Or: Hägerström’s War on Legal on Metaphysics (or Magic!)
Hans Kelsen, in the first edition of his Pure Theory of Law from 1934, recounts that, with the victory of the liberal bourgeoisie in the 19th century, an unprecedented cycle of immeasurable scientific progress in the field of natural sciences would begin, which, combined with the rupture of the previously dominant religious ideology, would be reflected in legal sciences through the abandonment of natural law ideas in favour of a positivist legal perspective (Kelsen, 2002: 21). Nevertheless, especially in the context of the social upheavals of the post-First World War period, the philosophical world would witness an actual return of traditional philosophy to pre-Kantian metaphysical conceptions, accompanied by a revival of natural law ideas within the context of legal sciences – a regression which Kelsen compares to what would be the paradoxical involution of the Enlightenment bourgeoisie to the level of ideologies defended by the feudal aristocracy, which had been precisely overcome by that same bourgeoisie centuries earlier (2002: 25–26).
It would be, therefore, precisely in this context of regression of the scientific discourse to metaphysical conceptions, that the jurisprudential movement of Scandinavian Legal Realism or the Uppsala Realist School would emerge, formed by notable academics such as Axel Hägerström, Anders Vilhelm Lundstedt, Karl Olivecrona, and, tangentially, Alf Ross; a group once well and illustratively characterized by J. W. Harris (1981) as:
They were perceived by others, and sometimes perceived themselves, as wild prophetic figures riding in from the hills with a message for legal philosophers and legal practitioners. The message was that most discourse within and about law is based on illusions. They came to expose these illusions in the name of «reality», «truth» or «science». (…) In Scandinavia, a civil law jurisdiction, law-talk focuses on concepts and propositions contained in codes and statutes; so the sceptic demolition gang set to work upon these. They debunked nouns like «right» and «duty»; and wafted away as sheer metaphysics adjectives like «valid» or «binding».
It is, therefore, with the aim of unravelling the war that such “Scandinavian prophetic figures” waged against the scientific regression and the proliferation of metaphysics in legal sciences; that this “Very Scandinavian Saga” aims to explore the context in which it emerged, the main proposals of its authors, and the eventual divisions and ruptures that occurred within the Uppsala School of Legal Realism.
In a concatenated, multi-post endeavour, I invite you here to very briefly explore some of the epic messages that Axel Hägerström, Anders Vilhelm Lundstedt, Karl Olivecrona, and Alf Ross tried to send us “in the name of ‘reality,’ ‘truth,’ or ‘science.’”.
Let us start from the beginning.
“Moreover, I believe metaphysics should be abolished”: Axel Hägerström and the Infiltration of “Magical Thinking” into Law
Full professor of philosophy at Uppsala University from 1911 to 1933, and a foundational figure of the Scandinavian Legal Realism tradition, Axel Hägerström had as his central research interest the problematics of knowledge construction and the perception of reality; a journey which, ironically, he would begin with a dive into Kantian subjectivism, eventually replaced by the pursuit of proposing an objectivist theory of knowledge, built upon the motto “praeterea censeo metaphysicam esse delendam” or “moreover, I think that metaphysics ought to be abolished” (Olivecrona, 1953: X–XI).
It is, therefore, precisely by adopting a strictly empiricist conception of scientific work that Hägerström came to defend the idea that modern science and, consequently, modern jurisprudence, just like the physical and chemical sciences, have solely the function of “establishing facts within a certain region of knowledge, reaching general principles by induction, and making deductive inferences from inductively established results” (Hägerström, 1953: 299), and that, as a consequence, scientists and jurists must abstain from using any notions that do not effectively correspond to “facts” (1953: 1) or that prove contradictory, since under such circumstances their judgments would be nothing more than a “mere concatenation of words devoid of meaning” (1953: 299–300). As Olivecrona later pointed out, such a conception led Hägerström to conclude that, faced with the impossibility of a “science of duties”, legal sciences can have as their object of investigation only what would be “ideas about duties” (Olivecrona, 1953: XI).
Under such theoretical platforms, Hägerström denounced what would be the infiltration of a “magical rationality” in ancient and contemporary legal practice (Olivecrona, 1953: XVI–XVIII): based on the definition of “magic” offered by Sir James George Frazer in his classic anthropological work The Golden Bough: A Study in Magic and Religion, understood as the belief in the possibility of manipulating, through the performance of certain rituals, the natural order of the reality surrounding us (Frazer, 1922: 931). Hägerström points out that classical legal notions such as ius, dominium, or possessio would be nothing more than “magical concepts,” originating from ancient beliefs in mysterious powers, manipulable through specific words or gestures (Olivecrona, 1953: XIII–XIV). However, they are devoid of any foundation in empirical reality, in the sense that the power supposedly accompanying them would be nothing more than the product of a communally dominant ideology, in the Roman case primarily religious in nature (1953: XVIII–XXI), from which the notion of “legal duty” would spread (Hägerström, 1953: 8).
Legal norms, in this sense, would be nothing more than commands that, when issued in a social context where their widespread observance is verified, transmute into a diffuse system of regulation of the conduct of the individuals inserted within it, especially insofar as they come to be identified with what is communally valued as “just” or “correct” (1953: 192–201), thus necessarily shaping for the future the very content of the “legal duty” and the respective impulsive conduct of its members (1953: 165–167).
Such a strictly empiricist conception of scientific activity entails a direct clash even with the positivist perspective of the legal phenomenon, whose greatest exponents until then were Jeremy Bentham and John Austin.
Axel Hägerström and Legal Positivism: Can Law Be the Product of a Sovereign’s Will?
