Scandinavian realism: Hagerstrom, Olivecrona, Lundstedt and Ross

The approach developed in the Scandinavian countries is peculiar and has very little parallel elsewhere. There the law is judge-made law, and little codification happens.

The general position: law can be explained only in terms of observable facts, and the study of such facts is the science of law. Law is therefore a true science, concerned like any other with facts and events in the realm of causality. Law is nothing but the very life of mankind in organised groups, and the conditions which make possible the peaceful coexistence of masses of individuals and social groups, and their cooperation for ends other than mere existence and propagation.

Called the spiritual father of the Scandinavian realists. He had mastered Roman law and was essentially a jurist of philosophical temper.

• Legal science is an important tool in the reorganisation of society, in just the same way as the natural sciences depict natural phenomena. Legal philosophy is a sociological dispensation based on historical and psychological analysis.
• Rights, duties, property and the will of the State were all word play.
• The judicial formula that a thing shall be so is nearly a phrase which expresses no kind of idea, but serves as a psychological means of compulsion in a given case.
• The legal enactments concerning rights and duties are powers falling outside the physical world; even where the legislator understands rights and duties as a social state of affairs he aims to realise, the ideas of rights and duties operate as supernatural powers and bonds present and active throughout.
• The psychological half of the thesis, which is the part worth learning: rights and duties have a psychological explanation, found in the feelings of strength and power associated with the conviction of possessing a right. One fights better if one believes one has right on one's side.

• Rules of law are independent imperatives — propositions in imperative form which do not issue like commands from particular persons, and which function independently of any person who commands.
• The binding force of law is a reality merely as an idea in human minds. Law is a link in the chain of cause and effect.
• The content of a rule of law may be defined as an idea of imaginary action by people — for example, judges in imaginary situations. The application of law consists in taking those imaginary actions as models for actual conduct when the corresponding situations arise in real life.
• The State cannot issue commands, because it is individuals who issue commands; the State as an organisation cannot. This is the direct answer to Austin.
• Law chiefly consists of rules about force. The rules of civil and criminal law are at one and the same time rules for private citizens and rules about the use of force by officials.
• The belief that moral ideas are the primary factors, that law is inspired by them and that justice is represented by rules of law, is incorrect: such beliefs are not based on facts but are superstitions. The purpose of all legal enactments, pronouncements, contracts and other legal acts is to influence men's behaviour and direct it in certain ways.

His three contributions: that law as fact is something to be observed, and that legal conceptions such as command-duty and legal rights and duties are fantasies of the mind; that psychological pressures are the real reason for law; and that rules of law are imperatives distinct from commands.

• Natural justice is an external factor for balancing the interests of the parties on the basis of evaluation, and the entire substratum of legal ideology, and its basis natural justice, lacks the character of reality — as do legal rights, legal obligations and legal relationships.
• The common sense of justice is far from being able to support the material law; on the contrary it receives its whole bearing through the maintenance of law — the legal machinery which takes the common sense of justice into its service and directs it into grooves advantageous to society and its economy.
• Legal conceptions such as wrongfulness and guilt operate only in the subjective conscience and can have no objective meaning. To say that a defendant has violated a duty is a judgment of value, and so an expression of feeling. The only realistic significance of such terms lies in their connection with the coercive legal machinery of the State, called into action to enforce a contract or punish a wrongdoer.
• The example: in Rylands v Fletcher the court decided what the rules as to damages should be where something dangerous escaped from land. The court's reasoning in terms of an obligation on the property owner was illusory, superfluous, and — because it mystifies — harmful.
• What replaces justice as the foundation. The idea of law is to achieve justice, but law is not founded on justice; it is founded on social needs and pressures. Lundstedt promoted social welfare as the guiding motive of legal activity — decent food, clothing, shelter and all conceivable material comforts, as well as the protection of spiritual interests.

His contribution is a value-neutral realist theory which stresses that concepts such as right, duty and liability are tools of thought used in deciding cases.

• The chess analogy. Valid law may be understood on the analogy of a game of chess played by two players; one who does not know the rules is only an onlooker. Human social life acquires the character of community life from the fact that a large number of individual actions are relevant to, and have significance under, a set of common conceptions of rules, bearing the same relation to one another as move and counter-move.
• A norm is a directive standing in a relation of correspondence to social facts. A meaning is contained in a norm only if it corresponds to certain social facts, and the fundamental condition of the existence of a norm is that it is followed in the majority of cases — that the pattern of behaviour presented in the directive is followed by members of the society.
• Norms are addressed to courts. The existence of a legal norm has to be derived from an observed regularity in the courts' decisions; a norm may derive from a past decision, and all norms, including those of legislation, should be viewed as directives to courts. Legal rules are rules about the exercise of force and as such are directed to officials. From a psychological point of view there is another set of norms directed to individuals, which they follow and feel to be binding.
• The test of validity is the predictability of decisions. Valid law means the abstract set of normative ideas which serves as a scheme of interpretation for the phenomenon of law in action — which again means that these norms are effectively followed.

His three contributions: to divest legal validity of all metaphysical necessity; to hold that legal norms are valid if courts would enforce them and if they can be predicted, norms being addressed essentially to courts rather than to private individuals; and to hold that the natural law philosophy is fallacious in recognising the relationship between law and morals.

• The comparison the question usually wants. American realism looks at the judge and asks what he will do; Scandinavian realism looks at the concepts and asks what they really are, answering that they are psychological facts and nothing more. Both are empirical, but they are empirical about different objects.
• The one-line identifiers. Hagerstrom — rights and duties are word play, with a psychological explanation. Olivecrona — independent imperatives; law as rules about force. Lundstedt — legal ideology lacks the character of reality; social welfare is the guide. Ross — the chess analogy; validity is predictability; norms are directives to courts.
• The link back to Austin. Olivecrona's claim that only individuals, and not the State, can issue commands is the sharpest single answer to the command theory anywhere in the paper, and it is worth using in an Austin question as well as in a realism question.