QUESTION

Scandinavian Realists take a different stance to that of the Americans, arguing that the
key to how the law works is to examine the psychological reaction of legal arguments
on the minds of officials and others caught up in the laws administration. Elaborate
on the difference between the two approaches and discuss the Scandinavian Realists
view on the idea of the validity and bindingness of law in relation to the duty to obey
law.

The term Scandinavian Realism was introduced in the 1940s to refer to a group of
philosophers and law professors from Sweden, Denmark and Norway taking their
starting point in the philosophy put forward by the Swedish philosopher, Axel Anders
Theodor Hagerstorm.1 The philosophers include Ander Vilhelm Lundstedt, Karl
Olivecrona, and Alf Niels Christian Ross. Scandinavian Realists strictly reject natural
law and believe that legal concept shall be based on experience, observation and
experimentation.2 They believed that everything about law is not objective but
instead, subjective. Subjective means the personal impression to how law should be
whereas objective means to the external impression like religion and morality. So, law
is something that one observe or experiment with and it is real as it is not influenced
by external factors.
The movement is characterized by a sustained attack on metaphysical ideas as
manifested in the opposition between realism and idealism. 3 Realisms hold that there
is one world, the world of reality that is related to empirical cognition. They locates
the law as part of the world of reality in terms of facts that is related to legal cognition
as empirical knowledge of social facts. The Scandinavian Realisms believe that law is
subjected to psychological or emotional reaction. They reject the idea of metaphysics
and believe that concepts are embedded in the facts of physical reality that make an
impact upon the minds of human being using their senses of sight or touch to arrive at
certain knowledge.
According to Scandinavian, a written law can be identified as merely stating a
factual attitude of approval and disapproval towards certain acts. Justice, right and
wrong is personally subjective and cannot be stereotyped to be anything objective

http://ivr-enc.info/index.php?title=Scandinavian_Realism
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?
article=1202&context=faculty_scholarship
3
http://ivr-enc.info/index.php?title=Scandinavian_Realism
2

such as morality and consent. They propose that legal concepts and law are per se
detached from any system of moral, religious and political value.4 They stated that it
is a complex system of linguistic and symbolic signs enacted with the purpose of
provoking a certain behavior to keep the society from a chaos. It is directive, that is to
show the right path for the community and judges ought to follow. The rules of
Scandinavian Realism revolve around three basic postulates, namely nature and
validity of law,5 significance of basic concepts of analytical jurisprudence and nations
of justice.6 Different philosophers propose different concepts with regard to their
views of Scandinavian approach. Even though both American Realism and
Scandinavian Realisms emphasis on the need to explore the social background of
legal rules and the need for basing the law on the needs of social life nevertheless,
both are distinct in certain manner.
Legal Realism (also known as American Legal Realism) should be
distinguished from its Scandinavian counterpart which had little concern for studies of
judicial decision-making and legal reasoning.7 Since Scandinavian Realists take a
different stance to that of the American Realists, both of them brings different
approaches on how the law works. Scandinavian Realists like Alf Ross, Axel
Hagerstorm and Karl Olivecrona thought that law should be analyzed through the
prism of social empirical sciences. Scandinavian Realists wanted to explain
scientifically how the law changes human behaviour. Scandinavian Realists was a
version of legal positivism, seeking a strict separation between law and politics and
law and morality.

Prof.Hari Chand. Modern Jurisprudence. International Law Book Services, 2011.

http://ivr-enc.info/index.php?title=Scandinavian_Realism
6
Prof.Hari Chand. Modern Jurisprudence. International Law Book Services, 2011.
5

Ratnapala, S., supra note 16, p. 109-116; Alexander, G. S. Comparing Two Legal Realisms
American and Scandinavian, American Journal of Comparative Law, 2002

While also devoted to empirical research, American Realists were mostly

preoccupied with the studies of judging, legal reasoning, and judge-made law.
American Realists was an extension of political progressivism, insisting the law is
deeply infused with question of power. Through this, both of these realists seem to
have been nearly opposite jurisprudential movements. Besides that, the differences
between American Realists and Scandinavian Realists can be observes through their
background political and legal traditions as the two groups of realists adopts different
strategies to pursue a common goal which is widening the scope of democratic order.
The Scandinavian sought to create more room for democratic politics by
making jurisprudence more scientific. By demystifying law, the Scandinavian
Realists sought to purge it from all remaining traces of the old Order, especially the
two pillars which is aristocracy and religion. Doing so required a continuous criticism
on the metaphysical character. The American Realists on the other hand, sought to
demonstrate the inevitably political character of law. However, both Realists shared a
common conception of democracy and both sought to realize their democratic ideal
by adopting strategies that suited their respective legal and political cultures.
According to American Realists, the rule is binding and judges have power to
authorize the rule. The reason of this, judge as a maker of a decision in cases and
rules, the power should be confers to them. According to Karl Lleweyn, there are two
types of rules that need to be observes which is the paper rules and real rules. For
Lleweyn, real rules only when it is a judgement made by the judges which is where
the court is actually operates, while a paper rules are only statutory rules which is
written on a piece of paper. He also point out that, Realists should be concern with the
effect of law on society. Law is an essential tool to which the rapid needs of social
change. For him, law was a means to achieve social ends and therefore should be

