralischer Vorstellungen in “Perspectiven der Philosophie”, 1979, pp. 219-242]; Till frågan on den objektiva rättens begrepp, vol. I: Viljeteorien, KHVU, Uppsala 1917 [partially translated in English by Broad in Inquiries into the Nature of Law and Morals (ed. Karl Olivecrona), Almqvist & Wiksell, Stockholm 1953]; Social filosofiska uppsatser, cit.) that values are only expressions of feelings, and not judgments about reality. His argument is that if values were judgments about reality, their emotional content could be separated from the feeling itself, which is obviously not the case. Hence, in our judgments about values we are not really judging anything. Rather we are just expressing, in the linguistic form of a judgment or assertion, an emotion connected by association to a representation of some kind. The belief in the objectivity of values arises from the habit of associating emotions with specific ideas. In turn, this habit is grounded in education and depends on two factors. The command needs to be derived from some kind of authority (parents, teachers, public authorities or statesmen) which has, in some fashion, a symbolic grip on the individual. And the different commands have to overlap to some extent in society. The idea that a certain action really is good, for instance, is accentuated in the single person by the fact that he finds similar ideas about the rightfulness of that specific action in the social environment. All in all, the belief in the objectivity of values derives from the so-called “suggestive effect” authority has upon the individual due to its symbolic dimension. Therefore, value-predicates (good, evil…) are simply expressions of emotions. Hägerström’s emphasis on the importance of the symbolic dimension of power can be considered one of the motives that brought Cassirer to study Hägerström’s thought (cf. Axel Hägerström. Eine Studie zur schwedischen Philosophie der Gegenwart, Elanders Boktryckeri AB, Göteborg 1939).

In his moral philosophy, Hägerström argues that there can be no teaching in morals, but only about morals. In other words, the moral phenomenon in human life can only be studied from a historical, genealogical (in Nietzsche’s sense) and/or sociological perspective. Such studies would then focus on how the values of a specific morality came to be, rather than on a theoretical standpoint aiming to compare different sets of values. This assumption also implies that no knowledge is really possible about rights and duties. So, to be conscious of your duty actually means that you are experiencing the emotion of being bound by a psychological association with an action considered to be the right one. Since Hägerström endorses the idea that no social system can survive by grounding obedience to the law only on fear of punishment and hence on the mere use of power, he makes the feeling of duty play a significant role in his legal and political thought. Indeed, mankind would fall back into despotism and ultimately anarchy without the “suggestive effect” of authority, which, through symbolic means, allows the psychological association by which we act according to what we consider to be our moral duty. That the definition of duty may vary considerably from person to person does not seem to bother Hägerström as he presupposes large overlaps among the commands of different authorities. This view points, essentially, to a conformist vision of society. This has to be considered a weak point in Hägerström’s theory since it presupposes a fundamentally static society, hardly comparable to what usually goes under the name of globalization or multiculturalism. Moreover, the concept of (legal) “rights” has to be considered merely as “an advantage the individual gets through the legal system”. And by “legal system” Hägerström means the normative system that effectively coordinates the State’s action. This way of considering law is quite similar to legal positivism, but the recurrent emphasis on efficiency and on the actual functioning of the legal system is not too far from an institutional theory of law. However, the nature of the normative system does not depend on mere formalism, but it is grounded in a system of interest between social classes. Concerning the latter, Marx’s legacy is quite evident. However, Hägerström had already focused on the German philosopher in Social teleologi i Marxismen (in Uppsala universitets årsskrift, Almqvist, Uppsala 1909). Among the influences on Hägerström’s intellectual formation, it is also necessary to mention philosophers like Nietzsche and Kierkegaard (both explicitly evoked by Hägerström), psychologists like Wilhelm Wundt, and sociologists like Émile Durkheim and Marcel Mauss. This quite eclectic pattern of influences becomes clearer in Hägerström’s studies on the history of Roman law.

