Special Workshop Abstract

Åke Frändberg

In the 2nd ed. of Law as fact (1971), Karl Olivecrona (O) presents his definite theory of law. In my paper I study his theories about the nature of legal rules, rights and judgments, and the relations between these phenomena, as presented in this work.

Legal rules are, according to O, ‘independent imperatives’, i.e., imperatives without ‘an imperator’. Such an imperative is structured in a certain manner. It consists of an ideatum (an idea about a certain action, the agendum, performed under certain circumstances, the requisitum) and an imperantum (expressing that the agendum shall be observed).

A crucial problem for O is how the thought that legal rules are imperatives can be reconciled with the observation that certain legal rules concern ‘the acquisition, import, transference and loss of rights’. O’s solution is that, beside the rules of conduct, there are another kind of rules, ‘performatory imperatives’, concerning the creation and expiry of rights.

However, when dealing with these performatory imperatives, O treats them, not as general legal rules but as particular (individual) utterances of the type ‘This woman shall be my lawful wedded wife!’ made in a marriage ceremony. Two questions then arise: (i) How shall we describe the relation between general legal rules and such particular utterances?, and (ii) How shall we describe the relation between a particular utterance and its ‘corresponding’ right (legal position)?

As for judgments, O rejects for several reasons the thought that a judgment in a civil case is a declaration about an already existing right. What the court actually does is to create a new legal position (a right or duty).