| Special Workshop Title: | Scandinavian Legal Realism in Theory and Practice |
| Author: |
Alexander Molter, University of Kiel |
| Paper Title: | The Concept of Law and The Use of Legal Language |
| Abstract: |
My paper will deal with the relation of the concepts
of valid law and legal politics in Ross’ theory. According to Ross the
concept of valid law has to be reshaped in order to eliminate
unscientific magical elements form this concept. Therefore Ross uses the
concept of valid law in a much narrower sense as lawyers normally use
it. On the other side he enlarges the scope of the concept of legal
politics and broadens its normally narrow area of use. Whereas Ross
shares his approach to the concept of law with Scandinavian Realism as a
whole—the demand to purify scientific concepts from magical elements
was set forth by Axel Hägerström, the founder of Scandinavian
Realism—is his theory of legal politics rather peculiar.
This approach has consequences for the use of legal language, because a speaker, i.e. a lawyer, uttering sentences about the law has to make it quite clear, whether his sentences are meant as assertions about valid law, i.e. the law as it is, or if they are meant as demands on how the law ought to be. A sentence of the first kind refers to the concept of valid law, a sentence of the second kind to the concept of legal politics. In this way Ross wants to cure the fault of traditional legal science, which is accused by him of camouflaging political statements as assertions about valid law. This camouflage is made possible by the magical elements in the traditional concept of valid law. Ross narrows this concept by eliminating this elements form it. According to Ross only those propositions can rightful claim to be part of legal dogmatic, which assert with certainty on how the courts will decide on a certain individual case. Propositions about valid law which lack this certainty, i.e. legal opinions not proved in court, even judgments by courts which are contradicted by the judgments of other courts belong to the realm of legal politics. In my paper I will discuss these aspects of Ross’ theory and present some examples. |
This page was last updated on: 2003-05-20.