Hägerström spent the last two decades of his life testing his theories on the history of Roman law. The overarching thesis of Der römische Obligationsbegriff is that the model of civil rights in Roman law which still shapes modern law, originated in a specifically legal form of magic, based on animistic beliefs. Obligation, both political and strictly legal, derives from the archaic conception whereby the person owing the obligation was literarily under the potential power of the person to whom he owed allegiance or obligation, a power that could be activated through specific ceremonies in the case of disobedience.
Discussion

The key issue upon which Hägerström’s scholarship sheds light, and also has been the focal point of the philosophical controversies concerning his thought, is whether axiological nihilism and the belief in the unscientific nature of norms necessarily lead to forms of skepticism or nihilism in moral, political and legal action. In other words, does the assumption that norms are «neither true, nor false», i.e. that legal norms neither can be derived from a “common sense of justice” nor from the positive will of the Sovereign State entail moral and legal relativism that, ultimately, ends up in sheer nihilism? Hägerström believed this was not the case. In fact, legal norms need to be considered as a stratification of inter-subjective and effective symbolic forms of language underpinning obligation (especially political obligation) on the one hand, and its counterpart, authority, on the other hand. By considering norms from such a viewpoint, Hägerström believed he had found a way to avoid the idea of Thrasymachus in Plato’s Republic (Rep. I, 338 c), that is the reduction of law to mere use of power.

The strength of Hägerström’s position depends on the fact that it stresses some social factors that need to be considered as necessary preconditions for a well functioning society. In particular, Hägerström was concerned with education and social cohesion. This is why he claims that axiological nihilism does not lead to practical nihilism, but rather entails a new (and, according to him, more scientific and thus nobler) way of thinking about norms. Obedience therefore will no longer depend on the fear of punishment, or on “superstition” (i.e. in his own vocabulary, “metaphysical beliefs”), but rather on a shared comprehension of why norms are necessary for social life and a deeper understanding of how society really works. Consensus thus plays an important role in the Hägerströmian conception of law, even though its origin is often unclear and buried in past times.

As far as alternative philosophical answers are concerned, Hägerström has two different rivals: natural law theories and legal positivism. On one side, legal positivism claims that (civil) law is an expression of the will of the Sovereign, and so the legal dilemma is ultimately a question of deriving the validity of law from the adequate title. Hägerström’s critique of this position, in addition to being rudimentary compared the work of other contemporary jurists, like Maurice Hauriou and Santi Romano ad instance, does not truly hit the core of the issue. By claiming, in opposition to Kelsen (in Till frågan om den objektiva rättens begrepp, 1917; Är gällande rätt uttryck av vilja?, in Festskrift tillägnad prof. Vitalis Nordström, Appelgr. boktr., Uppsala 1916, pp. 171-210 [Eng. traslation by C.D. Broad in Inquiries into the Nature of Law and Morals]; Hans Kelsen. Allgemeine Staatslehre. Recention, in “An International Critical Review of the Humanities”, 1928, 5, pp. 81-99 [Eng. translation by Broad in Inquiries into the Nature of Law and Morals]) that the State has really no will at all, since only human beings, and no collective associations, are able to form a will in psychological terms, Hägerström’s problem here is no longer of a strictly jurisprudential nature. What is interesting in Hägerström’s criticism of legal positivism is that he clearly stresses the feedback effect of the legal system on the individual’s beliefs and actions, a point that legal positivism hardly ever makes (an exception might be found in the conclusive chapter of Kelsen’s Theory of Democracy).

