Jurisprudence Scandinavian Realist view on Justice and Right - Term Paper Example

«Jurisprudence Scandinavian Realist view on Justice and Right» Introduction Jurisprudence or the wisdom of law is the systematic study of various aspects of law, its causes and effects and the goals that are to be achieved by its application to the society. There are various schools of thought which attempt to provide a theoretical base for the idea of jurisprudence as they perceive it to be. According to various schools, there are various aims and objectives for law. Almost all the major systems of law have their roots in religion. The earliest proponents of law believed that the law was the application of moral tenets to the day to day affairs where deviance from the norm was considered to be a sin. Down the ages the ideas regarding the functioning and aims of law have changed. There is a school of thought which believes that laws as they are ought to be obeyed whether or not they are just or achieve the good of the community. Then there is a school of thought which says that unnatural laws should not be obeyed. Proponents of Realism in jurisprudence assert that law is what law does, that the law has force because what the branches of government can achieve by its application. Scandinavian realism in jurisprudence is a relatively new phenomenon. The realists, led by Axel Hagerstrom bought about a change in approaching the subject of law. They thought that there is no pure idea of law; that various factors, social, economic and cultural mattered in the effectiveness of application of law. Realists believe that the law should be used as a tool to achieve desired social objectives. The aim of law is different according to different theories. There are also various theories whether individual liberty is more important than the social good. The Scandinavian realists who insist that justice, right, duty and such other legal terms are hollow have their own conceptions of the aims of law. This paper seeks to examine the views of Scandinavian realists regarding the concepts of justice and right. The paper will then examine the views of these realists regarding aims of law and whether they prefer law to protect individual liberties. It will also be a part of this paper to examine whether the Scandinavian realists intended to use law as a tool to achieve larger social good. The paper will firstly define terms, give a brief outline of jurisprudence and then analyze the views of the Scandinavian realists. It will examine the concepts of rights and justice as they evolved over the years, and analyze the views of the Scandinavian realists regarding these concepts. This will be done by studying some quotes from them. After this analysis, the paper will go on to examine the cumulative effect of these views on the understanding of the problem at hand that is – Do the Scandinavian realists view law more as a system for protecting individual liberty or as a tool to achieve the larger social good? Jurisprudence Jurisprudence means, literally, the wisdom or skill in a particular field of knowledge (prudence) of law (juris, derived from jus). The Latin term Jus means both “what is right” and “law” (Capparo et al. (eds) 2005). Thus we have the word jurisprudence itself signifying the notion of what is right as the law. Jurisprudence is often taken to mean the science or philosophy of law. Encyclopedia Britannica suggests three branches of jurisprudence; analytical, sociological and theoretical. The analytical branch provides the terminology to be employed and other details necessary for studying jurisprudence as a logical system. The sociological branch deals with the influence of various sociological factors on the evolution of substantive and procedural law. It also deals with the effects of law in its application to the society. Whereas the theoretical branch of jurisprudence deals with the evaluation of effectiveness in achieving goals for the enactment of law. Schools of Jurisprudence There are a lot of approaches to jurisprudence. As with every science, jurisprudence i.e. the science of law has also various theorists. There are many schools of thought, however, it is commonly understood that the following are the main schools of jurisprudence. Formalism is a school of thought according to which law is a science, a field of study with its own set of rules and regulations. According to its theorists, a judge is like a scientist when dealing with a case. He applies the relevant legal principles to the facts of a case, and identifying the rights and wrongs by either party, gives his judgment. The relevant legal principles are derived from various sources of legal authority which forms the legal data base including case law, precedent, custom and statutory law. Logic is to be applied in deciding matters. Formalists suggest that the concepts of law are not meant to be understood by the laymen, and that the art of reasoning