Or: The Legal Phenomenon According to Hägerström and its Echoes in the Works of Olivecrona and Lundstedt
The first part of this project explored the historical and cultural context, as well as the rejection of metaphysics, that laid and marked the groundwork of Axel Hägerström’s project to build a jurisprudence in accordance with the demands of a modern science – that is, a jurisprudence shaped by the abstention from using any notions that do not effectively correspond to “facts” (Hägerström, 1953: 1).
Now, this second part of this “Very Scandinavian Saga” seeks to deepen the consequences of eliminating metaphysical notions from legal discourse, especially regarding how Hägerström’s understanding of the legal phenomenon would come to be reflected in the works of Karl Olivecrona and Anders Vilhelm Lundstedt.
The Impact of Metaphysics’ Rejection in Legal Thought: Hägerström and Law as a Conative Impulse
If the positivist representation of “legal duties”, endowed with a kind of objective existence (Olivecrona, 1953: XXII–XXIV) and marked by the fictitious idea that Law is the result of the manifestation of the will of one or more supreme or sovereign body(ies) (Hägerström, 1953: 257–258), is set aside – what would remain as the object of the descriptive labour of the legal sciences?
For Hägerström, the notion of “duty” arises from a conative impulse inherently devoid of valuation, combined – although not to be confused – with the corresponding positive valuation by the individual directed at a given action (1953: 179). In other words: it is a mere “feeling of duty” arising from a command that generates a conative impulse directing individuals’ behaviour toward a certain action, and which presents itself independently of the valuations of the subject receiving it (1953: 130–131), insofar as the commands themselves do not appeal to the valuation system of the individuals to whom they are addressed (1953: 125). To this is added a feeling of rightness or correctness regarding the action to be performed, most of the times derived precisely from the fact that it is inscribed in the command given by a certain authority (1953: 156–158). This is the reason why such a “sense of duty” is translatable into verbal expressions of the indicative type such as “this action, as being right, is my duty.” (1953: 193).
From where, then, would such capacity or authority to command originate in the first place?
According to Hägerström, the entire process of socialization subjects individuals to a mass of orders – especially in the form of “you must not do this!” or “you must observe that!” – and to an environment that primarily reacts to their observance or violation, so as to create and maintain the feeling of the existence of a force or power over them (1953: 153). In more restricted social circles or in more primitive societies, it acts in an individualized manner (1953: 153-154), while in modern societies it generally takes an abstract form, under which “commanding authority loses its individuality, and all that is left is the word of command, presented in a fluctuating image, auditory or visual” (1953: 154). In this sense, it is from social regularity (or habit) in the observance of such abstract commands that the image of the supposed objective existence of “normative systems” and their respective applicability to all their subjects emerges – which, in turn, leads to their use as a system of judgments for individuals to evaluate the correctness or not of their own conduct, as well as that of their respective peers (1953: 155-156).
However, as Hägerström emphasizes, it is certain that different sources of commands may emerge within the same community and, consequently, with them possibly different patterns of expected social regularity. They either combine cooperatively within a single “normative system” endowed with a supposed objective existence or lead to the formation of multiple “normative systems” possessing that same alleged objective existence, sometimes accepted simultaneously by the same individuals from different perspectives (1953: 156). As the Swedish philosopher points out, while in primitive societies there seems to be a greater convergence in the mass of orders and social values to which individuals are subject (authorities commanding political, religious, and social domains acting in relatively coordinated harmony with that social order), with the modernization of society there is a gradual dissolution of the homogeneity of the social fabric, which explains the infiltration of different interests in sustaining a system that is supposedly valid for the entire group (1953: 156).
For Hägerström, interests would thus play in this way, at least in modern normative systems, an essential role in the continued maintenance of the legal phenomenon. While it is exaggerated to speak of the effective and widespread social identification of the direct rightness or correctness of the law, it is certain that, when their interests are protected by the legal system, individuals have a tendency to identify in its norms what would be a “true expression of existing rights and duties, even if the popular sense of justice is dissatisfied with it on other grounds”, especially insofar as such notions themselves would imply the existence of a supposed authority responsible for their protection and restitution in case of violation (1953: 252). In other words: Law as a system of commands aimed at producing conative impulses combined with the respective positive valuation directed at a given action (1953: 179) would be maintained precisely through its effective and systemic observance, necessary for the production of advantages to individuals who especially regard the protection of the “rights” they come to genuinely believe they hold, even if such a system ends up conflicting with their own sense of justice (1953: 153).
From such a perspective, then the legal phenomenon would be akin to a “self-fulfilling prophecy”, insofar – as Hägerström rightly states – as “legislative authorities consistently represent the law as if it consisted in determining the public right of society and the rights of private individuals (…) That is to say, rules of law are represented as correct pronouncements about rights and duties, in the sense in which they are understood in the popular notion of justice” (1953: 251-252); while, at the same time, it is precisely the advantages of the institutional protection of rights offered by their positivisation and possibility of adjudication the “real grounds which incline the individual to regard them as genuine rights, even though they may conflict with his own sense of justice” (1953: 253).
