The Concept of Scandinavian Realism
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THE CONCEPT OF SCANDINAVIAN REALISM SAEESH NAIK FY. LLM JURISPRUDENCE 1 TABLE OF CONTENTS SR NO. CONTENTS PAGE NO. 1 INTRODUCTION 3 2 BASIC FEATURES OF 5 REALIST SCHOOL 3 THE SCANDINAVIAN 6 REALISTS 4 PHILOSOPHICAL 7 BACKGROUND 5 AXEL HAGERSTORM 9 6 KARL OLIVECRONA 12 7 ALF ROSS 17 8 ANDERS VILHELM 19 LUNDSTEDT 9 LAW AS FACT 21 10 CRITICISM AGAINST 24 REALISM 11 REALISM IN THE INDIAN 25 CONTEXT 12 CONCLUSION 29 13 BIBLIOGRAPHY 30 2 INTRODUCTION In the nineteenth and in the early years of the twentieth century, laissez-faire1 was the dominant creed in America. This creed was associated, in the intellectual sphere, with a certain attachment to what has been called “formalism” in philosophy and the social sciences. This was marked by the reverence for the role of logic and mathematics and ‘a priori’2 reasoning as applied to philosophy, economics and jurisprudence, with but little urge to link these empirically to the facts of life. Yet empirical science and technology were increasingly dominating American society and with this development arose an intellectual movement in favour of treating philosophy and the social sciences, and even logic itself, as empirical studies not rooted in abstract formalism. In America this movement was associated with such figures as William James and Dewey in philosophy and logic, Veblen ion economics, Beard and Robinson in historical studies, and Mr. Justice Holmes in jurisprudence. It is important to note that this movement was especially hostile to the so-called British empirical school derived from Hume, and to which Bentham, Austin and Mill adhered. For while it is true that these thinkers were positivist and anti-metaphysical they were for the anti-formalists not empirical enough, since they were associated with a priori reasoning not based on actual study of the facts, such as Mill’s formal logic and his reliance on an abstract “economic man,” Bentham’s hedonic calculus of pleasure and pains, and the analytical approach to jurisprudence derived from Austin. They were particularly critical of the ahistorical approach of the English utilitarians. Nor, unlike the sociologists of Pounds persuasion, were they interested to borrow from Bentham such abstract analyses of society as his doctrine of 1 See Black’s law dictionary, meaning governmental abstention from interfering in economic and commercial affairs. n. [French “ Let (people) do (as they choose)”] 2 [Latin “From what is before”]. Deductively, from the general to the particular (as an analyst, he reasoned a priori- from seemingly self evident propositions to particular conclusions). 3 conflicting interests. What these writers in their various fields were concerned to emphasise was the need to enlarge knowledge empirically, and to relate it to the solution of the practical problems of man in society at6 the present day. Hence pragmatism attempted to link truth with practical success in solving problems, and in its more developed form of instrumentalism, Dewey further emphasized the empirical approach by treating knowledge as a kind of experience arising out of human activity creating a problem, and which is attained when the problem is solved. Again Veblen emphasized the importance of studying institutions empirically especially the connection between economic institutions and other aspects of culture. The new historians stressed the economic forces in social life and the need to study history as a pragmatic means of controlling man’s future. All of these currents of thought played a vital role in the gradual movement of the United States from a highly individualist to a form of collective society in the first half of the twentieth century.3 The realist movement in United States represents the latest branch of sociological jurisprudence which concentrates on decisions of law courts. The realists contend that law has emanated from judges; therefore law is what courts do and not what they say. For them, Judges are the law- makers. However, modern Realism differs from sociological school as unlike the latter, they are not much concerned about the ends of law but their main attention is on a scientific observation of law and its actual functioning. It is for this reason that some authorities have called Realist approach as the ‘left wing of the functional school’. The contention of realists is that judicial decisions are not based on abstract formal law but the human aspect of the Judge and the lawyer also has an impact on court’s decisions. Some quarters feel that realist movement in the United States should not be treated as a new 3 Freeman M.D.A; Lloyd’s Introduction to jurisprudence; seventh edition; p. 799-800. 