University of Transnational Business Law

Scandinavian Realism

by Jes Bjarup


1. Introduction

The term “Scandinavian realism” was introduced in the 1940s to refer to a group of philosophers and law professors from Sweden, Denmark and Norway taking their starting point in the philosophy put forward by the Swedish philosopher Axel Hägerström (1868-1939). Hence also the use of the term “the Uppsala school of legal thinking” for the movement that comprises the Swedish lawyers Anders Vilhelm Lundstedt (1882-1955), professor of law in the University of Uppsala and Karl Olivecrona (1897-1980), professor of law in the University of Lund, and the Danish philosopher and lawyer Alf Ross (1899-1979), professor of law in the University of Copenhagen as the most prominent members that are dealt with in this article. Other members of the movement include Ingemar Hedenius (1908-1982), professor of philosophy in the University of Uppsala, Per Olof Ekelöf (1906-1990), professor of law in the University of Uppsala, Tore Strömberg 1912-1993), professor of law in the University of Lund, and Theodor Geiger (1891-1952), professor of sociology in the University of Aarhus. The movement is characterized by a sustained attack on metaphysical ideas as manifested in the opposition between realism and idealism. Realism holds that there is but one world, the world of reality that is related to empirical cognition whereas idealism holds that there is also another world of values related to normative cognition. Realism locates the law as part of the world of reality in terms of facts that is related to legal cognition as empirical knowledge of social facts. By contrast, idealism holds that the law must also be located in the world of values that makes room for normative cognition.
2. Philosophical Background

Hägerström’s philosophical perspective is grounded in reason and concerned with the ontological and epistemological conditions that make empirical knowledge of the world possible which is expressed in his motto “Praeterea censeo metaphysicam esse delendam” (moreover I propose that metaphysics must be destroyed). His anti-metaphysical view rejects the existence of a meta-physical reality or supernatural world beyond the existence of the physical reality or natural world. However, he is committed to a metaphysical or ontological view that maintains the completely logical character of reality and this implies that reality is intelligible but not in terms of a spiritual reality of ideals and values but in terms of the physical reality of things and their necessary relations that exist apart from the human mind. Hägerström is committed to the realistic view that concepts are embedded in the facts of physical reality that make an impact upon the minds of human beings using their senses of sight and touch to arrive at knowledge of reality to be expressed in meaningful words in terms of concepts that can be used to express judgements since the truth of a judgement is the reality of the thing. The philosophical task is to use a conceptual analysis in order to determine whether words correspond to facts and thus express concepts or rather are words devoid of meaning. Hägerström calls his philosophy rational naturalism since it provides the secure foundation for the pursuit of scientific knowledge based upon the naturalistic approach that everything in nature is what it is. His model for knowledge is botany rather than physics and this implies that the classification of the quality of things is more important than the quantity of things that is related to measurement and movement that is the concern of physics. It follows that the physical reality cannot be described and explained in mathematical concepts but only in naturalistic or empirical concepts referring to natural properties and their causal relations. Hägerström’s naturalistic approach is followed by Lundstedt, Olivecrona, and Ross, although he in his later writings shifts his allegiance to logical positivism, rejecting metaphysics by reference to the principle of verification and his model for knowledge is physics. But they share the commitment to use the method of conceptual analysis to instigate a revolt against the traditional ways of legal thinking that must be replaced by scientific thinking about morality and law.
3. Morality and Moral Knowledge

Hägerström’s rational naturalism holds that the physical reality is devoid of any values that informs his conceptual analysis that there can be no moral reality in terms of moral concepts embedded in things and human beings. This ontology is a version of nominalism that is related to his epistemological view that there can be no moral knowledge. Thus he rejects the appeal to the principle of utility or happiness as the supreme principle of morality since moral concepts cannot be defined in non-moral concepts in terms of empirical facts of sensations of pain and pleasure. He also rejects Kant’s appeal to the will as practical reason as the foundation for the supreme principle of morality respecting the equal freedom and dignity of human beings as rational persons and responsible agents since reason is confined to theoretical reason. Thus Hägerström subscribes to non-cognitivism in terms of an emotive theory that moral sentences do not express propositional attitudes of beliefs that can be true or false but are used to express emotional and conative attitudes of feelings and emotions in order to regulate human behaviour. Hägerström’s moral philosophy has been called moral nihilism since it denies the existence of moral goodness, moral obligations and moral or natural rights. He is, however, at pains to stress that this does not imply that people should behave immorally since the moral vocabulary can be used to regulate human behaviour in order to establish peace among people. However, his moral nihilism leads to moral scepticism or the denial of moral knowledge expressed in moral propositions concerning what is good or bad, and right and wrong as reasons for belief and action. It follows that there can be no moral criticism of the positive law. But there is room for science about morality in terms of sociology and psychology based upon a naturalistic approach that is concerned with the description and explanation of the causal relations between the use of the moral vocabulary and human behaviour.