In the end, as the Swedish philosopher would rightly state and summarize:
It is now clear, in view of the account given above, that the state of consciousness of the recipient of a command readily passes over into that which accompanies the idea of duty, and that conversely the latter carries the former with it, under certain circumstances, notwithstanding the fundamental difference between the two. It is only necessary that fictitious or real commanding authorities should assert themselves effectively and unanimously in a society, in order that the expression of command shall be transformed into a supposed real property of a system of conduct and that the idea of duty shall enter. And, if once the abstract idea arises that there is an unconditionally binding norm, there arises a tendency to connect it with commanding authorities which assert themselves effectively and consistently (…) If a tyrant’s ordinances are astutely adapted to the current ideas of rightness, the people very readily come to regard them as authoritative confirmations of real duties.
Olivecrona and the Psychologist Perspective on Law in the 1st First Edition of his Law as Fact: Law as a Set of “Independent Imperatives”
Hägerström’s psychologist perspective would have a direct impact on the work of Karl Olivecrona. This is especially evident in the paradigmatic 1st edition of Olivecrona’s Law as Fact from 1939, precisely regarding a direct and parallel identification of the notion of “legal obligation” as a “psychological feeling,” adopted by the majority of a population toward a “set of independent imperatives” (1939: 51-61).
In this sense, it should be noted that Olivecrona distances himself from his mentor by rejecting the idea that the legal phenomenon is based on commands that generate conative impulses which direct the behaviour of individuals (Hägerström, 1953: 130-131). Olivecrona replaces it with the concept of “independent imperatives”: a substitution justified insofar as, whereas the former would imply a real relationship between the one who commands and the respective receiver, the latter (proper to the notion of norms) functions independently not only from the physical concreteness of the commander (Olivecrona, 1939: 43), but also from the commanded act, materializing – at times – as imperatives directed at the air, since “[i]t does not say to an individual: you shall do this or that, but, abstractly: this action shall be performed, e.g., a murderer shall be condemned to death” (1939: 44-45).
What would sustain the legal edifice would thus be, for Olivecrona, the psychological connection between such “independent imperatives” and the action or omission that subjects perceive as demanded of them (1939: 46). Such psychological connection would create the illusion of the existence of a command underlying the “independent imperatives” embodied in legal norms, leading to a supposed feeling that individuals are mystically subject to a supposedly concrete and real “will of the State”, thereby also feeding the illusion of the alleged objective existence of legal norms as real entities (1939: 47).
In place of a conception of legal norms as entities endowed with objective reality (1939: 47), Olivecrona would argue that law is nothing more than an “immense mass of ideas concerning human behaviour, accumulated during centuries through the contributions of innumerable collaborators“, expressed through imperatives issued by normative authorities and subsequently preserved in books, whose precise ideas are “again and again revived in human minds, accompanied by the imperative expression: ‘This line of conduct shall be taken’ or something else to the same effect” (1939: 48). Legislative activity, by supposedly elevating mere drafts of norms to the realm of reality through procedures carried out in accordance with the Constitution (1939: 51), would produce no more than a mere psychological effect on subjects and the community in general, especially in the sense of inculcating in their minds not only the necessity to observe such “independent imperatives”, but also to pressure their peers to do the same (1939: 52-53).
Such an attitude would derive, according to Olivecrona, from a widespread attitude of institutional reverence, especially evident in Western societies, where “there exists a set of ideas concerning the government of the country, ideas which are conceived as ‘binding’ and implicitly obeyed” (1939: 52-53). They would be combined, meanwhile, with the latent coercive action of State officials also driven by a “psychological feeling” directed toward such “independent imperatives”, which would create the metaphysical illusion that Law possesses an empirical existence independent of the mental dimension precisely of the “psychological feelings” that individuals have toward such a set of “independent imperatives” (1939: 123-136).
It can therefore be seen that despite certain differences, Olivecrona’s proposals in the 1st Edition of his Law as Fact are strictly situated in the wake of the idea developed by Hägerström that the legal sciences can have as their object of investigation only what would be “ideas about duties” (Olivecrona, 1953: XI). In this sense, it is salutary to point out Olivecrona’s explicit defence of the idea that notions such as “duty have no place in the actual world, but only in the imagination of men” (1939: 75), and that their indiscriminate use without awareness of their imaginary character is only a testament that “modern thinking in legal matters is far from being wholly rational” (1939: 114-115).
Lundstedt’s Radicalism and His Campaign for the Removal of Irrational Metaphysical Concepts from Legal Discourse
Nonetheless, it is well known that the most radical author to follow Hägerström’s sceptical and strictly empiricist project would be Anders Vilhelm Lundstedt. While Hägerström attempts to characterize Law as a “self-fulfilling prophecy”, under which “legislative authorities consistently represent the law as if it consisted in determining the public right of society and the rights of private individuals” (Hägerström, 1953: 251-252), and, conversely, it is the institutional protection of rights offered by their positivization and possibility of adjudication that are the “real grounds which incline the individual to regard them as genuine rights” (1953: 253), Lundstedt goes even further. In his radicalism, he directly identifies in “legal ideology” what would be a kind of “vicious circle”, under which norms presuppose the existence of duties/rights to be safeguarded, but, synchronically and in the opposite direction, duties/rights presuppose the existence of norms that establish them (Lundstedt, 1956: 32-43).
