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Realism about the Nature of Law
Stockholm University, Faculty of Law, Department of Law.
2017 (English)In: Ratio Juris, ISSN 0952-1917, E-ISSN 1467-9337, Vol. 30, no 1, p. 75-104Article in journal (Refereed) Published
Abstract [en]

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 (in a fairly broad sense) 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 (i) 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 (ii) 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, (iii) 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 (the ‘world of the ought’) and the world of time and space—is convincing, and (iv) that Kelsen's introduction of a so‐called modally indifferent substrate does nothing to undermine this objection. In addition, I argue (v) 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 (vi) 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.

Place, publisher, year, edition, pages
2017. Vol. 30, no 1, p. 75-104
Keywords [en]
Scandinavian realism, Kelsen, normativity
National Category
Philosophy
Research subject
Philosophy; Jurisprudence
Identifiers
URN: urn:nbn:se:su:diva-160301DOI: 10.1111/raju.12073OAI: oai:DiVA.org:su-160301DiVA, id: diva2:1248958
Available from: 2018-09-17 Created: 2018-09-17 Last updated: 2018-09-28Bibliographically approved

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