Abstract:The jurisprudential movement known as Scandinavian Legal Realism was founded by the Swedish philosopher Axel Hägerström and the Danish philosopher and jurist Alf Ross in order to destroy the distorting influence of metaphysics upon legal thinking and to provide the secure philosophical foundation for scientific knowledge of the law. I shall present Hägerström's philosophical theory and argue that he is committed to the metaphysical view that the world in time and space consists of causal regularities between t… Show more
“…Summarising the views held by the Scandinavian legal realists, Bjarup argues that:They shared the view that it is vital to destroy the distorting influences of metaphysics upon scientific thinking in general and legal thinking in particular in order to pave the way for the scientific understanding of the importance of law and legal science for the life of human beings within a state. (Bjarup , 1)The observation that courts merely express legal rules and part of the context associated with those rules, and the consequences stemming from such a realisation, lend support to this conclusion, and similar conclusions reached by both Scandinavian legal realists, such as Hägerström, Olivecrona, Ross and Lundstedt, and American legal realists, such as Holmes, Frank and Llewellyn…”
Section: So What Do Lawmakers Make?mentioning
confidence: 84%
“…They shared the view that it is vital to destroy the distorting influences of metaphysics upon scientific thinking in general and legal thinking in particular in order to pave the way for the scientific understanding of the importance of law and legal science for the life of human beings within a state. (Bjarup , 1)…”
After proposing an alternative definition of what “law” (jurisprudential concept) is, this article demonstrates the impossibility of identifying “the law” (what law‐makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is a more or less abstract range of options. Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law‐makers. We need to remove the mystery that surrounds the law so as to provide for greater transparency. This transparency can be gained by requiring law‐makers to declare their inescapable biases where they influence their lawmaking.
“…Summarising the views held by the Scandinavian legal realists, Bjarup argues that:They shared the view that it is vital to destroy the distorting influences of metaphysics upon scientific thinking in general and legal thinking in particular in order to pave the way for the scientific understanding of the importance of law and legal science for the life of human beings within a state. (Bjarup , 1)The observation that courts merely express legal rules and part of the context associated with those rules, and the consequences stemming from such a realisation, lend support to this conclusion, and similar conclusions reached by both Scandinavian legal realists, such as Hägerström, Olivecrona, Ross and Lundstedt, and American legal realists, such as Holmes, Frank and Llewellyn…”
Section: So What Do Lawmakers Make?mentioning
confidence: 84%
“…They shared the view that it is vital to destroy the distorting influences of metaphysics upon scientific thinking in general and legal thinking in particular in order to pave the way for the scientific understanding of the importance of law and legal science for the life of human beings within a state. (Bjarup , 1)…”
After proposing an alternative definition of what “law” (jurisprudential concept) is, this article demonstrates the impossibility of identifying “the law” (what law‐makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is a more or less abstract range of options. Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law‐makers. We need to remove the mystery that surrounds the law so as to provide for greater transparency. This transparency can be gained by requiring law‐makers to declare their inescapable biases where they influence their lawmaking.
“…Likewise, no restrictions can be made on the woman's autonomy with regard to lifestyle choices affecting the health of the foetus. Consequently, under Danish law there would be no legal grounds for force feeding her in case of hunger strike 16 or confining her in a rehabilitation clinic in case of drug or alcohol abuse. Prior to the point of viability and birth the foetus is implicitly labelled as something of importance since the autonomy-based right to abortion is limited to the first trimester.…”
The article discusses the inadequacy of traditional theory on legal personhood in relation to embryos and foetuses. To challenge the somewhat binary view of legal personhood according to which the 'born alive' criterion is paramount the article demonstrates that the number of legal categories in which embryos and foetuses are placed are much more complex. These categories are identified using Danish legislation as an example and on that basis the article extracts and identifies the different parameters that play a part in the legal categorisation of the human conceptus.
“…3; Olivecrona , 184). And Lundstedt seems entirely content to accept the use of many basic legal concepts for practical purposes as long as it is recognised that juristic foundations for them linked to the method of justice are chimeral ( SRAP 117–8; and see Ljungman , 356–7; Olivecrona , 176–7; Bjarup , 11–12). Thus, it has been said that his “own works on contract and tort law do not differ much from the works on these topics by other legal scholars” (Spaak ).…”
Section: The View From Afar: Lundstedt Abroadmentioning
This article argues that juristic theories must be understood in relation to the historical conditions in which they have emerged. This is not to reduce theories to their context but to gain essential insight into their aims, meaning, and scope with the aid of such “external” reference points. Here I use the ideas of the Swedish legal realist Vilhelm Lundstedt to illustrate these claims, choosing his juristic theory for this purpose specifically because it has been so widely seen (at least by non‐Scandinavian interpreters) as deeply puzzling and “extreme.” The article argues that his central ideas are readily intelligible in historical context. But such a contextual examination of juristic ideas also makes it possible to assess what in them can properly travel beyond immediate context: in other words, what insights about the nature of the jurist's task can legitimately be taken from them for more universal application. Lundstedt's work, despite having been largely ignored or excluded from international juristic debate, has something to offer here if seen through a contextualising lens that sets the possibilities for its broader application in sharp relief.
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