4 independent school of jurisprudence but only a new methodology to be adopted by the sociological school. According to Friedmann, the mental founders of the Realist movement in America were Oliver Windell Homes, Gray, Cardozo and Jerome Frank who emphasized on functional and realistic study of law not as contained in the statute or enactment but as interpreted and laid down by the courts in their judicial pronouncements. BASIC FEATURES OF REALIST SCHOOL Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decision in the case before them. In strict sense of the term, realist define law as generalized prediction of what the courts will do. The main characteristic features of realist jurisprudence as stated by Goodhart are as follows :-- (1) Realists believe that there can be no certainty about law as its predictability depends upon the set of facts which are before the court for decision. (2) They do not support formal, logical and conceptual approach to law because the Court while deciding a case reaches its decision on ‘emotive’ rather than logical grounds. (3) They lay greater stress on psychological approach to the proper understanding of law as it is concerned with human behavior and convictions of the lawyers and Judges. (4) Realists are opposed to the value of legal terminology, for they consider it as tacit method of suppressing uncertainty of law. (5) They prefer to evaluate any part of law in terms of its effects. 5 According to Llewellyn, there is no realist school as such, it is only a movement in thought and work about law. It presupposes that law is intimately connected with the society and since the society changes faster than law, there can never be certainty about law. There is no place for idealism in law and therefore, law as it ‘is ‘ must be completely with reference to a given set of facts to reach a decision, they lay greater emphasis on case law method of the study of law. Statutes are accepted as ‘law’ only when they have been approved as law by a court decision.4 THE SCANDINAVIAN REALISTS5 Despite the unfortunate ignorance in the common law world both of the working of the legal systems in the Scandinavian countries, and of their legal literature, common lawyers have slowly become aware of a significant movement in legal thought in the Nordic countries. Understanding of this movement increased as works by Scandinavian jurists were published in English. As our knowledge of the methods and concepts of Scandinavian law increased, the writings of these jurists became more meaningful. The relative insularity of the Scandinavian countries, with early national formulations of law, meant that Roman law had little impact on their civilization. In their substantive law and, though less so, in their legal science, they remained outside the main legal families of the world. Their law is less codified than the rest of the Europe and, as a result, more judge oriented. This comes out particularly in the writings of Ross though, to a lesser extent, in those of Olivecrona. The Scandinavian penchant for social welfare is apparent in the 4 Dr. Paranjpe N.V.; Studies in jurisprudence and legal theory; Sixth edition; Central law agency; p. 81-82 5 Supra: 3; p 855-85 6 writings of Lundstedt, though he himself would never had admitted that his philosophy was tarnished by ideology. Perhaps, above all, the jurists’ rejection of metaphysics comes out in the rather down-to-earth Scandinavian approach to crime and its treatment. PHILOSOPHICAL BACKGROUND Hägerström’s philosophical perspective is grounded in reason and concerned with the ontological and epistemological conditions that make empirical knowledge of the world possible which is expressed in his motto “Praeterea censeo metaphysicam esse delendam” (moreover I propose that metaphysics must be destroyed). His anti- metaphysical view rejects the existence of a meta-physical reality or supernatural world beyond the existence of the physical reality or natural world. However, he is committed to a metaphysical or ontological view that maintains the completely logical character of reality and this implies that reality is intelligible but not in terms of a spiritual reality of ideals and values but in terms of the physical reality of things and their necessary relations that exist apart from the human mind. Hägerström is committed to the realistic view that concepts are embedded in the facts of physical reality that make an impact upon the minds of human beings using their senses of sight and touch to arrive at knowledge of reality to be expressed in meaningful words in terms of concepts that can be used to express judgements since the truth of a judgement is the reality of the thing. The philosophical task is to use a conceptual analysis in order to determine whether words correspond to facts and thus express concepts or rather are words devoid of meaning. Hägerström calls his philosophy rational naturalism since it provides the secure foundation for the pursuit of scientific knowledge based upon the naturalistic approach that everything in nature is what it is.