Scandinavian Realism

Abstract

English and Scandinavian legal theory have long shared many points of view. Among these are the belief that law is something man-made and made for men; hostility or indifference to doctrines of natural law at least in the scholastic form; and a general disbelief in the capacity of philosophical systems to throw light either on what law is or ought to be. Yet notwithstanding these similarities the principal Scandinavian tradition in legal theory has a different tone from its English counterpart. Though professedly sceptical in aim and empirical in method, it is much more like a kind of philosophy. The work of the founder of this tradition, Axel Hägerstrom, had for its motto Censeo metaphysicam esse delendam and is a sustained effort to show that notions commonly accepted as essential parts of the structure of law such as rights, duties, transfers of rights and validity, are in part composed of superstitious beliefs, “myths,” “fictions,” “magic” or rank confusion. This tradition, continued in the work of his disciples Lundstedt, Olivecrona and Alf Ross, has made contact with both American “rule-scepticism” and contemporary linguistic philosophy. Its latest most sophisticated product is Ross's recently published book On Law and Justice.1This is in many ways an interesting book, and at points a brilliant one, though by no means free from the fiery dogmatism of Scandinavian “realist” jurisprudence. Ross is less tortuous and obscure than Hägerstrom, less naïve and professorial than Lundstedt; and richer in illuminating examples and concrete detail, if less urbane, than Oliveerona.