Scandinavian Realism – Jurisprudence Notes

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  • Scandinavian Realism – Law cannot be explained by physical facts alone and exists by the psychological effects caused by certain facts.
  •  It sought to explain how the law changes the behaviour of people
  • This school of thought was opposed to metaphysical speculation and was concerned with the general investigation of the ‘fundamental facts’ of legal systems.

Karl Olivecrona

  • He believed that a monopoly of force is the fundamental basis of law.
  • Law is produced by natural causes such as the actions of human beings that have natural effects in the form of actual influence on the conduct of judges and individuals.
  • Law’s effect remains psychological as that the law is of binding character is an idea in human mind and nothing in the outside world corresponds to this idea.
  • Olivecrona rejected the Austinian’s concept of law as a command. He suggested that the law consists of imagined actions of imagined people (such as judges) in an imaginary situation.
  • Despite rejecting law as command he stated that law consists mainly of rules about the application of force.
  • He argued that it is the law that influences morality and not otherwise.
  • Law’s effectiveness depends on its moral influence but this moral influence is required only for few fundamental rules and for the rest of the rules it is sufficient that people consider adherence to law as a moral obligation and this morality is not counterbalanced by arbitrary or unreasonable jurisdiction.

Alf Ross

  • He made an attempt to describe the nature of a rule by using his description of norms and legal rules.
  • He stated that a norm has two aspects:-

o   a directive to do or not something;
o   correspondence of the directive to some social facts

  • In order to be a norm it must have both the above prescribed aspects.
  • Acts done out of practical necessity and not out of a feeling of social or moral obligation are not norms.
  • In order for directive to be a norm it must be perceived as binding.
  • Binding here does not mean fear of repercussion in case of noncompliance but rather internal feeling of obligation that norm is valid.
  • Legal rules are different from other norms in the sense that they employ use of coercion. They contain directives to those in authority.
  • Their effectiveness depends on:

o   allegiance of officials to the constitution and the institutions under it;  o   non-violent sanctions of disapproval and criticism that are implied in this attitude

  • Since legal rules are directed to officials, they are not generally enforced but are followed voluntarily.
  • From the psychological point of view, there are two sets of norms:-

o   Primary Legal Norms – Followed generally by citizens whether or not there is coercion.
o   Secondary Legal Norms – prescribe how cases are to be decided

  • From logical point of view only secondary legal norms exist

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