Scandinavian Realism is a Jurisprudential movement found by Axel Hägerström who held the chair practical philosophy at the University of Uppsala and the Danish philosopher and jurist Alf Ross who held chairs in law at the University of Copenhagen. They shared the view that is vital to destroy the distorting influences of metaphysics upon scientific thinking generally and legal thinking especially so as to pave the way for the scientific understanding of the importance of law and legal science for the life time of citizenry within a state. The philosophy of Scandinavian Legal Realism can be addressed from the perspective of what is dead and what is alive in their views of concerning the approach to law. It is easy to relegate the Scandinavian realists to the past but this is to ignore that their ideas are still a challenge to the understanding of various issues concerning law and legal knowledge.
One issue is the importance of the law in society. As Hägerström puts it, “the law is undeniably a condition of culture itself. Without it, as the Sophist Protagoras already saw, we should never have been able to win the lordship over other species”. It is this that matters to reach a correct understanding of the law which raises another issue concerning the philosophical foundation for the understanding of law and legal knowledge that Hägerström addresses in his philosophy.
Hägerström’s Philosophy of Reality and Knowledge
Hägerström is the founder if Scandinavian Realism and known for his rejection of metaphysics. “we must destroy metaphysic if we ever wish to pierce through the mist of words which has arisen out of feelings and associations and to proceed ‘from sounds to things’. Hägerström’s philosophy of reality and knowledge grounded in a reason that holds that there is only one world, the world in time and space that is there to be known by means of experience. Thus Hägerström rejects metaphysics in the sense of the existence of a metaphysical or supernatural world beyond the existence of the physical or natural world in time and place. However, if we overlook it often implies that Hägerström is committed to a metaphysical view of reality that maintains “the logical character of sensible reality”. His metaphysical view implies that reality is intelligible not in terms of an idealistic metaphysics as a spiritual reality, but in terms of a realistic metaphysics as a material reality comprising things and their properties and causal relations between them that exist apart from the human mind. He calls his philosophical approach ‘rational naturalism’ in opposition to ‘rational idealism’ advanced by the Swedish idealist philosopher C. J Boström, leading Hägerström as the naturalistic approach as the only scientific or realistic approach to the study of the world. Thus he rejects idealism that ideal of perfection are found in nature, but he is firmly committed to the idealism that holds that ideas or concepts exist independently of the human mind as embedded in nature in the various kinds of things that confront human beings. Thus the logical character of the sensible reality implies that everything in the world is what it is since the causal relations between things and events are necessary relations that are manifested in natural laws.
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Hägerström’s Legal Philosophy
Hägerström’s concern the conceptual analysis of the law and therefore that related theories of law advanced by law and natural right theories on the one hand, and legal positivist theories on the opposite, that are dismissed by Hägerström as conceptually confused and condemned as morally pernicious.Hägerström grants that the law is introduced by the will of human beings in general and the legislator in particular but he denies that the will is embodied in the content of the law to account for the conceptual meaning of the legal vocabulary used in positive laws. Thus Hägerström face the Euthyphro question on whether what’s right is willed by the legislator because it’s right, that’s the intellectualist position, or whether what’s right is so because it’s willed by the legislator, that’s the voluntarist position. The intellectual position holds that the conceptual meaning of what’s right and wrong is found by reason and located in moral reality, either embodied within the nature of things or in persons and their actions, that is the inspiration for the making of the positive law in terms of normative propositions that are willed by the legislator.
Hägerström endorses the positivist rejection of law and natural right theories since there are not any natural laws or natural rights, on the other hand he sets bent destroy legal positivism since it doesn’t add up to carry that the conceptual meaning of the legal vocabulary is decided by the desire of the legislator. This is often the voluntarist position endorsed by John Austin and Hans Kelsen that holds that what’s right or wrong is manifested within the positive laws that are simply because the legislator wills them. This accounts for the existence of the legal reality of positive rights and correlative duties which will be maintained by the utilization of coercive sanctions, and therefore the existence of coercive sanctions determines the conceptual meaning of legal concepts. Hägerström rejects Kelsen’s theory as philosophically confused since it’s based upon the existence of a legal reality of “ought” in terms of authoritative norms as a supernatural reality alongside the natural reality of “is” in terms of causal relations between social facts. Besides Kelsen is committed to the absurd view that the law creates its own existence in terms of legal norms that “have an ingenious power as regards that which is expressed in them”. This is often surely a belief in magic since Kelsen holds that it’s possible for citizenry to make a legal reality of rights and duties by using concepts in legal norms.
