Or: The First Steps of Ross, the Young Danish (Kantian?) Realist
Part I and Part II of this “Very Scandinavian Saga” focused primarily on Axel Hägerström’s concern with building a jurisprudence grounded in a strictly empiricist conception of scientific work (1953: 299), which entailed the necessary expulsion of metaphysics from legal discourse, a task well continued by his disciples Lundstedt and Olivecrona.
This Part III turns to the early works of Alf Ross, 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.
(Hart 1959: 233).
We begin with a brief exploration of his Theory of Legal Sources from 1926, developed still under the clear influence of Hans Kelsen (Ross 2019: 469) – who, as Ross openly proclaims, introduced him to jurisprudence and taught him the duty of consistency (2019: 472).
Then, we will turn to an analysis of his Towards a Realistic Jurisprudence from 1946, in which the author clearly abandons his original Kantian epistemological foundations in favour of an explicit adherence to Hägerström’s philosophical realism – who, as Ross also states, opened his eyes to the emptiness of metaphysical speculations in law and morality (2019: 472).
A Young Kantian Ross: A Brief Analysis of his 1926’s Theory of Legal Sources
Ross’s concern with the scientific method of describing law is already evident in his Theory of Legal Sources (TLS) from 1926, where he directly identifies the question concerning the nature or the concept of law with the very possibility of scientifically constructing legal knowledge – that is, by correlating the reflection on the nature of law with the character of the science that would describe it (Ross 2007: 260).
Notwithstanding, and perhaps surprisingly, Ross defends in his TLS the idea that the only possible method for carrying out such a task would be the transcendental-Kantian method, specifically oriented toward the “pure” knowledge of law (2007: 260). This would entail the elimination from its scope all non-legal materials (most notably politics) whose infiltration into the realm of legal knowledge, especially when taken as its “foundation”, would be classified by Ross as the “tumour of modern legal theory” – even if, at the same time, jurisprudence is seen by the author as a natural result of the tension between disinterested investigative activity, and the instincts and feelings, hopes and fears, inherent to the human being (2007: 261–262).
At the same time, already in his early theoretical formulation, Ross rejects Kelsenian positivism: according to Ross, by grounding itself in a concept of systemic validity – even if hypothetical, thorough, yet inevitably and inescapably always self-founded (2007: 328-329) – the legal system would remain inevitably alienated from the given empirical circumstances (2007: 322), mistakenly ignoring the existence of law-creating sources of an extra-systemic character (2007: 328).
How would it be possible, then, to construct a pure description of the legal phenomenon (that is, one free from non-legal materials) but, at the same time, not alienated from the given empirical circumstances?
According to Ross, such a model of legal science would become viable from the moment the ambiguous absolute opposition between the notions of being and ought, dominant within legal discourse, were abandoned (2007: 328–329) – especially regarding the paradigm of constructing the category of ought in an objective manner and independently of any being, as it is conceived precisely in Kelsen’s work (2007: 330). Thus, Ross builds his TLS upon the idea that it would be possible to describe social phenomena as total systems of an individualizing character – i.e., that human will could be the object of study by means of a generalizing method of a natural-scientific nature, insofar as it tends toward grouping around certain principles and toward a coordinated and reciprocal organization aimed at common points (2007: 336-337).
Under such foundations, law could be conceived not as a chaos of wills, but as an organized collective totality of will and action understood as an effective reality, mutually coordinated and reciprocally subordinated and superordinated (2007: 343). Consequently, scientific knowledge in its regard could precisely occur both deductively and inductively – i.e., top-down or bottom-up, within the framework of the hierarchical normative structure – up to the limits of this established coordination (2007: 344). In this sense, the idea of a fundamental norm is employed in TLS not as a purely logically normative and systemically arbitrary figure as it is in Kelsen’s proposal, but rather as a point of presupposition for the conditions of constitutional change, insofar as that same collective totality of will and action at a given moment would no longer allow the hierarchical identification of an articulated real will through a process of normative abstraction (2007: 430–431).
