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Scandinavian legal realism

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Scandinavian legal realism was a jurisprudential movement, founded on Axel Hägerström’s Uppsala philosophy and developed by the Swedish jurists Vilhelm Lundstedt and Karl Olivecrona and the Dane Alf Ross, that dominated Nordic legal and political discourse through the middle of the twentieth century. Its program was to purge law of metaphysics and reconstruct legal science as an empirical inquiry into law as a social and psychological fact.1

The popular summary that the school taught “rights do not exist, and might makes right” is half right and half wrong in instructive ways. The first half understates the doctrine: the realists held not merely that rights fail to exist but that rights-talk is meaningless — a survival of word magic, not a false description. The second half inverts the doctrine: a theory on which “justified” has no cognitive content cannot teach that power justifies power. It teaches that nothing justifies anything.

The doctrine’s consequences for Swedish criminal procedure are argued in Realist foundations of Swedish rättssäkerhet deficits, and the causal question that argument leaves open belongs to Did legal realism weaken Swedish rights protection.

What the doctrine actually claims

Three connected theses define the school.

Value nihilism. Hägerström’s value theory holds that value judgments are neither true nor false, because nothing in the only knowable world — the spatio-temporal world of causal regularities — corresponds to a value. There can be a science of morals (an empirical study of feelings and volitions) but never a scientific morals. Normative statements therefore have no place in legal science; they belong to politics.

Rights as hollow words. Hägerström analyzed the subjective right as belief in a supernatural power over things and persons, a survival of primitive word magic. Lundstedt drew the conclusion in its sharpest form: rights-talk is as meaningless “as the chatter of a parrot,” and there are no rights beyond the political. Olivecrona’s mature position in Law as Fact (2nd ed. 1971) was that “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.”2 Ross softened this into a technical point: “rights” has no semantic reference, but functions legitimately as a tool of presentation connecting operative facts to legal consequences — and he mocked Lundstedt’s refusal to use the word as the zeal of a “Swedish missionary.”3

Law as organized force. If rights and binding force are fictions, what remains is machinery. The realists described law as a system of behavioral regularities maintained by organized social coercion, working on citizens through psychological channels: rules as “independent imperatives” whose suggestive force depends ultimately on reverence for the constitution. Olivecrona concluded that legal language “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.”2 Ross’s jurist is correspondingly a “rational technician” at the hands of the political decision-makers.3

Validity as social efficacy. The school’s replacement for Kelsen’s Basic Norm is an empirical criterion of legal validity. In Zamboni’s summary of Ross, a norm “is considered valid… as soon as it is ‘in force’: norms and concepts are legal as soon as the majority of the community of addressees observes them,” supplemented by the requirement that the majority also feel the norm as “socially binding.”4 Two features of this criterion matter for the “might makes right” reading. First, it is the addressees’ conduct, not the sovereign’s strength, that validates: a decree the community ignores is not law on this theory, so power alone is neither sufficient nor necessary. Efficacy-based validity is also not a realist peculiarity — Austin’s habit of obedience, Kelsen’s efficacy requirement, and Hart’s practice-based rule of recognition all belong to the same positivist family. Second, the criterion cannot distinguish observance produced by terror from observance produced by acceptance. Ross’s “feeling of being bound” was the attempted repair, and Hart’s 1959 critique was precisely that this subjective component blurs law and morals.4 Combined with value nihilism, the result is a theory that can certify a legal order but cannot condemn it: “valid but evil” reports a feeling, not a legal fact.

The common-sense-of-justice detour. Lundstedt’s own advice to lawmakers — attend to the common sense of justice (rättskänsla), since law is observed by the majority precisely when it does not offend that sense — looks like a concession to rightness, and Zamboni notes that it “crosses the bridge” back toward natural law.4 Inside the framework it is prudence, not principle: the common sense of justice is a social-psychological fact about what majorities will obey, and under value nihilism it can be nothing more. The structure is majoritarian — law’s efficacy is anchored in prevailing sentiment — but the direction of constraint runs from the majority to the lawmaker, not from the strong to the weak. What the framework cannot house is the minority. When majority sentiment itself endorses persecution, the theory can register the fact but cannot condemn it, because no evaluative standpoint remains. The realists accepted this as the price of disarming fanaticism — Hägerström’s 1931 argument that absolute justice-talk turns interest conflicts into religious wars — while the rights tradition answers that minorities need enforceable vetoes precisely because majorities can be the fanatics.