Lundstedt follows Hägerström’s emotive theory and advances the method of social welfare in terms of social aims as opposed to the method of justice in terms of right and duties for the critique of the positive law. This meets with critique from Ross since Lundstedt’s method is another version of utilitarianism which is false, and besides it presupposes that there is moral knowledge which Ross rejects, endorsing Hägerström’s moral scepticism. Lundstedt retorts that his view has the support of Hägerström and Ross’s replies that Lundstedt is not a philosopher. The battle between them is in the end about who is to count as leader of the Scandinavian realists. Olivecrona follows Hägerström to hold that that evaluation of the law is not a scientific matter. This is also Ross’s view although he shifts his allegiance to Charles Stevenson to support an emotive theory of ethics.
4. Law and Legal Knowledge

For Hägerström, the law is a necessary condition of organized social life within a state. This implies that it becomes of the utmost importance that legal relations receive a conceptual analysis based upon his rational naturalism. It stands to reason that the law is positive law made by human beings and located within the physical reality in terms of social facts. Thus natural law theories must be rejected as false, if not meaningless, since they locate the law within the metaphysical or spiritual reality of ideals and values that cannot be conceived as alongside the physical reality. This critique also applies to Hans Kelsen’s theory of law that locates the positive law in the world of ought in terms of valid norms that must be kept apart from the natural world of is in terms of the effectiveness of legal norms. But Hägerström accepts Kelsen’s critique of the positivist theories of law that hold that legal rules are commands or imperatives passed by the will of the sovereign and addressed to his subjects. For Hägerström, it is impossible to identify any unitary will behind the positive laws and this implies that the will of the sovereign is a metaphysical idea that must be discarded as meaningless. The law cannot be conceptualized as a system of authoritative norms concerning the rights and duties of persons but only as a system of legal rules grounded in interests and feelings that is actually maintained by the legal authorities in order to maintain peace and common social goals. In this way, the positive law is located within the reality of social facts in terms of the various forces which operate within a state to maintain the law. This raises the question of legal knowledge, which Hägerström does not explicitly address but his rejection of metaphysics implies that there is no room for legal knowledge in terms of normative knowledge about right and duties but there can be knowledge about the maintenance of legal rules based upon the naturalistic approach.

Hägerström’s view of the law is followed by Lundstedt to arrive at the radical conclusion that there are no legal rules in terms of norms, commands or imperatives. This is a version of legal nihilism that is related to legal scepticism. Thus Lundstedt rejects traditional legal science as unscientific that must be replaced with Lundstedt’s legal science where he continues to use the term legal rules. This has caused some confusion but his use of the term should be seen in relation to his method of social welfare concerning the making and application of law, using the legal vocabulary to cause the appropriate behaviour as effect.

Olivecrona also follows Hägerström but presents a more elaborate account of legal rules in his Law as Fact where he in the second edition introduces a classification of legal theories into voluntarism and non-voluntarism. Natural law theories and positivist theories belong to voluntarism since both theories claim that law is the expression of the will of the supreme authority and they only differ with respect to locating the supreme authority in god or the state. This implies that the usual division between legal positivism and natural law cannot be maintained since it is false that the will lays down what is right and wrong in terms of commands. Thus a proper theory must be a non-voluntarist or realistic theory of law that is advanced by Olivecrona, claiming that legal rules must be conceptualized as independent imperatives to be distinguished from commands since the latter are personal relations whereas imperatives are impersonal relations between human beings. The law is expressed in the imperative mood in terms of ideas of human behaviour and used by the legal authorities not to communicate knowledge about these ideas but to influence the behaviour of human beings. In this way morality depends upon the positive law rather than the other way round, and he rejects the idea of the validity or binding force of positive law as an idealistic element that must be replaced with the realistic element of the efficacy of legal rules in the minds of people. The law consists of rules about the use of force by the legal authorities to cause the appropriate behaviour among human beings as the effect. In this way the law is a link in the chain of causes and effects and located as social facts within the physical reality. This constitutes the area for legal science offering information about the ideas expressed in legal rules and he rejects the view advanced by O. W. Holmes and American realists that the task of legal science is to predict how judges will decide cases, since it rather has the task to offer information about the proper patterns of behaviour.

