Field Notes

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Legal Realisms and the Dilemma of the Relationship of Contemporary Law and Politics

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Mauro Zamboni’s 2005 article in Scandinavian Studies in Law vol. 48 (Perspectives on Jurisprudence: Essays in Honor of Jes Bjarup), pp. 583–606 (saved copy), compares how American and Scandinavian legal realism model the law–politics relationship. Against natural law’s “law is politics” and Kelsen’s “either law or politics,” Zamboni reads both realisms as depicting two intersecting phenomena: the law has a value-detached hard core — a stimulus–response machine for regulating the use of force — that is nonetheless only partially rigid toward politics, because validity is empirically conditioned.

The article is the vault’s cleanest secondary statement of the realist validity criterion. Summarizing Ross (On Law and Justice, pp. 34–38), Zamboni writes that a legal 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,” with the additional requirement that the majority also feel the norm as “socially binding.” He records Hart’s 1959 objection that the subjective “feeling of being bound” blurs the distinction between legal and moral concepts, and notes in passing that Lundstedt’s advice to align legislation with the common sense of justice “crosses the bridge” back toward natural law.

Its footnote 61 supplies primary evidence for the wartime episode this wiki previously knew only through Strang: “for a short period, this separation of values and the law brought Olivecrona to publicly support the full validity of the Nazi regime as a legal order,” citing Olivecrona’s pamphlet England oder Deutschland? (Lübeck, 1941).

Zamboni is a sympathetic reader (Stockholm jurisprudence, writing in a Bjarup festschrift), so the article is best used for its exposition of the realists’ position and for the Olivecrona footnote, not as an adversarial appraisal.

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