perfected through years of practice, study and experience is necessary for a judge. Realism The realists are radically to the opposite of this theory. "The life of the law has not been logic, it has been experience,” said Oliver Wendell Holmes, the foremost figure in American jurisprudence realist. Realists assert that the enactment and application of law is not a scientific phenomenon and that various factors such as the social, economic and cultural aspects of a matter are to be considered before arriving at any decision. There is close relation between law and other social sciences and the study of law should also include the overview of factors that go in to make a certain thing happen. Legal Positivism Positivism is a school of thought which suggests that law should be taken to mean only those rules enacted by the government. According to this theory, religious diktats or moral prejudices should not influence the judgment. Thus, the depiction of pornographic material on a television channel may be immoral or against the religious tenets of a particular religion, but whether the telecast was legal or otherwise should be determined by the test of the legal provisions i.e. the actual statute that determines what is pornography and determines the limits of its exhibition. Law, according to positivists should be obeyed because it is a law, not because what the law says is right and not because to obey law in itself is right. The positivists’ reservation about law not enacted by government is that such laws do not have the sanction i.e. the disobedience of these sorts of laws can go unpunished. Whereas if a person disobeys a positive law i.e. a law enacted by the government, he can be punished. Also, compliance with such a law can be compelled by judicial process. Natural Law According to the proponents of natural law theory, justness of law is the paramount consideration. The eternal principles, morals and ethics as propounded in various theological discourses, the religious tenets and the ancient beliefs cherished by communities are also laws that should be obeyed. According to this theory, all commands that are unjust are the source of law. Anything which is not just should not be made in to a law and should not be enforced. According to the proponents of this theory the law must consider the principles of justice and morality prevalent in the society, whether or not recognized by the government. Scandinavian Realism The origin of Scandinavian realism in jurisprudence is attributed to Axel Hagerstrom (1868 – 1939), a Swedish philosopher who was skeptical of terms commonly used. He rejected the concepts of rights and duties. Justice to him was also a meaningless term, signifying nothing. In his seminal work Philosophy & Religion, Hagerstrom says, “[W]e must destroy metaphysics, if we ever wish to pierce through the mist of words which has arisen out of feelings and associations and to proceed ‘from sounds to things’”. Scandinavian realism took its ideas as a revolt to the metaphysical approach to jurisprudence then prevalent. Hagenstrom’s motto was “Praeterea censeo metaphysicam esse delendam” (moreover I propose that metaphysics must be destroyed) (Bjarup N. D.). As opposed to idealism, realism insists that law like all other sciences, should be based on empirical data and not on values like justice, right etc. As Bjarup says, “Scandinavian Legal Realism was founded .... in order to destroy the distorting influence of metaphysics upon legal thinking and to provide the secure philosophical foundation for scientific knowledge of the law” (Bjarup, 2005) According to the theory of legal realism law is one of the factors in the whole social atmosphere that is influenced by the events surrounding a particular issue. Where the idealists Whether or not justice is done is an opinion of an individual. That individual can not be objective, and his approval or disapproval of a particular fact or outcome of a particular legal dispute is subjective, biased as it is in his prejudices and notions of ‘Justice’. Scandinavian Realism in jurisprudence was carried forward by two of the main students of Hagerstrom, namely A. V. Lundstedt and Karl Olivecrona. Alongside Hagenstrom, a Dane named Alf Ross was also instrumental in formulating the philosophy that came to be known as Scandinavian realism. Both argue that law is influenced by many other factors, but the very understanding of law as contemplated by the two schools of thought is different. Though the more popular American realism is similar to the Scandinavian concept of realism, it is different from the later in that it takes a sociological approach to jurisprudence, whereas proponents of Scandinavian realism prefer a psychological approach. In the words of Ross, as quoted by Bix, “the fundamental legal notions must be interpreted as conceptions of social reality, the behavior of man in society, and as nothing else” (Bix, 2007). Vilhelm Lundstedt , another prominent Scandinavian realist says “As a science jurisprudence [that is, legal science] must be founded on experience, on observation of facts and actual connections, and consequently be a natural science.” Thoughts of Scandinavian Realists on the concept of Right The Scandinavian realists are in essence philosophers more than jurists. They have dealt with the concepts common in law with great attention towards the meaning of the terms. It would be hence appropriate to analyze some thoughts of these writers. In his essay Spaak quotes Olivecrona for his view on rights (Spaak, 42) The essence of the notion of a right is that of power. The owner “can” do what he likes with the object; the creditor “can” claim a sum from the debtor – that is the way we paraphrase the notion of a right when we are trying to explain what we are thinking of. /…/ This power, however, does not exist in the real world. We have seen that it is not identical with the actual control over the object generally exercised by the owner, nor with his actual ability to set the legal machinery in motion. It is a fictitious power, an ideal, or imaginary power. According to Hagerstrom, however, the concept of right, does influence individuals, by causing psychological reactions. Thus where a person puts up a notice on the gate “private property- trespassers will be prosecuted” he is not only asserting his right, the notice does indeed deter most people from entering the premises. The feeling of power that an individual has is because of his perception that he has that right, hence the concept is tangible. According to Hagerstrom, the concept of (legal) “rights” has to be considered merely as “an advantage the individual gets through the legal system” (Mindus, N.D.) Any person’s existence in a society gives him certain prerogatives concerning certain things which he is said to own or possess. His prerogative may consist of the exclusive use of that thing, which necessarily implies that others are not entitled to the use thereof, except with his permission. He has then, in law, what is termed a ‘right’ to that thing. He can enforce his right to use that thing and deny anybody else the same right. But that right, howsoever perfect it is, can not be understood by tangible means, it is only a perception. Alf Ross’s statement about tu – tu (Ross, 1951) is quoted often whenever Scandinavian realism is discussed. “It must be admitted, our terminology and our ideas bear a considerable structural resemblance to the primitive magic thought concerning the invocation of supernatural powers which in turn are converted into factual effects. Nor can we deny the possibility that this resemblance is rooted in a tradition which, bound up with language and its power over thought, is an age-old legacy from the infancy of our civilisation.” The use of the concept of rights occurs in statements which do not seem to give an account of rules of law but to be descriptions of pure facts (Ross, . Olivecrona, in his book Law as fact (Olivecrona, 1971) maintains the same feelings, “The right is held to exist by virtue of the law and certain operative facts; and its possessor need not issue any commands”. But there has to express a declaration or assertion of the right. Golding (2005) gives the following explanation with Olivecrana’s thoughts “a right is not identical with a physical power that one person has over another; it is, as Olivecrona states, a moral power. It is established by an act of will by one party that is accepted by the other. The act of will is made known through a promise, a declaration of will, in which the declarer alienates a part of his liberty, his right to decide over his own actions, to the other party, the promisee. Thoughts of Scandinavian Realists on the concept of Justice Like ‘right’ and ‘duty’, according to the Scandinavian realists, ‘justice is also a hollow term. Vilhelm Lundstedt says in his work Legal thinking revised () says that the very concepts of natural justice and material law are not real, and obtain validity only through the operation of law. "the entire substratum for legal ideology, the so-called material law and its basis natural justice, lacks the character of reality; … accordingly, even legal rights, legal obligations, legal relationships and the like lack such a character; … the common sense of justice (the feelings or sentiments of justice) far from being able to support the ‘material law’ on the contrary, receives its entire bearing through the maintenance of law." However, terms such as ‘justice’ do prompt emotional responses in individuals, thus bolstering legal efficiency. The term ‘justice’ has no significance beyond this role within the legal system. Realists on Aim of Law The main aim of the interdisciplinary approach of the legal realists has always been the larger social good. Realists have always maintained that the study of law in isolation is a futile exercise as there are many