forward looking and law should be moulded to fit the current and future needs of
society. Thus, since the view of American Realists on law as a social institution, the
need of the law to be binds is important.
In applying to the recent situation in Malaysia, courts apply binding precedent.
This binding precedent applies to all lower court which they must follow the decision
made by the higher court. On the other hands, Scandinavian Realists believes that law
should not be binding.
According to Olivecrona, he begins the First Edition of Law as Fact with a
consideration and rejection of the view that the law has a binding force. Having
rejected several attempts to explain the nature of the bonding force by reference to
social facts, such as feeling of being bound, or inability to break the law with
impunity, Olivecrona concludes that the binding force has no place in the world of
time and space, but must be located in some sort of supernatural realm. It must have a
realm on its own, outside the actual world. But, he objects this is absurd. The law
could not be located in a supernatural world beyond the world of time and space,
because there could be no connection between such a world and the world of time and
space.
As Olivecrona sees it, we have the dividing line between realism and
metaphysics, between scientific method and mysticism in the explanation of the law.
To believe the law has a binding force and that therefore the law belongs in a
supernatural world is to give up in any attempt at a scientific explanation of the law
and legal phenomena and to indulge in metaphysics. Since this one of the
Scandinavian Realists view on the bonding force of law, they believe that there is no
binding force upon the law.

Another difference of approaches between the American Realists and

Scandinavian Realists is that, American Realists emphasizes on the work of courts
and they sought to understand all relevant factors to decision made by court.
According to Jerome Frank, he writes in his book, Law and the Modern Mind, which
all realists may divide into two categories that is rule sceptics and fact sceptics. For
rule sceptics is those who doubts that rules decide cases.
Karl Lleweyn is representative of the rule sceptics. The fact sceptics have their
primary interest in trial courts whereas rule sceptics have interest in appellate courts.
Frank says that facts are not objective. They are what the judge thinks they are and
what he thinks they are depends on what he hears and sees as the witness testify. He
felt to disclose the reality of court- houses because without public knowledge of the
realities of court- house doings, essential reform of those doings will not soon arrive.
Frank also concerns on the way in which the judges gets his hunches. He
views that, the way of the judges getting their hunches is the key to the judicial
process. Whatever produces the judge hunches makes the law. So the judge motives,
background and character must be studied. He proposed that, one should study the
judges opinions to find the real motivating reasons behind the decisions.
As for Scandinavian Realists, they are more concerned with the theoretical
operation of the system as a whole. This can be seen through two of Scandinavian
jurists view, Hagerstrom and Alf Ross.
According to Hagerstrom, he viewed that the law as only a words represents
simply emotional attitudes of approval and disapproval respectively towards certain
facts and situations. It is only a language form. It is either a person believes the words
may bring an obligation to the right and duty to them. His theory is that, the words
have a magic power to make people obey.

While Alf Ross holds that law has a normative character. A norm is a
directive which stands in a relation of correspondence to social facts. The main
feature of legal norms is that these are directives addressed to courts. Validity can be
established in terms of social facts, for example that a rule is effectively followed, and
those who follow it take the rule to be binding on them. Both of them argued on the
theoretical operation of system as a whole by observing on matters of words and
validity of the law among people.

In discussing on the Scandinavian Realists view on the idea of the validity and
bindingness of law in relation to the duty to obey law, lets look at what is the concept
of validity of law. The concept of validity of law is purported by Alf Neils Christian
Ross who was a Danish legal and moral philosopher and scholar of international law.
He is best known as one of the leading exponents of Scandinavian Legal Realism.
Ross states in his book, On Law and Justice,8 stated that there is no a priori validity to
give the law some special position. Experience serves as a guideline. 9 Ross goes to the
trouble of particularly thanking Hagerstorm who opened my eyes to the emptiness of
metaphysical speculations in law and morality. Ross accepts Olivecronas view that
legal rules are independent imperatives but Ross prefers to use the term directives
which he defines as utterances with no representative meaning but with the intent to
exert influence.10 The consequence is that legal rules are devoid of any cognitive
meaning, and this is a version of legal nihilism.11
Ross introduces the theory of predictions that is prognosis theory which must
be considered as the core of the philosophy of law in the legal realism. 12 It is
8
9
10
11