The “might makes right” charge in its contemporary form

The accusation is not a modern caricature; it was made at the time, in detail. After Hägerström’s death in 1939, Swedish newspaper pieces titled “Prof Hägerström och världskrisen” and “Hitler och Hägerström” argued that value nihilism had left a spiritual void now exploited by destructive forces armed with military power. The Social Democratic MP Anders Orne called the Uppsala philosophy “a theoretical foundation for the advance of the modern totalitarian states.” Norwegian bishop Eyvind Berggrav, a resistance figurehead, wrote in 1945 that jurisprudence treating law as a physical phenomenon “had been Hitler’s prophet”: failing to recognize a divine element in law, it was forced into the conclusion that might is right.3 The Scandinavian Value Nihilists reconstructs the debate and the three defenses: Ingemar Hedenius argued that a descriptive theory cannot found any morality, destructive ones included; Tingsten and Ross grounded democracy in the sociological fact of shared values and majoritarian procedure, not in metaphysical rights.

The episode that comes closest to vindicating the charge is not philosophical but political. Strang documents that Olivecrona used Hägerström during the Second World War to justify support for Germany, arguing that only if the European states subordinated themselves under the strongest power on the continent could anarchy and repeated wars be avoided — “in a manner closely resembling Carl Schmitt.”3 Zamboni states the episode in its hardest form: the separation of values and law “brought Olivecrona to publicly support the full validity of the Nazi regime as a legal order,” in the pamphlet England oder Deutschland? (Lübeck, 1941).4 One jurist’s wartime pamphleteering is not a doctrine’s logical content, but it shows what the vocabulary permitted: a leading realist could certify the worst legal order in European history as fully valid and reason from power to obedience without any conceptual embarrassment, because the category that would have registered the embarrassment — the violated right — had been declared meaningless in advance.

Two things can be separated in assessing the gloss. As an account of the school’s normative teaching, the charge is false: the realists denied that might makes anything right, and several were sincere democrats and social reformers who expected their anti-metaphysics to produce a more forgiving and humane politics. As an account of the school’s validity concept, it misidentifies the mechanism: what validates law is the addressees’ observance, not the ruler’s might, and every major positivism shares that shape.

What critics press instead is the combination — an efficacy criterion that cannot filter terror-manufactured compliance, joined to a value nihilism that cannot condemn what the criterion certifies. That is the form in which the charge survives Strang’s reconstruction, and it is the premise Realist foundations of Swedish rättssäkerhet deficits argues from.

The circularity problem and the practice account of rights

Two internal weaknesses sharpen the critique further.

Circularity. The validity criterion needs a population that feels norms as binding, while the doctrine declares the moral vocabulary that historically produced such feelings — rights, duties, justice — meaningless. Ross’s attempted distinction locates legal bindingness in a “formal legal consciousness” directed at the constitution (the addressee’s “I ought”), as opposed to the “material” moral consciousness (“I must”).4 But the theory cannot say what should sustain reverence for the constitution, and in the actual Scandinavian populations that reverence had been cultivated by the rights-and-justice culture the school was discrediting. A framework whose legitimacy resource is a felt sense of justice it holds to be superstition lives on inherited capital it cannot replenish.

