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Karl Olivecrona

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Karl Olivecrona (1897–1980) was a Swedish jurist, professor of procedural law at Lund from 1933 to 1964, and the most internationally read of the Scandinavian legal realists. His Law as Fact (1939; 2nd ed. 1971) carried Axel Hägerström’s anti-metaphysics to a world audience, presenting law as a system of psychological influence maintained by organized force. Within the vault he matters on two counts: his “hollow word” analysis of rights, and his wartime use of Hägerström to argue for European subordination under German hegemony — the episode that comes closest to vindicating the “might makes right” charge against the school.1

Formation and career

Olivecrona was born on 25 October 1897 in Norrbärke, Dalarna, into a family of jurists: his father Axel was a district judge, his grandfather Knut a professor of law and later justice of the Supreme Court, and his brother Herbert became a pioneering brain surgeon. He took his law degree at Uppsala in 1920, where Vilhelm Lundstedt’s lectures of 1918–1919 and Hägerström’s criminal-law seminars of 1920 opened his eyes, as he later testified, to the unscientific character of legal scholarship. Under Lundstedt’s supervision he took his doctorate in 1928 on the concept of the legal person in Roman and modern law, and on Lundstedt’s advice specialized in procedural law to compete for the Lund chair, which he held from 21 December 1933 until his retirement in 1964. He died in Lund on 5 February 1980.2

Law as fact

Law as Fact (1939; Swedish version Om lagen och staten, 1940) made Olivecrona’s international reputation and was translated into German, Spanish, Italian, and Japanese. Its program was to describe law without any residue of metaphysics: legal rules are “independent imperatives” — not commands issued by anyone, but linguistic forms that work on the minds of citizens through suggestion and ingrained reverence for the constitution. The legal order is in the end organized violence: “what we call the legal order must in reality be organized force.”2 Legal language, on this view, “is not a descriptive language. It is a directive, influential language serving as an instrument of social control” — an instrument “for keeping the peace, as well as for sending men to death on the battlefield.”3

In the second edition of Law as Fact (1971) the rights critique reached its most quoted form: “right” is a “hollow word” that “does not signify anything at all; it does not even refer to something existing in imagination only, as the centaurs.”3 This is sharper than Alf Ross’s reconstruction of “rights” as a presentational tool, and closer to Lundstedt — though Olivecrona came to concede, in Rätt och dom (1960) and Rättsordningen (1966), that rights-terminology performs useful social and technical functions even as it signifies nothing.4

The wartime pamphlets

The darkest chapter is political. In England eller Tyskland (1940) and Europa och Amerika (1941) Olivecrona used Hägerströmian premises to argue for support of Germany: only if the European states subordinated themselves under the strongest power on the continent could anarchy and repeated wars be avoided, and he pleaded for a stable peace order under German hegemony. Johan Strang compares the reasoning, “in a manner closely resembling Carl Schmitt,” to the reasoning that law’s binding force is a superstition and power the only reality.1 Ingemar Hedenius attacked the first pamphlet’s theoretical and poorly reality-adjusted views at the time, and in 1944 Olivecrona himself retreated in Lundagård, with a self-accusation for having failed to treat the belligerents’ ideologies.2 After the war he turned to monetary theory (Penningenhetens problem, 1953) and to a strict general-preventive criminal-law position, and he served as dean of the Lund law faculty from 1951 to 1958.2

Olivecrona in the vault

Scandinavian legal realism assigns Olivecrona two of the school’s canonical formulations — rights as hollow words and law as organized force — and the wartime pamphlets as the episode where the vocabulary’s practical grammar showed what it permitted. The wartime conduct is one jurist’s pamphleteering, not the doctrine’s logical content; but as the vault’s main note argues, a leading realist could reason from power to obedience without conceptual embarrassment, because the category that would have registered the embarrassment — the violated right — had been declared meaningless in advance. Scandinavian Legal Realism and Human Rights documents the episode from the primary pamphlet literature; Value nihilism keeps the meta-ethical doctrine separate from the political use made of it.

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

  2. Kjell Å. Modéer, “K H Karl Olivecrona,” Svenskt biografiskt lexikon band 28, sok.riksarkivet.se/sbl/Artikel/7722. The “organized force” quotation is from Om lagen och staten (1940), p. 125. ↩↩↩↩

  3. Brian Leiter and Michael Sevel, “Naturalism in Legal Philosophy,” Stanford Encyclopedia of Philosophy, plato.stanford.edu/entries/lawphil-naturalism, quoting Olivecrona, Law as Fact (2nd ed. 1971), pp. 183, 253–255. ↩↩

  4. Tore Strömberg, “Karl Olivecrona †,” Svensk Juristtidning 1980, p. 308, svjt.se/svjt/1980/308. ↩

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