On the other hand, natural law theories, that are nothing more than primitive metaphysical beliefs in Hägerström’s eyes, seem to begin where Hägerström leaves the problem open. Just like the more classical theories of natural law, Hägerström presupposes some kind of “common sense of justice” although he maintains that legal norms certainly do not derive their binding force from such a “common feeling”. Indeed, the binding force depends on the effectiveness of law and, more generally, on social institutions. Nevertheless, what Hägerström calls the “suggestive effect”, caused by the overlapping moral claims of authorities in a society, is precisely a common sense of justice. The main difference between natural law theories and Hägerström’s idea of such a common sense depends on its basis. For Hägerström, there is no need to refer to any supreme being, to the ontological structure of the Universe, to any phenomenological necessity etc. since the common sense of justice can be adequately explained in genealogical terms. The common sense of justice should appear as self-evident to whoever realizes that norms, and thus rights and duties are not objective, but they are necessary. However, he does not explain why the very same sense of justice should be adopted in a traditional society characterized by metaphysical thinking and in a society in which the veil of Maya, i.e. the belief in the objectivity of values, has fallen. Hence, it is difficult to see how it would be possible, from Hägerström’s standpoint, to criticize the exercise of power in society if the only thing we can do is to “understand” the necessity of the existing power.
Related entries

authority,  binding force of the law,  cognitivism,  duty/obligation - moral and political,  efficiency,  legal positivism,  natural law,  obligation to obey the law,  scandinavian legal realism.
Annotated bibliography

E. Cassirer, Axel Hägerström. Eine Studie zur schwedischen Philosophie der Gegenwart, Elanders Boktryckeri AB, Göteborg 1939.

C.D. Broad, Hägerström’s Account of Sense of Duty and Certain Allied Experiences in “Philosophy”, 1960, 26 .

K. Marc-Wogau, Studier till Axel Hägerströms filosofi, Prisma, Uppsala 1968.

B. Persson, Axel Hägerströms värdeteori, Filosofiska föreningen vid Uppsala universitet, Uppsala 1973.

E. Pattaro, Il realismo giuridico scandinavo, vol. I: Axel Hägerström, Cooperativa libraria universitaria editrice, Bologna 1974.

Id., Non si fanno cose con parole. Il negozio giuridico nella prospettiva di Axel Hägerström in “Sociologia del diritto”, 1981, 3, pp. 25-42.

K. Olivekrona, Grundtankar hos Hägerström och Lundstedt. Tre uppsatser, Studentlitt., Lund 1962.

J. Bjarup, Reason, emotion and the law. Studies in the philosophy of Axel Hägerström, Press of the faculty of law, Aarhus, 1982.

F. Schmidt, The Uppsala school of legal thinking, Almqvist & Wiksell international, Stockholm 1978.

D. Lang, Wertung und Erkenntnis. Untersuchungen zu Axel Hägerströms Moraltheologie, Rodopi, Amsterdam 1981.

C. Faralli, Diritto e magia. Saggio su Axel Hägerström, Giuffrè, Milano 1982.

S. Nordin, Från Hägerström till Hedenius. Den moderna svenska filosofin, Doxa, Bodafors 1984.

T. Mautner, Vägledning till Hägerströmstudiet, Almqvist & Wiksell, Stockholm 1994.

S. Castignone, AxelHägerström e la nozione del dovere, Giuffré, Milano 1966.

Id., L'irrealismo scandinavo, in “Materiali per una storia della cultura giuridica” 1984, vol. XIV, pp. 171-189.

Id., Hägerström e il dispotismo in “Materiali per una storia della cultura giuridica” 1984, vol. XVI, pp. 277-283.

Id., Diritto, linguaggio, realtà. Saggi sul realismo giuridico, Giappichelli, Torino 1995.

S. Eliaeson, Axel Hägerström and Modern Social Thought, in “Nordeuropaforum”, 2000, n. 1, pp. 19-30.

R.M. Hare, Sorting out Ethics, Clarendon Press, Oxford 2000.

C.-G. Heidegren, The new Uppsala philosophy and the break with transcendentalism, in “Lychnos. Årsbok för idé- och lärdomshistoria”, 2001, LXV, pp. 71-102.

K. Modéer, Heinz Mohnhaupt (eds.), Europäische Rechtsgeschichte und europäische Integration, Rönnells, Stockholm 2002.