LEGAL PHILOSOPHY

Topic:
Scandinavian Legal Realism







Submitted by:
Benedicto, Ana Victoria Therese (1-A)
Cabrera, Errol (1-A)



Submitted to:
Atty. Rochelle Galano-Dakanay





I. Brief History

Scandinavia refers to a historical and cultural-linguistic region in Northern
Europe characterized by a common ethno-cultural Germanic heritage and
related languages, which includes the five kingdoms of Denmark, Norway,
and Sweden, Iceland, and Finland.
1


The term Scandinavia is usually used as a cultural term and countries
within this are considered as Nordic Countries.
2


II. Scandinavian Law

The Scandinavian Law is also known as Nordic law. However, the term
used internationally as a more accepted term is the former. This entity
belongs primarily to the family of the legal systems of Continental Europe,
showing far more similarities to these systems than to those belonging to the
common law family.

Other experts are of the opinion that it should be regarded as a separate
legal family, pointing at three key factors: the limited importance of legal
formalities, the lack of modern codifications and the absence of an actual
reception of Roman law.
3


The sources of the Scandinavian Laws are as follows, in order of its
hierarchy: Statues, Case Law (jurisprudence), Preparatory Work on Proposed
Laws, and Doctrines and Customs.
4
Furthermore, even books with
commentaries regarding law subject are also used as basis for their laws.


1
Mrten Schultz. Scandinavian Legal Family. (2003). http://www.diva-
portal.org/smash/get/diva2:282577/FULLTEXT01.pdf
2
Ibid.
3
Ole Hasselbalch. History of Nordic Labour Law. (2009) http://www.scandinavianlaw.se/pdf/43-1.pdf
4
Supra.
III. Some Features of Scandinavian Law
The Scandinavian Law itself is unique as compared to the other legal
system known to mankind. It is very proper to observe that the legislation is
incomplete in different ways and that there is a breath of variation within
Scandinavia when it comes to the response to particular problems.

It recognizes uncodified general principles of contract law (Law on
Obligations). Also, in their Acts on Torts, the legal instrument show non-
contractual liability for damage which is the insurance based solutions and the
great emphasis on safeguarding basic risks, doing justice in the particular
case and protection of the weak and vulnerable in society.
5


At the outset, it can also be perceived that there are no general Civil
Codes in the Nordic Countries. This situation is unlikely since usually,
countries have their own Civil Code or any codified set of laws for which the
country is to observe and abide by.

In the Nordic countries there are a number of acts (statutes) on different
aspects of private law. Some of these acts cover important, basic parts of the
private law but they do not cover all parts of the field and are not intended to
be complete. Also, legal problems which are not covered by a specific
statutory provision are often solved by applying by analogy principles
expressed in the statutes or by supplementing a case law.
6


Technically, for one to be able to compare the Scandinavian Law to other
legal foundations of other countries, it is important to consider the degree of
congruity between the fundamental premises of their legal theory, consistency
in the formation of their basic legal concepts, affinity in their methodology of

5
Supra.
6
Torben Spaak. American and Scandinavian Legal Realism. (2013)
http://www.law.umn.edu/events/uppsala2008/topic1.html
codification, the doctrine of precedent, the working of the courts, and the
choice of the sources of law.

IV. Scandinavian Legal Realism
Legal Realism (also known as American Legal Realism) should be
distinguished from its Scandinavian counterpart which had little concern for
studies of judicial decision making and legal reasoning. Scandinavian realists
like Alf Ross, Axel Hagerstrom, and Karl Olivecrona thought that law should
be analyzed through the prism of social empirical sciences.
7
Scandinavian
realists wanted to explain scientifically how the law changes human behavior.
American Realists, while also devoted to empirical research, were mostly
preoccupied with the studies of judging, legal reasoning, and judge-made
law.
8


According to Scandinavian Legal Realism, the law is a social phenomenon
ultimately relying only on the sanction of man himself. The movement is
characterized by a sustained attack on metaphysical ideas as manifested in
the opposition between realism and idealism. It aims to the most general
investigation possible into the nature of reality and seeks to uncover what is
ultimately real, frequently offering answers in sharp contrast to our everyday
experience of the world.
9


To give a background for their philosophical view, they used metaphysics
as their basis which is a traditional branch of philosophy concerned with
explaining the fundamental nature of being and the world that encompasses
it, although the term is not easily defined. In addition, realism holds that there
is but one world, the world of reality that is related to empirical cognition

7
Ibid.
8
Infra.
9
Johan Strang. Two Generations of Scandinavian Legal Realists. (2009)
http://www.retfaerd.org/gamle_pdf/2009/1/Retfaerd_124_2009_5.pdf
whereas idealism holds that there is also another world of values related to
normative cognition.