factors that have an influence on a particular event. In view of this, social sciences ought to be studied by lawyers and legal academicians. In fact, as Erlanger et al (2005) say, “Much of the energy of New Legal Realism and its antecedents in the United States has gone toward bringing together social science and law in the name of social progress through, or in conjunction with, the law.” Realists have also held that the very start towards the practice of law i.e. the studentship itself should encourage careful analysis of all factors that are relevant, that not only law but also other skills should be taught. It is imperative to allow the student of law to exist and understand the society around him. For legal training as contemplated by the realists, Traditional legal material is necessary but not sufficient …. . Decades of socio - legal scholarship have established that law is a social institution that does not operate in a vacuum. Law is an open system, legal rules are not self enforcing, and informal processes often carry the day; thus, to practice law effectively, lawyers combine their understanding of the law with their understanding of the real world (Erlanger et al 2005) It is apparent from the above discussion that the Scandinavian realists are more concerned about the place of the individual in the society. But the individual liberty is not more important than the larger social good, for after all the membership of a society gives an individual any of his rights. Without a society, there would be no privileges and no way to put restrictions on the infringement of the said rights by others. The maintenance of law gives reality to the ideas of ownership, of things and prerogatives attached thereto. Through the study of psychology of the individual and the influence on their thinking by the concepts and terms used in law, the Scandinavian realists sought to create a system of law better suited for application thereof than the conventional law formed of metaphysical concepts empty of meaning. Conclusion The Scandinavian realists presented a new approach to understanding law. Jurisprudence according to them is more about understanding the relationship between the concepts that in themselves are empty of meaning, though they do work their magic by the reactions that they cause in the minds of people. The influence of these empty terms is necessary to maintain a balance in society, but the idea of justice and law are in themselves hollow. What drives the society is the operation and application of law rather than the ideas of this or that word. Individual liberty is a fine concept, but for the enjoyment of the said liberty, it is necessary that the individual stays in the society. Only law can afford liberty, but law also makes the individual perform his duties. In this way, it binds him to the society and necessarily, curbs his freedom. Hagenstrom believed, in his version of rights and duties, in contrast to his understanding of Roman law that the individual’s participation in the society gave him certain feelings of power and of restriction. MacCormack (1970) quotes Hagenstrom as saying, “The individual gave spontaneous expression to his feelings of power by saying he had a right, and to feelings of restriction by saying that he had a duty”. Thus the aim of law according to the Scandinavian realists is the larger social good, which can be achieved by the application and utilization of various social sciences along with legal rules and regulations to the circumstances prevalent at a particular time in a society, and using law as a tool for social improvement. References Bix, B, Ross and Olivecrona on rights (2007) Australian Journal of legal philosophy viewed on 5th September 2010 Bjarup, J, Scandinavian Realism Internet article, (N. D.) viewed 4th September 2010 < http://ivr- enc.info/index.php?title=Scandinavian_Realism> Bjarup, J, The philosophy of Scandinavian legal realism(2005) Ratio Juris, Volume 18, Issue 1, March 2005 viewed 5th September 2010, Erlanger, H, Garth, B, Larson, J, Mertz, E, Nourse, V, Wilkins, D, 2005 Is it time for a new realism? Wisconsin Law Review, Vol. 2005, No. 2, 344 viewed 4th September 2010 Golding M, P, Rights, performatives and promises in Karl Olivecrona’s legal theory p. 17 (2005) Ratio Juris. Vol. 18 No. 1 March 2005 Lundstedt, V, Legal thinking revised (Stockholm, 1956) Almqvist and Wiksell MacCormack, G, Scandinavian Realism, 1970, The Juridical Review Mindus, P, Axel Hagerstrom (N. D.) viewed 5th September 2010 Pattaro, E, Rottleuthner, H, Shiner, R. A., Packzenick, A, Sartor, G, 2005, A treatise on legal philosophy and general jurisprudence (p. 296) Springer Publications Ross, A, On law and justice, p. 173 (1959) Berkeley: University of California Press Ross, A, Tû-Tû, Harvard Law Review Vol. 70, Issue 5, March 1957 Spaak, T, Karl Olivecrona’s legal philosopshy, a critical appraisal, 2011, Ratio Juris, viewed 5th September 2010, Read More