In On Law and Justice, Ross accepts Olivecrona’s view that legal rules are independent imperatives but Ross prefers to use the term “directives” which he defines as utterances with no representative meaning but with the intent to exert influence. The implication is that legal rules are devoid of any cognitive meaning, and this is a version of legal nihilism. Ross’s concern is rather the meaning of juridical propositions put forward within legal science where he appeals to logical positivism and the principle of verification. In contrast to Olivecrona, Ross arrives at the view that juridical propositions to be scientific propositions are predictions about the behaviour of judges deciding cases. This has some similarity with American realism, and in contrast to Olivecrona, Ross also discusses judicial reasoning to arrive at the view that judicial reasoning is not a matter of argumentation but persuasion. This fits with his emotive theory of ethics.
5. Rights and Duties

Hägerström’s conceptual analysis is based upon his view that the meaning of a word depends upon a reference to observable facts in order to express a concept. Considering the words “right” and “duty” it is impossible to find any facts corresponding to the words and this implies that there are no concepts of right and duty but only the use of meaningless words. This is corroborated by his historical inquiry into Roman law leading to the view that the Roman ideas of right and duty do not express concepts but are only magical words related to the use of commands. Thus the ideas of right and duty are nothing but illusions to be accounted for by his psychological inquiry into the nature of these ideas, claiming that the idea of duty is based upon a feeling of compulsion associated with the idea of the action where the feeling is produced through the suggestive influence of the expression of a command. This corresponds to the analysis of the idea of right that refers to a feeling of power in relation to things or persons which is exalted above any natural power. Although right and duty are illusions the use of the words has a vital function to cause the appropriate behaviour as the effect in order to maintain peace among human beings.

Lundstedt follows Hägerström and abandons the concepts within legal science. This leads to a critique by Ross. To be sure, right and duty are illusions, but the words are not magical words but can be used within legal science as technical tools to represent legal relations between human beings and things. Olivecrona agrees that the concepts are used within legal science but they are not exclusive technical tools for the jurists but are used in everyday life and legislation to regulate human behaviour. This leads to his analysis of the ideas of right and duty in terms of their directive and informative function. He also presents an account of the use of the concept of right by Hugo Grotius and Samuel Pufendorf.
6. Criticism

The Scandinavians have had an important impact upon jurisprudential thinking in the Nordic countries, but their claim that the naturalistic approach is the only scientific approach has been criticized for neglecting the normative aspect of law as well as reducing legal knowledge to be empirical knowledge about social-psychological facts.


Bibliography

Scandinavian realists:

Ekelöf, Per Olof, Valda skrifter 1942-1990, Uppsala 1991

Geiger, Theodor, Debat med Uppsala om Moral og Ret, Lund 1946.

Geiger, Theodor, Vorstudien zu einer Soziologie des Rechts (1947), mit einer Einleitung von Paul Trappe, Neuwied 1964.

Hedenius, Ingemar, Om rätt och moral, Stockholm 1941.

Hägerström, Axel, Om moraliska föreställningars sanning (1911), in Axel Hägerström, Moralfilosofins Grundläggning, edt. Thomas Mautner, Uppsala 1987, pp. 27-50. Translated into English by Robert T. Sandin and published in Philosophy and Religion, London 1954, pp. 77-96.

Hägerström, Axel, Der römische Obligationsbegriff im Lichte der allgemeinen römischen Rechtsanschauung, Band 1, Uppsala 1927, Band 2, Uppsala 1941.

Hägerström, Axel, Selbstdarstellung in Die Philosophie der Gegenwart in Selbsdarstellungen, Hrsg. Raymund Schmidt, Band 7, Leipzig 1929, pp. 111-159. Translated into English by Robert T. Sandin and published in Philosophy and Religion, London 1964, pp. 33-74.

Hägerström, Axel, Inquiries into the Nature of Law and Morals, transl. C. D. Broad, edt. Karl Olivecrona, Uppsala 1953.

Lundstedt, Anders Vilhelm, Superstition or Rationality in Action for Peace, London 1925.

Lundstedt, Anders Vilhelm, Die Unwissenschaftlichkeit der Rechtswissenschaft, Band 1, Berlin 1932, Band 2, Berlin 1936.

Lundstedt, A. Vilhelm, Legal Thinking Revised, Stockholm 1956.

Olivecrona, Karl, Law as Fact, London 1939

Olivecrona, Karl, Om Lagen och Staten, Lund, übersetz E. Blauert als Gesetz und Staat, Copenhagen 1940.

Olivecrona, Karl, Realism and Idealism: Some Reflections on the Cardinal Point in Legal Philosophy, New York University Law Review, vol.26, 1951, pp. 120-131.