Furthermore, 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.

V. Philosophers

Scandinavian Legal Realism was founded by the Swedish philosopher
Axel Hgerstrm and the Danish philosopher and jurist Alf Ross in order to
destroy the distorting influence of metaphysics upon legal thinking and to
provide the secure philosophical foundation for scientific knowledge of the
law.

Hgerstrm's philosophical theory and argue that he is committed to the
metaphysical view that the world in time and space consists of causal
regularities between things and events devoid of any values that is related to
his epistemological view that what there is can be known by experience.
Hgerstrm's philosophy advances a naturalistic approach that conceives the
positive law as a system of rules in terms of behavioural regularities among
human beings and legal knowledge as an empirical inquiry into the causal
relations between legal rules and human behaviour.
10


This approach is followed by his pupils, the Swedish lawyers A. V.
Lundstedt and Karl Olivecrona, whereas Ross appeals to logical positivism.
The naturalistic approach should be taken seriously since it leaves no room
for the normativity of the law and for legal knowledge in terms of reasons for
belief and action.

10
Ibid.
Axel Hgerstrm

He believes that human being must use their senses to arrive at
knowledge of reality. According to him, rights and duties are refuted as
metaphysical pseudo-concepts representing nothing existent in time and
space, i.e. right to property.

His view of the law is that the law is a necessary condition of organized
social life within a state. It 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.

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.
11


Anders Vilhelm Lundstedt (1
st
Gen)

According to him, there are no legal rules in terms of norms, commands or
imperatives. Contrary to utilitarianism, Lundstedt acknowledged the
Hgerstrmian thesis that there are no objectively valid moral principles.
Rather, public welfare should be understood in a descriptive sense,
representing the actual valuations of people in society.



11
Supra.

Karl Olivecrona (1
st
Gen)

As for Olivecronas point of view, 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.

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
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.

Alf Ross (2
nd
Gen)

Ross accepts Olivecronas 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. Thus, legal rules are devoid of any cognitive meaning, and this is a
version of legal nihilism.
12


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

12
Ibid.
arrive at the view that judicial reasoning is not a matter of argumentation but
persuasion.

Ingemar Hedenius (2
nd
Gen)

Ingemar Hedenius said that the meaning of a concept cannot be anything
else than the facts that are covered by it. It is clear that he was abandoning
the act-psychological theory of meaning, used by Hgerstrm, in favor of
verification theory of meaning which is used in logical empiricism

VI. Comparison
English and Scandinavian legal theories have long shared many points of
view. Among these are the beliefs 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.
13


The founder of Scandinavian Legal Realism, Axel Hgerstrom, showed
that concepts such as rights, duties, transfers of rights and validity, are in part
composed of superstitious beliefs. This idea, continued in the work of his
disciples Lundstedt, Olivecrona and Alf Ross, is similar with American rule-
scepticism and contemporary linguistic philosophy.

The American legal realists tended to explain legal propositions in terms of
predictions of what judges and other legal officials would do. The
Scandinavian legal realists tended to explain law in terms of the states of
minds of citizens and officials.
14


13
H. L. A. Hart. Scandinavian Realism. The Cambridge Law Journal. (2009).
http://journals.cambridge.org/action/displayAbstract;jsessionid=A0C04476A108FA94B9B8346889EF66A9.journals
?fromPage=online&aid=2850156
14
Ibid.
Americans and the Scandinavians thought of themselves as giving in
some sense a realistic picture of law and legal phenomena. However, they
differed in their choice of primary study-object but also to some extent in
philosophical ambition and ability.

The Americans focused primarily on the study of adjudication, the
Scandinavians were mainly interested in the analysis of fundamental legal
concepts, such as the concept of law, the concept of a legal rule, or the
concept of legal right; whereas the Americans were lawyers rather than
philosophers, the Scandinavians Ross and Olivecrona were fairly
accomplished philosophers of law.
15


The choice of study object would indicate that Scandinavians operated on
the same level as natural law theorists and positivists. Scandinavians were
legal positivists themselves.

15
Supra.