This article argues that juristic theories must be understood in relation to the historical conditions in which they have emerged. This is not to reduce theories to their context but to gain essential insight into their aims, meaning, and scope with the aid of such “external” reference points. Here I use the ideas of the Swedish legal realist Vilhelm Lundstedt to illustrate these claims, choosing his juristic theory for this purpose specifically because it has been so widely seen as deeply (...) puzzling and “extreme.” The article argues that his central ideas are readily intelligible in historical context. But such a contextual examination of juristic ideas also makes it possible to assess what in them can properly travel beyond immediate context: in other words, what insights about the nature of the jurist's task can legitimately be taken from them for more universal application. Lundstedt's work, despite having been largely ignored or excluded from international juristic debate, has something to offer here if seen through a contextualising lens that sets the possibilities for its broader application in sharp relief. (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)

I argue in this article (i) that Karl Olivecrona's legal philosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legal philosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by Olivecrona between the truth and (...) the correctness of legal statements is problematic but not needed in Olivecrona's legal philosophy. (shrink)

I. Playing a Game II. The Precondition to Mete out a Legal Sanction III. A Non-cognitively Homogeneous Activity IV. The Reproduction of the Law as a System 1. The Claim for Normative Closedness 2. The Openness of the Communication about Facts Rule of law proclaims the ethos of legal distinctiveness through institutionalizing normative closure, while the rule of facts proclaims a legal functioning embedded in facts as rooted in common sense evidence, backed by practical openness in its functioning. All in (...) all, while rule of law argues for the law’s self-differentiation, the rule of facts ascertains why legal enterprise is (notwithstanding the same) what the heterogeneity of everyday practice and experience suggest it is. In the final analysis, I guess that these two aspects are able only in supplementation of one another to serve the common interest in making the law operate in a socially meaningful way. That is, they are to guarantee distinctively legal operation actually taking place, on the one hand, at a time when and under the conditions in which all its normative preconditions are fully met, on the other. (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)