Realism about the Nature of Law

• DOI: http://doi.org/10.1111/raju.12073
• Date: 01 March 2017
• Published date: 01 March 2017
• Author: Torben Spaak

Realism about the Nature of Law

TORBEN SPAAK*

Abstract. 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 main-

tained 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 implica-

tions 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 conven-

tionalism 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.

1. Introduction

Legal realism comes in two main versions, namely American legal realism and

Scandinavian legal realism. Both versions flourished in the 1930s and the 1940s.

* Professor of Jurisprudence, Department of Law, Uppsala University. I would like to thank

the participants in the advanced seminar in practical philosophy, Department of Philosophy,

Uppsala University for helpful comments on the article. I would also like to thank Åke

Frändberg, Thomas Mautner, and Patricia Mindus for helpful comments on an earlier version

of the article, Brian Bix, Erik Carlsson, Michael Steven Green, and Jaap Hage for helpful

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But in the United States, legal realism disappeared from the forefront of legal

thinking in the 1950’s and 1960’s and was succeeded in the 1970’s and the 1980’s

primarily by the so-called Critical Legal Studies movement. And in Scandinavia,

legal realism more or less disappeared from the scene at the same time, although

its leading exponents—Alf Ross and Karl Olivecrona—continued to write in a

realist spirit about jurisprudential matters well into the 1970s. The younger gen-

erations of Scandinavian jurisprudents have not, however, been willing to take up

the mantle of the realists, although some, such as Bindreiter (forthcoming), Eng

(2007, 275–314), Mindus (2009), and Spaak (2009b, 2009c, 2011, 2013, 2014) have

written appreciatively about them. Indeed, in the past 30–40 years the teachings of

Scandinavian realists have evoked more interest in Southern Europe that in the

Nordic countries, especially in Italy. Enrico Pattaro’s writings (1972, 1980, 2007,

2009, 2010), in particular, come to mind here.1

The Scandinavian realists were naturalists and non-cognitivists,2who maintained

that conceptual analysis (in a fairly broad sense) is a central task of legal philoso-

phers, and that such analysis must proceed in a naturalist, anti-metaphysical spirit.

Indeed, I have argued elsewhere (Spaak 2009c) that the realism espoused by the

Americans and the Scandinavians alike is to be understood as a commitment to

naturalism, conceived as the ontological claim that everything is composed of

natural entities whose properties determine all the properties of that which exists,

or as the methodological (or epistemological) claim that the methods of justification

and explanation in philosophy must be continuous with those in the sciences, or as

the semantic claim that philosophically acceptable concepts must be analyzable in

terms of natural entities or properties.3

In this article, I wish to consider the commitment to ontological naturalism and

non-cognitivism on the part of the Scandinavian realists 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 cannot and do not

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

comments on Section 8, Håkan Andersson for helpful comments on Section 9, and Sven Ove

Hansson for discussing with me various philosophical questions that come up in this article.

In addition, I would like to thank the participants in the conference “New Frontiers of Legal

Realism: American, Scandinavian, European, Global” at the University of Copenhagen 29-30

May 2012—especially Jes Bjarup and Brian Leiter—for helpful comments on my presentation

of the main ideas in the article. Finally, I would like to thank Robert Carroll for checking my

English.

1On the reception of the legal philosophy of the Scandinavians in the Latin world, see Faralli

1999.

2As we shall see in Section 4, the early Olivecrona appears to have embraced at times an

error-theoretical analysis of moral and legal judgments. On this, see Spaak 2009c, 252–5.

3Leiter (2007) has argued that the American realists were methodological naturalists, who

were concerned solely with the study of adjudication. This sounds right to me. I review

Leiter’s book in Spaak (2008).

2Torben Spaak

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the mantle of the realists, although some, such as Bindreiter (2016), Eng

76 Torben Spaak

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