12

http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3080&context=ilj
http://en.wikipedia.org/wiki/Alf_Ross
http://ivr-enc.info/index.php?title=Scandinavian_Realism
Green, S. Micheal. Legal Realism as Theory of Law. Vol. 46.
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1299&context=wmlr
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1299&context=wmlr

concerned with the development of a scientific and objectivist foundation of legal

science. With this theory, Ross is challenging not only the classical and modern
conceptions of natural law in the legal philosophies of Aristotle and Kant, but also the
conceptions of legal positivism in the 20th century.13 Ross is inspired by the social
technological and utility oriented legal positivism in the philosophy of Bentham, but
he is also critical towards the idea of utility as a part of subjective legal policy.
Moreover, the legal positivism of Austin is criticized for focusing too much on law as
outer force and for not conceiving the function of law in society.
According to Ross, valid law is an expression of factual law in society and not
as a sanction of a legal system of norms as found by Hans Kelsen. So, he was of the
view that some prediction should be made by the official that is the judge so that his
decision will be followed in the future and not be attended by the above court. An
illustration for the prediction is where the judge will order compensation (law in
practice) because of particular normative idea, such as a breach of contract which is
followed by damages.14 Rosss working hypothesis for the explication of the concept
of valid of law is that in principle, it should be possible to define and explain this
concept in the same fashion as the concept of valid norm of chess.15
From this, it can be said that valid law means the abstract set of normative
ideas which serves as a scheme of interpretation for the phenomena of law in action,
which again means that these norms are effectively followed because they are
experienced and felt to be socially binding by the judge and other legal authorities
applying the law.16 The scheme of interpretation can be further subdivided into three;
(i) valid norm, (ii) norms of competence, and (iii) the rules felt to be binding. A norm

13
14
15
16

http://en.wikipedia.org/wiki/Legal_realism
M.D.A. Freeman. Introduction of Jurisprudence. Lloyds: Sweet & Maxwell, 2008.
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3080&context=ilj
M.D.A. Freeman. Introduction of Jurisprudence. Lloyds: Sweet & Maxwell, 2008.

is to be defined as a directive which corresponds in a particular way to certain social

facts.17
A specific norm exists if it is both followed and felt to be binding. This
obedience is logically by the judge. Therefore, law is primarily addressed to officials
to order the application of that force or give legal effect to the individual. He
propounded that a particular norm is valid for a given legal system if it will figure
materially in the decision of a controversy calling for the application of that norm.
With regard to the question of how norms are to be valid, it depends on two matters,
the prediction that when the facts arise from the application of the norm and that the
official will not only apply the norm on appropriate occasions but also feel bound to
apply that norm. Thus, if the judge applied the norm in the situation then the
statement of norm is valid and therefore it is a true statement or otherwise, if the judge
does not apply the norm, then the statement is false.
Norms conferring public or private powers that is the competence to issue
other norms, play a very important role in law.18 It is the power that allows
amendment, creation, and extinctions of the norms of conduct. The norms of conduct
is a code of conduct which is a set of rules outlining the responsibilities of, or proper
practices from individual party or organization such as customs, etiquettes, manners
and guidelines. Ross distinguishes between regulative and constitutive rules as two
radically different kinds of rules and classifies competence norms among constitutive
rules. This distinction runs parallel to Von Wright's distinction between rules that are
prescriptions and determinative rules. While the first regulate actions by commanding,
prohibiting, or permitting them, determinative rules define certain concepts. To view
competence norms as partial definitions of certain legal concepts like those of
17

M.D.A. Freeman. Introduction of Jurisprudence. Lloyds: Sweet & Maxwell, 2008.

http://www.jstor.org/discover/10.2307/3504945?
uid=3738672&uid=2&uid=4&sid=21103134418511
18

legislator, judge, etc. seems to open interesting perspectives and to shed light on at
least one aspect of these elusive norms. 19 The reason that the judge feels the rules to
be binding is the allegiance to the constitutions and the accepted sources of law.
Individual citizens obey the primary norms addressed to them from a mixture of
motives, fear of the sanctions to be imposed and belief that they should obey the law.
The Scandinavian realists deny that rules of law are heavily operative factor
in a legal system. Rules of law are abstract and unknowable entities. 20 Realists
emphasis the study of what the courts were in fact doing. Law must be defined in
terms of judicial action, not in term of rules. This is a frontal attack on rule based
theories like those of Hart and Raz. One of the most influenced Scandinavia realist is
Karl Olivecrona which provides on opinion of force of law. Karl Olivecrona was
a Swedish lawyer and legal philosopher. He studied law at Uppsala from 1915 to
1920. He was also a pupil of Axel Hagerstorm, the spiritual father of
Scandinavian legal realism.21 Olivecrona was a professor of procedural law and legal
philosophy at Lund University.22 Besides that, his writings emphasize the
psychological significance of legal ideas.
Karl Olivecrona is a prominent representative of the realistic legal theory. His
reasoning is based on hard facts and the reality that can be perceived, discarding
mysticism and religion. The law does not consist of divine commands, nor is it built
on commands stemming from an actual person posing as the legislator. In
Olivecrona's view, legal language serves as a means of social control, and while legal
terms may in reality be hollow words, they also serve as signposts with strong
19