Central to Hägerström’s criticisms is the idea that legal positivism not only preserves the suggestive representation of “legal duties” as concepts endowed with a kind of objective existence (Olivecrona, 1953: XXII–XXIV) – a mistaken conception, albeit structured through a discursive reduction of supposed factual relations established from prior legislative commands (Hägerström, 1953: 6–8) – but also that, in attempting to oppose the mythical idea of the existence of certain natural rights independent and prior to the existence of the State (1953: 17–18), it takes refuge in the no less fictitious idea that Law is the product of the manifestation of the will of one or more supreme or sovereign bodies (1953: 257–258).
In this sense, if the works of Jeremy Bentham and John Austin are founded on the conception of “Law as the manifestation of the will of a de facto authority” (1953: 28–29) (that is, as the “real/empirical” expression of a will, directed at one or a class of individuals, issued or adopted by a sovereign (Bentham, 1970: 1), who is in turn characterized as any person or group toward whom a preferential disposition of obedience by the majority of the political community is observed (1970: 18–19), Hägerström (1953: 11–12) emphatically and justifiably questions:
(1) What would it mean to say that Law is the manifestation of the will of a sovereign, when even in a monarchical state most legal norms would have no direct connection to the personal will of the contemporary ruler?
(2) In parliamentary states, where legislative decisions are rarely taken unanimously—if anything, they are recurrently subject to contestation by the representative body itself, especially in cases where a portion of it is organized as an institutionalized political opposition—would it be possible to affirm the existence of or find an origin point for the alleged “sovereign will” constitutive of its legal system?
Regarding the first question, both Bentham and Austin seem to be aware of such a potential inherent fragility in the conception of Law as the product of the manifestation of the “will” of an individual sovereign, especially insofar as they find themselves compelled to employ “theories of tacit adoption,” whether to explain the systemic persistence of norms originating from the manifestation of the will of sovereigns no longer reigning (Bentham, 1970: 21–22), or to attempt to justify the normativity of “indirect commands” coming from delegated authorities (1970: 22–28). An all cases, though, they are relying on a palpable fiction, as Hägerström would characterize it, which not only operates from a necessary abstraction and idealization of the figure of the sovereign, removing any concreteness or effective relation to their own personal will (Hägerström, 1953: 11).
Moreover, such fragilities, unsurprisingly, would become even more salient when confronted with Hägerström’s second question, in which the figure of a unitary sovereign is replaced by the idea of a “collective sovereign” as the alleged ultimate source of Law in parliamentary states. As the Swedish philosopher points out, even if (however conceptually unlikely) we assume it were possible to identify in the case of the “individual sovereign” a kind of stable and unchanging will underlying legal norms (1953: 106–108), supposedly constitutive of the content and the very positive character of the legal phenomenon (1953: 17–18), the task of concretely deciphering it – especially under circumstances where it would be the product of the “corporate action” of a “collective sovereign” (Austin, 1995: 126–131) – would materialize into an actual Sisyphean task (Hägerström, 1953: 75).
In this sense, on the one hand, Hägerström recognizes the possibility, through historical-documentary investigations, of exploring the opinions expressed by certain legislators or committees on specific issues (1953: 75–76). On the other hand, however, the Swedish philosopher points out that no matter how much influence certain individuals or factions may have over the entirety of the legislative body, the manifestations of collegial bodies are often the product of compromises made between parties with distinct – if not actually opposing – ideas and intentions (1953: 76), potentially including also the acquiescence of members lacking any opinion on the projects under discussion or regarding their possible implications (1953: 75).
Ultimately, according to Hägerström, it is precisely in the face of the recurring absence of a convergent, concrete, unanimous will among legislators – or often even the majority of the legislative body – or the organs participating in the legislative process, that the legal-constitutional discourse (notably of positivist origin) finds itself compelled to cling to the fictitious anthropomorphization of the “collective sovereign,” attributing a kind of a “will of its own” (1953: 37–38) to parliament (1953: 11–13) or to the conglomerate of legislative entities. It is a “forced fiction” (Kelsen, 1987: 159–160) that – even an early Hans Kelsen would eventually recognize – is based on a supposed communal or social psychologism (1987: 151), the result of the fatal methodological error of attempting to attribute to the empirical world entities that do not belong to the sphere of being (1987: 154).
Coming Up Next: The Legal Phenomenon According to Hägerström and its Echoes in the Works of Olivecrona and Lundstedt
It might be true, as Olivecrona points out, that especially due to its linguistic limitations and the heterodoxy of his works the impact and general acceptance of Hägerström’s work was relatively limited (Olivecrona, 1953: XV–XVI) – later, H.L.A. Hart would precisely characterise it as “tortuous and obscure” (Hart, 1959: 233) because of its ostensible use of poorly analytical terms such as “mystical bonds” and “magical powers” in the description of the legal phenomenon (Hart, 1983: 13). However, Hägerström bold proposal was fundamental for the emergence of remarkable and prolific authors such as Anders Vilhelm Lundstedt, Karl Olivecrona, and Alf Ross.
The next chapter of “A Very Scandinavian Saga” proposes to precisely explore how Hägerström came to conceive the legal phenomenon from a strictly empirical scientific perspective, as well as how his endorsements and assumptions – in particular, his psychologism and skepticism – would shape the works of Lundstedt and Olivecrona.
This work was realized under a PhD Scholarship granted by the Lisbon Public Law Research Centre, funded by Portuguese national funds through the FCT – Fundação para a Ciência e a Tecnologia de Portugal.
My work on this blogpost results from efforts conducted within the Horizon Twinning project “Advancing Cooperation on The Foundations of Law – ALF” (project no. 101079177). This project is financed by the European Union.
SUGGESTED CITATION:Bueno Assalin, Bruno: “A Very Scandinavian Saga (Part I)”, FOLBlog, 2025/7/22, https://fol.ius.bg.ac.rs/2025/07/22/a-very-scandinavian-saga-part-i/