Special Workshop Abstract

Jes Bjarup

This paper presents an overview of the jurisprudential movement known as Scandinavian Legal Realism grounded in the philosophy of the Swedish philosopher Axel Hägerström (1868-1939) and the Danish philosopher and jurist Alf Ross (1899-1979). Their philosophical approach is advanced as a conceptual analysis having the aim to destroy the distorting influence of metaphysics in relation to law and legal thinking in order to provide the scientific foundation for the understanding of the importance of law within the state. It is submitted that Hägerström’s conceptual analysis is grounded in his metaphysical theory of reality that holds that there is only the world in time and space consisting of causal regularities between things and events devoid of any values that is related to his epistemological theory that what there is can be known by reason and experience. This is Hägerström’s rational naturalism that leads him to advance an emotive theory of ethics. It also leads him to hold that the positive law cannot be conceptualized as normative propositions of right and duties (natural law and natural right theories) or as declarations of the will of the sovereign (legal positivism). The law exists only as a system of behavioural regularities among human beings within the state. Hägerström’s philosophy provides the epistemological and metaphysical foundation for the so-called realist approach to law and legal science advanced by the Swedish jurists A. V. Lundstedt (1882-1955) and Karl Olivecrona (1887-1980) to be contrasted with the approach by Alf Ross who relies upon the philosophy of logical positivism in relation to the conceptual analysis of legal concepts and the scientific study of the law.