http://www.jstor.org/discover/10.2307/3504945?
uid=3738672&uid=2&uid=4&sid=21103134418511
20
M.D.A.Freeman, Introduction To Jurisprudence, Sweet & Maxwell Publication, 8 th Ed.
21
Yatedo, Karl Olivecrona available at
http://www.yatedo.com/p/Karl+Olivecrona/famous/e2a4ced, accessed on 10 December
2013.
22
Ibid.

associations to legal concepts.23 He discarded the idea of the bindingness of law, and
consequently argued that the legal system consists of organized force. A legal system
unsupported by the use of organized force will become hollow and disrespected.
Legal rules that are not enforced will eventually succumb as the interdependency
between legal sanctions and law observance cannot be disregarded.
On the other hand, Karl Olivecrona also argued that law is essentially a huge
machinery set up for the purpose of protecting the security of society. Law is chiefly
consisting of rules about force and organized power.24People are bound to follow the
order as on the basis of the organized force which creates a sanction to the people to
follow the law. There is an idea of independent imperatives. It involves the idea of
action and an imperative mode of expression and the feeling from the psychological
association connected with the mode of expression with certain agencies.25 It is
emerges of the pattern of conduct in imperatives form which are distinguished from
other imperatives by virtue of the nature of feeling of being bound that is associated
with them. As for example, people in Westerns wearing black at the funeral.
The imperative statements found in the law must be distinguished from
commands. For example, a command implies some personal relationship arising
where X gives an order directly to Y in forms of words, gestures, which intended to
affect Ys will and subsequent actions. On the other hand, the imperative statement is
when there is the absence of a personal relationship between X and Y and been issued
independently, ordering actions and attracting the obedience. However, it is
impossible to maintain that law in a realistic sense is guaranteed or protected by force.
Besides that, Olivecrona also gives the example of a promise. The promisor feels
23

Lund University, When Morality and Legislation Diverge available

athttp://www.lunduniversity.lu.se/o.o.i.s?id=24965&postid=18582, accessed on 10
December 2013.
24
M.D.A.Freeman, Introduction To Jurisprudence, Sweet & Maxwell Publication, 8 th Ed.
25
Shad Saleem Faruqi, Karl Olivecronas Theory, Handout Notes.

himself bound and promisee feels entitled to expect the promisor to act
accordingly.26 These are immediate psychological effects. Secondly, if the promise
corresponds to certain requirements of the law, it is relevant to actions by state organs.
The promisors awareness of exposure to a sanction forties the immediate
psychological effect of the promise. 27The custom, tradition, feelings of social
solidarity and duty and the residue of generations of historical developments, combine
to assure the binding, non optional character of independent imperatives.
Meanwhile, the imperative theory has been so thoroughly criticized by other
jurists. It would be hard indeed to maintain that the immense bulk of rules contained
in the law of a modern state which are the commands of any single human being. 28The
binding force of law is mirage of language. 29 It is just an idea in the individual mind.
Most people have the feeling being bound by the law. Thus the law takes place
through the psychology of individual. Feeling of being bound associated the citizen in
obeying the law.
In Malaysia, there is no application of Karl Olivecrona supposition as every
citizen must accepted and bound by the law. Eventhough psychologically citizen can
interpret the law as not a law, there are bound to it. Their view or value regarding to
the law itself did not being counted. For example, the non-Muslim citizen does not
have any obligation regarding to the act of kissing in public as their religion or custom
did not prohibit it. However, there are bound to the law in Malaysia where citizen
cannot act indecently and there are bound by the law which the act of indecent or
kissing is an offence and thus are liable to it.

26

Golding, M.P, Rights, Performatives and Promisor in Karl Olivecronas Legal Theory available
at http://scholarship.law.duke.edu/viewcontentarticle=1956&context=faculty_scholarship,
accessed on 10 December 2013.
27
Ibid.
28
M.D.A.Freeman, Introduction To Jurisprudence, Sweet & Maxwell Publication, 8 th Ed.
29
Shad Saleem Faruqi, Karl Olivecronas Theory, Handout Notes.

In a nutshell, the Scandinavian propose that all laws have psychological

impact on the people, criticizing that all the jurists are merely describing words. The
reason why people obey the law is because their minds are set to be bound by it or
otherwise, sanctions will be imposed.