The practice account. The deeper objection is that the realists’ argument rests on a referential theory of meaning: a word signifies only if it denotes a spatio-temporal entity, so a right must be either an observable fact or a supernatural power. That is a false dichotomy. Rights can be positions within a rule-governed practice — things that exist as institutional facts, the way money does. Olivecrona’s own monetary-unit analogy proves too much: “dollar” denotes nothing in the physical world either, yet it is not a hollow word, because its meaning is its function within a practice.5 Hart’s reply to the school was the same in general form: there are non-factual, non-predictive uses of language inseparable from following rules, and rights-talk belongs to them; Raz restates it as rights giving reasons for action without any strange entities mediating.6 The realists’ historical targets really were metaphysical — Grotius’s right as qualitas moralis, Pufendorf’s faculties, Boström’s rational idealism, the German will-theory — so the attack was no strawman against its contemporaries. But as a general case against rights-talk it overreaches, because it never engages the account on which rights are constructed rather than discovered.

The constructivist middle. That constructed account also answers the school’s political worry. On it, rights exist because a community decides they should — specifically as devices against the abuse of power, Dworkin’s “trumps” against collective goals — and their artificiality is the point, not the refutation. Everything true in the realist ontology survives: there are no rights in nature. But neither is there a constitution in nature, or a krona; the question is what a society should build. Post-1945 Europe answered with Jan-Werner Müller’s “constrained democracy”: constructed, entrenched rights placed beyond majority reach precisely because majorities can be fanatics.3 Ross’s own rehabilitation of “rights” as a presentational tool moves toward the same middle ground without the semantics to state it. The critical conclusion this line supports is that anti-metaphysics and constructed rights are compatible, and that the school treated the first as excluding the second.

Whatever the doctrine’s logical content, its institutional influence in Sweden is documented along several identifiable channels.

Procedural law as social engineering. Two Visions of Time reports, citing proceduralist Thomas Andersson, that few disciplines were more profoundly affected by Hägerström than procedural law. Per Olof Ekelöf rejected individual-rights protection as the function of civil procedure; judgments should instead realize the purposes of substantive legislation, steering behavior (handlingsdirigering) so that rules are internalized and followed. Courts appear as instruments of the legislature, loyal to the political branch: preparatory works consulted by default, purposes pursued openly, analogy used even in tax and criminal law. Hellner and Stenlund call the resulting formation the rättsstat paradigm — a welfare state shaped by law and administration — and date its gradual displacement by a rights-and-courts “rule of law” paradigm from the 1970s to the 2020s.

Legislative supremacy and rights skepticism. An Unlikely Rights Revolution describes the resulting politico-legal culture: parliamentary supremacy, deferential judiciaries, broad welfare entitlements but few justiciable rights, and a jurisprudence in which “litigants appealing to fundamental rights in court would hardly be taken seriously” because generations of jurists had been trained that natural-rights talk is metaphysical nonsense. Sweden incorporated the ECHR only in 1995, and judicial review of legislation remained weak and contested; Nergelius’s critical analysis of Swedish judicial review documents the doctrinal legacy.7 When Sweden began losing expropriation cases in Strasbourg in the early 1980s, the conservative professor Jacob Sundberg celebrated the losses as defeats for the Hägerströmian tradition, which he described as having been in “secret marriage” with Social Democracy since the 1920s and acutely dangerous to the Swedish Rechtsstaat.3

The 1990s reckoning. As European human-rights norms became domestically relevant, the darker episodes of the welfare state — forced sterilizations above all — were publicly associated with the state-apologetic philosophy of legal realism and its blindness, if not contempt, for human rights. Strang’s own verdict is balanced: the realists were sometimes excessively cynical and failed to grasp the progressive significance of rights rhetoric, but their warnings about absolutist rights-talk concealing partisan interests, and about the fragility of rights in the face of crude power politics, retain force.3

Assessing the school’s influence

Three cautions constrain any claim built from those channels.

Influence is under-determined. Strang warns that the realists may have articulated positions already present in Scandinavian political culture at least as much as they influenced them, and that the standard story — no Scandinavian Radbruch-style conversion to natural law after 1945 because Scandinavia escaped the worst — is “seldom substantiated with historical evidence.”3 Sweden’s weak constitutional review tradition predates the school, since the 1809 constitution never built strong review.

