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)

If the bindingness of morality was to rest on something as ‘subjective’ as the non-cognitivist says it does, the grouse goes, and morality itself would come down crashing. Nothing less than an ‘objective’ source of normativity, it is supposed, could hold morality in orbit. Some of these worries automatically morph into worries about the projectivist model of normativity of law as well: one which understands the authority or normativity of law in terms of subjective attitudes taken towards the law. As (...) well as the stock worries about non-cognitivism, there are some additional ones that the projectivist model brings in its wake that it cannot account for the ‘uniform’ bindingness of law and that a subjective source of normativity of law based on mental states is unintelligible. This essay makes the case for acquitting the projectivist model of normativity of law from the above charges. But the route to that necessarily leads through first acquitt... (shrink)

After proposing an alternative definition of what “law” (jurisprudential concept) is, this article demonstrates the impossibility of identifying “the law” (what law-makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is a more or less abstract range of options. Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law-makers. We need to remove the mystery that surrounds the law so as to provide for (...) greater transparency. This transparency can be gained by requiring law-makers to declare their inescapable biases where they influence their lawmaking. (shrink)

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)

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)