For Lundstedt, the evident subjective condition of the notion of “duty” – as a feeling that leads us to the performance or omission of an action (1956: 35-36), functioning as an effective “self-command” (1956: 36) arising from value judgments that make the sentient individual direct their own behaviour in a positive or negative direction depending on what they emotionally consider “right” or “wrong” (1956: 45) – leads to the impossibility of thinking about the idea of “objective duties”, a contradictory notion like the concept of “dry water”, since it would presuppose the objective existence of something that is, by essence, subjective (1956: 35-36).
The impossibility of constructing notions such as “duty” objectively would consequently lead to the impossibility of attributing “truth” or “falsity” to such categories, insofar as they say nothing about “reality” (1956: 45). For that reason, according to Lundstedt, such categories would reveal themselves as not only irrational, but inherently “unscientific,” and therefore absolutely inadequate within the scope of jurisprudential discourse (1956: 42-45).
It should be noted, in this sense, that since for Lundstedt commands cannot “create anything”, except certain concatenations of words in an imperative sense, a reality that if truly understood would inevitably put the entire legal edifice at risk (1956: 40-41); the “legal ideology” resorts to what he calls “the method of justice”, consisting on the attempt to objectify the duty supposedly underlying the commands of normative authorities, in order to create the illusion that individuals are subject to duties allegedly endowed with an effective existence, and that the eventual legal reaction to disobedience to such commands would be “just” or “deserved” (1956: 62-64).
The reason, Lundstedt argues, why such a “method of justice” would remain ingrained in the discourse of legal sciences despite its evidently metaphysical roots, is precisely linked to the insertion of legal scientists within the dominant legal ideology (1956: 123-125). Nevertheless, the author defends the necessity to replace such jurisprudential notion with an image of the legal phenomenon based strictly on experience and observation of facts and reality, that is, based on Law as a system of social evaluations and establishment of causal relations of facts especially in judgment (1956: 126).
Such work, according to Lundstedt, is fundamental for the emergence of a constructive jurisprudence oriented toward “social well-being” (1956: 131-136) – thus overcoming the “absurd shackles of the method of justice” (1956: 53-56) – and would demand precisely the abandonment of the use of concepts derived from “value judgments” in scientific discourse, especially when erroneously characterised as endowed with a supposed objective reality (1956: 47-49). In this sense, notions supposedly fundamental to legal discourse – such as “rule of law,” “wrongfulness,” objective “ought,” “duties,” “guilt,” and “rights” – would, according to Lundstedt, not only be irrational and devoid of any real existence as required for their integration into scientific discourse (1956: 42), but also effectively harmful to genuine efforts of reform, modification, and advancement of Law toward urgent social demands (1956: 40-41).
As Lundstedt explicitly states in the beginning of his Legal Thinking Revised:
In this book I am going to show that all the conceptions of legal ideology are metaphysical (…) The expressions legal rights, duties, obligations, relationships, claims and demands, properly speaking, should not be used, not even as terms or labels [for certain realities]. But I think it will be impossible in the common practice of law (be it outside or before the courts of law) to eradicate them. If legal writers use such a term and if they are afraid thereby to be misunderstood they may place the term in question between quotation marks.
Despite such peremptory proclamation, as Olivecrona later pointed out, not even Lundstedt would manage (in his own work) to maintain consistency in purging such notions from legal discourse, sometimes even attempting to construct “realistic” ways of using terms like “rights” and “duties,” depending on the position of advantage or restriction in which individuals would find themselves (Olivecrona, 1971: 176). In the end, Alf Ross went even further in his criticisms of Lundstedt, notably classifying the radical Swedish jurist as having a “stubborn desire to attribute absurd ideas to others” and a “lack of skill or willingness to understand how others use such expressions to designate certain legal realities”, in what he calls a pathological egocentrism that actively limits and prevents the mutual understanding necessary to sustain the scientific community (Ross, 2019: 225).
Coming Up in the Next Chapter of “A Very Scandinavian Saga”: The First Steps of Ross, the Young Danish (Kantian?) Realist
Having briefly worked through the works of Hägerström, Lundstedt, and Olivecrona, in the next chapter we will move on to explore the early works of Alf Ross – who was justifiably regarded by Hart as
(…) less tortuous and obscure than Hägerström, less naive and professorial than Lundstedt; and richer in illuminating examples and concrete detail, if less urbane, than Olivecrona.
In this sense, we will address in the next text especially Ross’s early Kantian project, materialized in his Theory of Legal Sources of 1926; and, subsequently, his radical “Copernican turn” toward strict legal realism in his Towards a Realistic Jurisprudence of 1946.
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 II)”, FOLBlog, 2025/9/15, https://fol.ius.bg.ac.rs/2025/09/15/a-very-scandinavian-saga-part-ii/