Olivecrona, Karl, Law as Fact, 2nd ed., London 1971.

Ross, Alf, Kritik der sogenannten praktischen Erkenntnis. Zugleich Prolegomena zu einer Kritik der Rechtswissenschaft. Kopenhagen und Leipzig 1933.

Ross, Alf, Virkelighed og Gyldighed i Retslæren. En Kritik af den teoretiske Retsvidenskabs Grundbegreber, København 1934.

Ross, Alf, Towards a Realistic Jurisprudence. A Criticism of the Dualism in Law, Copenhagen 1946.

Ross, Alf, Tû-Tû, Festskrift til Henry Ussing. København 1951, pp. 468-484, translated into English as Tû- Tû, Harvard Law Review, vol. 70, 1956-57, pp. 812-825.

Ross, Alf, Om Ret og Retfærdighed. En indførelse i den analytiske retsfilosofi. København 1953, translated into English by Margaret Dutton as On Law and Justice, London 1958.

Ross, Alf, Validity and the Conflict between Legal Positivism and Natural Law, Revista Juridica de Buenos Aires 1961, reprinted in Normativity and Norms, edt. Stanley L. Paulson and Bonnie Litschewsski Paulson, Oxford 1998, pp. 147-163.

Ross, Alf, Directives and Norms, transl. Brian Loar, London 1968.

Strömberg, Tore, Norms of Competence in Scandinavian Jurisprudence, Scandinavian Studies in Law, vol.28, 1984, pp.151-162.

Strömberg, Tore, Rättsfilosofins Historia i Huvuddrag, Lund 1989.


Accounts and Critique of Scandinavian Realism:

Bjarup, Jes, Skandinavischer Realismus, Freiburg 1978.

Bjarup, Jes, The Philosophy of Scandinavian Legal Realism, Ratio Juris, vol. 18, 2005 pp. 1-15.

Bjarup, Jes, Scepticism and Scandinavian Legal Realism, in Properties of Law. Essays in Honour of Jim Harris, edt. Timothy Endicott, Joshua Getzler, Edwin Peel, Oxford 200, pp. 52-68.

Castberg, Frede, Problems of Legal Philosophy, Oslo 1957.

Friedmann, W, Legal Theory, 5th ed., London 1967, pp. 304-311.

Harris, J. W., Olivecrona on Law and Language – the Search for Legal Culture, Tidsskrift for Rettsvitenskap, vol. 94, 1981 pp. 625-646.

Hart, H. L. A, Scandinavian Realism, Cambridge Law Journal 1959, reprinted in Hart, Essays in Jurisprudence and Philosophy, Oxford 1983, Ch. 6, pp. 161-169.

Lewis, John U. Karl Olivecrona: “Factual Realism” and Reasons for Obeying a Law, University of British Columbia Law Review, vol. 5, 1970, pp. 281-304.

Lloyd’s Introduction to Jurisprudence, 7th ed. edt. M. D. A. Freeman, London 2001, Ch. 10, pp. 855-901.

MacCormack, Geoffrey, Law as Fact, Archiv für Rechts- und Sozialphilosophie, vol. 60, 1974, pp. 393-412.

Merrills, J. G., Law, Morals and the Psychological Nexus, Toronto Law Journal, vol. 19, 1969, pp. 46-58.

Soziologische Jurisprudenz und realistische Theorien des Rechts, Rechtstheorie Beiheft 9, Hrsg. Eugene Kamenka, Robert S. Summers, William L. Twining, Berlin 1986. Papers by Bjarup, Jes, Legal Realism or Kelsen versus Hägerström, pp. 243-257 Pattaro, Enrico, Legal Realism or Hägerström along with Hart, Some Comments on Bjarup, pp. 259-268. Castignone, Silvana, Punishmnet and Responsibility in Scandinavian Legal Realism, pp. 269-274, Faralli, Carla, Anthropology and History in the Study of Law, pp. 275-288. Jørgensen, Stig, Scandinavian Legal Philosophy, pp. 289-304. Sundberg, Jacob W. F., Scandinavian Unrealism, pp. 305-321. Almé, Annika Lagerqvist, The “Uppsala School” in Sweden, pp. 323-333.

Tammelo, Ilmar, Contemporary Developments of the Imperative Theory of Law: A Survey and Appraisal, Archiv für Rechts- und Sozialphilosophie, vol. 49, 1963, pp. 255-277.
Related entries

Binding force of law, Cognitivism/non-cognitivism, Efficiency, Hägerström, Axel, Legal positivism, Lundstedt, Anders Vilhelm, Natural law, Olivecrona, Karl, Ross, Alf