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Alf Ross

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Alf Ross (1899–1979) was a Danish jurist and legal philosopher, professor at the University of Copenhagen from 1938 to 1969, and the leading Danish representative of Scandinavian legal realism. His Om Ret og Retfærdighed (1953; English On Law and Justice, 1958) reconstructed legal science on an anti-metaphysical basis in the tradition of Axel Hägerström, and his Hvorfor demokrati? (1946) shaped the post-war Scandinavian conception of democracy. From 1959 he sat as the first Danish judge on the European Court of Human Rights, while remaining publicly skeptical of the human-rights instruments the Court exists to enforce.1

From Kelsen to Hägerström

Ross was born in Copenhagen on 10 June 1899, took his law degree there in 1922, and spent 1923–1926 on a study tour through Austria, France, and England, where Hans Kelsen in Vienna became his first lasting influence. His Kelsen-inspired dissertation, Theorie der Rechtsquellen (1929), was rejected by the Copenhagen law faculty in a famously scathing assessment, and was instead accepted as a philosophy doctorate at Uppsala, where Ross spent 1928–1929 studying under Hägerström. With Virkelighed og Gyldighed i Retslæren (1934) he finally earned the Danish law doctorate, became docent in 1935, and professor of international law in 1938, later taking over jurisprudence and constitutional law. He died in Virum on 17 August 1979.23

The biography matters to the doctrine: Ross came to Hägerström from Kelsen’s pure theory of law, and his mature realism reads as an attempt to keep Kelsen’s separation of law and morals while grounding validity in social and psychological fact rather than in a normative Grundnorm. In Om Ret og Retfærdighed the neo-Kantian and phenomenological baggage of Hägerström was replaced with logical empiricism: statements about valid law are predictions of the premises on which judges will decide future cases — the so-called prediction theory.24

Rights without semantic reference

In the Scandinavian debate of 1945–1953 over the concept of a “legal right,” Ross staked out the position between Vilhelm Lundstedt’s outright refusal and traditional rights-talk. He followed Hägerström and Lundstedt in holding that “rights” denotes nothing in time and space, accepting that it is “superstitious to maintain that something mystical and indeterminable comes into being” between a legal fact and a legal consequence. But he proposed that the word functions legitimately as a “tool for the technique of presentation” — an abbreviation connecting operative facts to legal consequences, without any semantic reference of its own. Lundstedt, who charged anyone still using the word as “a sinful heathen,” was in Ross’s judgment behaving like a “Swedish missionary.”4 The position is softer than Karl Olivecrona’s “hollow word” analysis but shares its premise: rights-talk is technique, not ontology.

Democracy as procedure

Hvorfor demokrati? (1946), which Ross called his modest contribution to Denmark’s fight for freedom, is the vault’s clearest statement of a value-nihilist democratic theory. If someone does not like democracy, freedom, or peace, no logical proof can show him wrong; Ross answered with a personal declaration: “I know very well what I shall stand for and fight for. Only I do not imagine myself, or try to make others believe, that it can be scientifically proved that my point of view is the ‘right’ one.”5 His main strategy was conceptual. Against communist attempts to annex the word through “economic democracy,” he distinguished formal democracy from democracy as economic content or as a way of life, and insisted the formal meaning is the heart of the concept: democracy “indicates a how, not a what” — a method for establishing the political will, measured by the majority principle. Individual rights figure as prerequisites for a well-functioning majority principle, and are therefore secondary to it. Shared basic values remain necessary, but as a sociological precondition that lets a minority accept majority decisions, not as a metaphysical foundation.5

Skeptic of the post-war rights order

As professor of international law Ross wrote the standard Nordic textbook (Lærebog i folkeret, 1942), two books on the UN (1950, 1963), and a series of reviews that document his hostility to the emerging human-rights idiom. He attacked Trygve Lie’s praise of the UDHR as a “torch of freedom”: the declaration’s text was, for Ross, “a true masterpiece of insincerity, including deliberately misleading formulations, and thinly disguised backdoor escapes for a hasty retreat.” A political organization like the UN should deliver political results, not moral lectures. He was equally hostile to judicial review, pointing to the American Supreme Court’s conservative blocking of the New Deal, and he analyzed the post-war natural-law renaissance as a psychological reaction against the uncertainty of human existence — remarking that he would not be surprised to find former Hitler supporters among its contemporary preachers. When Frede Castberg complained in 1966 that Nordic jurisprudence still rendered rights meaningless, Ross corrected the account without mentioning human rights with a single word, although he was at that time a sitting judge of the ECtHR.4

Ross in the vault

Ross is the constructive pole of Scandinavian legal realism: where Lundstedt and Olivecrona supplied the critique, Ross rebuilt legal science, democracy theory, and international law on the same premises. The Scandinavian Value Nihilists places him beside Ingemar Hedenius and Herbert Tingsten as one of the three democratically minded followers who answered the charge that value nihilism had prepared the ground for totalitarianism. His case also disciplines the vault’s causal thesis: Did legal realism weaken Swedish rights protection notes that Denmark absorbed Ross’s realism yet kept a functioning, if restrained, rights order — evidence that the doctrine alone does not determine institutional outcomes.

  1. Knud Waaben, “Alf Ross 1899–1979: A Biographical Sketch,” European Journal of International Law 14(4) 2003, doi:10.1093/ejil/14.4.661. Waaben dates the ECtHR tenure 1959–1972, as does Strang (2018); reference works commonly give 1959–1971. ↩

  2. “Alf Ross (1899–1979),” lex.dk (Den Store Danske), lex.dk/Alf_Ross. ↩↩

  3. “Alf Ross,” Dansk Biografisk Leksikon, biografiskleksikon.lex.dk/Alf_Ross. ↩

  4. Scandinavian Legal Realism and Human Rights (Johan Strang, Nordic Journal of Human Rights 36(3) 2018); saved manuscript. ↩↩↩

  5. The Scandinavian Value Nihilists (Johan Strang, NORDEUROPAforum 2009); saved copy. ↩↩

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