Field Notes

source

Scandinavian Legal Realism and Human Rights

Axel Hägerström, Alf Ross and the Persistent Attack on Natural Law

StatusStableUpdatedStands on1 sourceSupportsnotes

Johan Strang’s 2018 article in the Nordic Journal of Human Rights (saved copy of the author manuscript) examines what the Scandinavian legal realists actually said about human rights, against two flattened historiographies: one celebrating Scandinavian legal realism as the legal philosophy of the democratic welfare state, one scorning it as the source of a state-apologetic, rights-skeptical Nordic political culture.

The article documents, from primary texts:

  • Axel Hägerström’s 1913 essay “Om sociala vidskepelser” treating the rights of man as a “social superstition” and an incomplete enlightenment, and his 1931 essay arguing that absolute rights-talk turns interest conflicts into religious wars;
  • Vilhelm Lundstedt’s dismissal of rights-talk as meaningless “chatter of a parrot” alongside his practical defense of wronged individuals on public-welfare rather than rights grounds;
  • Karl Olivecrona’s wartime use of Hägerström to justify support for Germany, arguing European states should subordinate themselves under the strongest power on the continent, in a manner Strang compares to Carl Schmitt;
  • the natural-law counterattack, including bishop Eyvind Berggrav’s 1945 charge that modern jurisprudence “had been Hitler’s prophet” and concluded that might is right;
  • Alf Ross’s post-war rehabilitation of “rights” as a presentational tool without semantic reference, his skepticism toward the UDHR and judicial review, and his formal, popular-sovereignty conception of democracy in Hvorfor demokrati? (1946);
  • the later reversal: Jacob Sundberg’s 1980s celebration of Swedish ECtHR losses as defeats for the Hägerströmian tradition, and the 1990s association of legal realism with the welfare state’s coercive episodes such as forced sterilizations.

The saved copy is the accepted manuscript; pagination differs from the published version (36(3): 202–218). Strang’s explicit methodological caution — that the realists articulated positions present in Scandinavian debates at least as much as they influenced them — is itself an important limitation on causal claims built from this material.

Built on 1 source (1 external).

Working out connections…