The results of Hägerström’s rejection of legal positivism is that the law lacks any conceptual content and this suggests that legal vocabulary isn’t a matter of using concepts as reasons for human conduct but only a matter of using palaver or noises to cause the acceptable behaviour.Hägerström is committed to what are often called legal nihilism that holds that there’s no legal reality in terms of normative facts concerning legal rights and legal duties. Hägerström substantiates his legal nihilism by his conceptual analysis into the meaning of law and legal concepts. This analysis isn’t a logical analysis of the conceptual relations between legal concepts but an historical inquiry into the origin of legal concepts in their historical circumstances in AncientGreek and Roman law. The received view of Roman law is that it’s an expression of reason in reference to the utilization of legal concepts that Hägerström claims is fake. This is often since legal concepts like right and duty don’t correspond to something tangible actually in time and space which will be seen or touched. It follows that there are not any legal concepts but only the utilization words to precise various feelings and interests among citizenry with reference to what the right behaviour is, evoking the acceptable response which will be enforced, if necessary, by means of coercive sanctions. This is often the magical use of words that leads Hägerström to say that Roman law is to be seen as an expression of non- sense in reference to the utilization of words that are barren of any conceptual meaning but are wont to maintain various social positions among citizenry . Things are not any different with reference to modern law, but legal vocabulary is vital nonsense since it’s employed by the acceptable authorities to take care of and enforce regular patterns of behaviour to maintain peace and security among the members of the state.
Hägerström’s Moral Philosophy
Hägerström’s rational naturalism also informs his inquiries into the character of morality. What’s important is Hägerström’s metaphysical view of the logical character of the sensible reality since this suggests that reality is barren of any values. There is often no moral reality in terms of ethical or normative concepts embedded within things or in the citizenry and their actions. Hägerström rejects naturalism in ethics since moral concepts can’t be analysed and defined in non-moral concepts in terms of empirical facts of sensations of pain and pleasure. Hägerström subscribes to Kant’s view that “when we have the course of nature alone insight ‘ought’ has no meaning. It’s even as absurd to ask what need to happen within the wildlife on to ask what properties a circle need to have. They justify all that we in asking is: What happens in nature? What are the properties of the circle?”. However, Kant holds that the meaning of “the ought” or morality are often established by regard to the desire or practical reason to account because the citizenry is persons having the capacity to make rules of conduct grounded in moral obligations and natural rights to control their actions as manifested within the making of positive laws to control the conduct of citizenry as free and responsible agents. Hägerström rejects Kant’s appeal to practical reason because the foundation for the creation of positive laws since Hägerström confines reason to theoretical reason concerned with the conceptual analysis of concepts used within the sciences to explain and explain what there’s. Since physical nature is barren of any values, values can only be within the minds of individuals, not in terms of ethical beliefs and therefore the use of ethical concepts to precise moral judgements but solely in terms of ethical feelings as expressed in moral utterances in terms of requests and commands.
The Scandinavians stress the importance of philosophy regarding jurisprudence for the right understanding of the law and legal knowledge. It’s right to ask metaphysical and epistemological question albeit they supply the incorrect answers by holding the metaphysical belief that whatever doesn’t exist within the sensible reality must exist in some supersensible reality and therefore the related epistemological belief that confines knowledge to things which we will see and touch, and feel. This is often the inspiration for his or her naturalistic approach but the difficulty is that this is tantamount to defining the crucial elements of the normativity of law and morality out of existence and to excluding the existence of ethical and legal knowledge in terms of what there’s reason to believe, to do and feel.
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