Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non-cognitivists, and who maintained that conceptual analysis is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti-metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non-cognitivism on the part of the Scandinavians and its implications for their view of the (...) nature of law. I argue that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, that the objection to non-naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values and the world of time and space—is convincing, and that Kelsen's introduction of a so-called modally indifferent substrate does nothing to undermine this objection. In addition, I argue that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms. (shrink)

In this article, I discuss Alf Ross's claim that the concept of a legal right is best understood as a technical tool of presentation, which ties together a disjunction of operative facts and a conjunction of legal consequences, and that rights statements render the content of a number of legal norms in a convenient manner. I argue that while Ross's analysis is appealing, it is problematic in at least three respects. I also argue, however, that despite these difficulties Ross's analysis (...) deserves our continued attention, because the fundamental idea—that the concept of a legal right must be understood functionally—is sound. (shrink)

In 1910–11 Axel Hägerström introduced an emotive theory of ethics asserting moral propositions and valuations in general to be neither true nor false. However, it is less well known that he modified his theory in the following year, now making a distinction between what he called primary and secondary valuations. From 1912 onwards, he restricted his emotive theory to primary valuations only, and applied an error theory to secondary ones. According to Hägerström, secondary valuations state that objects have special value (...) properties, that we believe we become acquainted with in primary valuations. But, in fact, we do not have any such acquaintance. There are no, and cannot be any such, properties in objects. What we take to be a property is a projection of a feeling. Therefore, all secondary valuations are false. In 1917 he developed his theory further and distinguished between different types of secondary valuations with different structures. Yet he argued that they all are false. Hägerström's discussion is interesting because, among other reasons, it is historically a very early version of error theory in ethics. In a way it can also be said to be a precursor to later versions, e.g., John Mackie's (1946 and 1977). There are obvious resemblances between their accounts. Mackie's discussion is, of course, independent of Hägerström's. (shrink)

In this paper I set out to read Hägerström through his own eyes, adhering to the terminology he uses in his own original work and attempting to make sense of the variance and uniformity alike that one finds in his linguistic usage. The translations we have of Hägerström's works are quite liberal, using the same word in English where the original uses different ones, and, vice versa, using different words in English where the original uses a single one in different (...) contexts. These misleading translations of Hägerström have contributed in some measure to Hägerström's reputation for obscurity. Further, and most importantly, I will take seriously what Hägerström says about his own thought, namely, that it is dependent on that of Kant and independent of the currents of thought contemporary with Hägerström. In Section 1, I will briefly take up the problem of consciousness that Hägerström proceeds from, and will recall something that Bertrand Russell once said, in 1928, in regard to the revolt staged in the early 20th century in Europe against German idealism. In Sections 2 and 4.1, I will instead take up Kant for the purpose of clarifying Hägerström's theory of judgment as treated in Section 3. In Section 4.2, I will illustrate the difference between the notions of nothing, R-reality, and W-reality in Hägerström. In Sections 5 and 6, I will examine the analysis that Hägerström offers of the principle of contradiction, and will summarize the three types of judgment he singled out, including the type he called impossible judgment. In Section 7, I will consider Hägerström views as grounding, in a transcendental way, the presupposition of the primacy of the external spatio-temporal world, a world independent of our representations: I will consider in particular the W-real complexes that are merely represented, as well as the spatio-temporal world as the only W-real complex that is not merely represented. Finally, in Section 8, I will briefly consider some of those who have commented and translated Hägerström, this to conclude that R-reality and W-reality are coextensive but not synonymous. (shrink)

This paper discusses the place of philosophical naturalism in the philosophy of law, with special reference to Scandinavian Realism. Hägerström originated a non-cognitivist analysis of certain fundamental legal concepts, but he also proposed an error theory. The two approaches are incompatible, but were not always clearly distinguished. Among his followers, Olivecrona and Ross gradually abandoned the latter, at least from the late 1940s. Many accounts of their views are unclear, because the presence of these two kinds of analysis, their incompatibility, (...) and the gradual abandonment of one, has often been overlooked. A corollary of the discussion is that there are some important corrigenda in the entry “Naturalism in legal philosophy” in the Stanford Encyclopedia of Philosophy. (shrink)

MacCormick and Weinberger's normative institutionalism, or neo‐institutionalist theory, is propounded as “a socially realistic development of normativism.” This theory blends normativism and realism and represents the coherent outcome of two components of each author's thought: normativism from the standpoint of legal theory; neo‐empiricism from the standpoint of philosophy generally. Scandinavian legal realism, or normative realism, is the only school of jurisprudence that can be understood as a direct offspring of one of the philosophical currents (i.e., the Uppsala school) belonging to (...) contemporary neo‐empiricism. This is why it inevitably becomes a touchstone for those legal theories – like MacCormick and Weinberger's neo‐institutionalist theory–which are not direct offshoots, but owe much to the principles and methods of neo‐empiricism. (shrink)