The comparative record cuts against simple causation. Denmark absorbed Ross’s realism yet kept a functioning if restrained rights order, and Norway combined the same philosophical climate with Europe’s oldest judicial-review practice and an internal natural-law opposition in Frede Castberg. Ran Hirschl’s “Nordic counter-narrative” observes that the Nordic states achieved top-tier democracy and human-development outcomes for most of the twentieth century without strong judicial review, which at minimum complicates any claim that rights skepticism produced practical lawlessness.8

The school is also not one object. Strang’s earlier study distinguishes two generations: Lundstedt and Olivecrona aimed at transforming law into a vehicle for political and social reform, while Ross and Hedenius worked substantially to take the edge off that radicalism.9 An influence claim therefore has to name which generation and which doctrine it runs through.

Within those limits, Realist foundations of Swedish rättssäkerhet deficits argues that the doctrine underwrites several features of Swedish criminal procedure without having caused them, while Did legal realism weaken Swedish rights protection keeps the causal claim open and lists the evidence that would decide it.

Reading path

The people, in the order the doctrine passed through them: Axel Hägerström supplied the philosophy and Value nihilism its central thesis; Vilhelm Lundstedt drew the sharpest conclusions from it; Karl Olivecrona wrote the most internationally read statement and the most compromising wartime pamphlet; Alf Ross rebuilt what the first generation had demolished. Ingemar Hedenius and Herbert Tingsten answered the totalitarianism charge, and Jacob Sundberg led the conservative counterattack from the 1980s.

Into Swedish law: Per Olof Ekelöf carried the philosophy into procedural doctrine, and Rättssäkerhet still carries what the era did to it. The institutional consequences are argued in Realist foundations of Swedish rättssäkerhet deficits and tested in Rättssäkerhet in Swedish criminal cases.

The scholarship behind the account above: Scandinavian Legal Realism and Human Rights and The Scandinavian Value Nihilists for Strang’s reconstructions, Zamboni on legal realisms and politics for the validity concept, Two Visions of Time for the procedural paradigm shift, An Unlikely Rights Revolution for the cultural effect on litigation, Något om Ekelöfs teleologiska metod for the method’s defense, and Hägerström och juridiken for why influence claims need care.

  1. Jes Bjarup, “The Philosophy of Scandinavian Legal Realism,” Ratio Juris 18(1) 2005, doi:10.1111/j.1467-9337.2005.00282.x. Bjarup’s central criticism is that the naturalistic approach “leaves no room for the normativity of the law and for legal knowledge in terms of reasons for belief and action.” ↩

  2. 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. ↩↩

  3. Scandinavian Legal Realism and Human Rights (Johan Strang, Nordic Journal of Human Rights 36(3) 2018, doi:10.1080/18918131.2018.1522757); saved manuscript. ↩↩↩↩↩↩↩↩

  4. Mauro Zamboni, Zamboni on legal realisms and politics, Scandinavian Studies in Law 48 (2005), pp. 583–606; saved copy, validity discussion at pp. 597–599 and the Olivecrona footnote 61 at p. 597. ↩↩↩↩↩

  5. Martin P. Golding, “Rights, Performatives, and Promises in Karl Olivecrona’s Legal Theory,” Ratio Juris 18(1) 2005, 16–29, Duke Law repository. Consulted via search extraction; the repository blocks direct download, so no local artifact was saved. ↩

  6. Brian H. Bix, “Ross and Olivecrona on Rights,” Australian Journal of Legal Philosophy 34 (2009), 103–119, journal PDF. Consulted via search extraction; the site blocks direct download, so no local artifact was saved. ↩

  7. Joakim Nergelius, “Judicial Review in Swedish Law — A Critical Analysis,” Nordic Journal of Human Rights 27(2) 2009. Cited from the secondary literature; the full text was not accessible during this research pass. ↩

  8. Ran Hirschl, “The Nordic Counter-Narrative: Democracy, Human Development, and Judicial Review,” International Journal of Constitutional Law 9(2) 2011, 449–469. ↩

  9. Johan Strang, “Two Generations of Scandinavian Legal Realists,” Retfærd 32 (2009) nr. 1/124, pp. 62–77. Read from the published abstract and opening; the Helsinki repository copy blocked automated retrieval, so no local artifact was saved. ↩

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