Realism about the Nature of Law

Ratio Juris 29 (4) (2016)

Abstract
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.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
DOI 10.1111/raju.12073
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

Our Archive


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 38,878
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

The Concept of Law.H. L. A. Hart - 1961 - Oxford University Press.
Moral Thinking: Its Levels, Method, and Point.R. M. Hare (ed.) - 1981 - Oxford: Oxford University Press.

View all 40 references / Add more references

Citations of this work BETA

Add more citations

Similar books and articles

Legal Realisms: On Law and Politics.Mauro Zamboni - 2006 - Res Publica 12 (3):295-317.
Legal Realism & Judicial Decision-Making.Vitalius Tumonis - 2012 - Jurisprudencija: Mokslo darbu žurnalas 19 (4):1361-1382.
Trouble for Legal Positivism.Danny Priel - 2006 - Legal Theory 12 (3):225-263.
Why The Axioms and Theorems of Arithmetic Are Not Legal Norms.Matthew H. Kramer - 2007 - Oxford Journal of Legal Studies 27 (3):555-562.
Alf Ross on the Concept of a Legal Right.Torben Spaak - 2014 - Ratio Juris 27 (4):461-476.
Legal Validity Qua Specific Mode of Existence.P. W. - 1997 - Law and Philosophy 16 (5):479-505.

Analytics

Added to PP index
2015-04-17

Total views
18 ( #395,454 of 2,319,058 )

Recent downloads (6 months)
8 ( #141,696 of 2,319,058 )

How can I increase my downloads?

Monthly downloads

My notes

Sign in to use this feature