Ultimately, the legal system conceived and designed by Ross in TLS is endowed with validity because it is inscribed within the scope of the totalizing social will, and at the same time it is insofar inscribed within the scope of totalizing social will because it is allegedly endowed with validity – as a belief that creates its own object (2007: 434). Therefore, its fundamental norm is situated as the presupposition of the conditions for constitutional change, according to that same collective totality of will, as the concrete ultimate limit of the possibility of knowledge of the legal system (2007: 432).
There is thus, just as an early Ross advocated, precisely a “pure” model of legal science that is both free from non-legal materials (2007: 260) and, allegedly, at the same time not alienated from the given empirical circumstances (2007: 322) – i.e. not solely founded on a concept of “systemic validity” always hypothetical, complete, and in a circular and vicious manner, inevitably founded on itself (2007: 328–329).
Ross’ “Empiricist Copernican Turn”: Law as a Concrete Relationship Between Validity and Sanction
When compared to his early TLS of 1926, Towards a Realistic Jurisprudence (TRJ) of 1946 represents a true “Copernican turn” in Ross’s legal-philosophical thought. In TRJ, despite continuing to focus on what would be the apparent dualism between the dimensions of being and ought in law (i.e., between the reality and the validity of the legal phenomenon), Ross ultimately abandons his original Kantian epistemological foundations in favour of his explicit adherence to the philosophical realism of Axel Hägerström (Ross 1961: 12).
In this sense, in his second phase, Ross understands that since neither being – reality – nor ought – validity – can be eliminated from the notion of law, it becomes necessary to overcome such a mistaken dichotomy by precisely demonstrating that these spheres of the legal phenomenon are not mutually exclusive irreducible categories (1961: 88); that is, the question of validity should not be understood as a meta-empirical matter (1961: 12), but rather as a disinterested psycho-physical reaction of respect and conformity to declarations of authority – with the notion of legal competence being nothing more than a mere objectifying rationalization deducible from such disinterested conduct attitudes (2007: 92) -, complemented in turn by a system of compulsion necessary for triggering interested conduct actions in the face of the threat of sanction and consequently enforcing such declarations of authority on occasions when their spontaneous observance does not occur (1961: 93–94).
Thus, in his TRJ, Ross begins to conceive the legal phenomenon as the synchronous and concrete relationship between disinterested psycho-physical reactions, which constitute the sign of recognition of the validity of declarations of authority, combined with interested attitudes taken in the face of fear of sanction (1961: 90). These reactions and attitudes stand in an inductive interaction whereby these elements mutually evoke each other, maintaining the stability of law as an effective system of power that establishes itself as valid – an emotional sentiment that not only reacts upon such power to reinforce it, but also limits it with an ideology of valid law as thus established (1961: 94).
In general, one can easily point that in such a notion of law as the stable inductive relationship between disinterested psycho-physical reactions of recognition of authority and interested attitudes taken in the face of fear of sanction (1961: 90), the problem of the sources of law presents itself in a considerably different way from that inscribed within the then-dominant legal discourse (1961: 155). First, there is a dilution of the absolute opposition between the notions of being and ought, particularly concerning a dominant construction of the category of ought in an objective manner and independently of any being, as precisely denounced and defended by Ross in his TLS (2007: 328–330). Second, in TRJ, it is possible to see the effective distancing from the duality of being and ought within the legal structure, united under a practice that concomitantly reflects and creates itself (1961: 108–109), since the process of motivating the action constitutive of legal reality (1961: 157) remains exactly based on an idea of continuous relation with the exercise of power regarded as valid or legitimate – a validation that, at the same time and in the opposite direction, maintains and constrains that very power (1961: 162-163).
Coming Up Next: Like a Rolling Stone – The Ongoing Metamorphosis of Ross in Tû-Tû, On Law and Justice, and His Eventual Abandonment of Logical Empiricism
If in TRJ Ross undergoes a complete empiricist metamorphosis compared to his earlier TLS, this would not be his final radical change.
In Part IV of this “Very Scandinavian Saga”, we will explore his gradual departure from the radical empiricist scepticism originally proposed by Hägerström, beginning with his Tû-tû of 1951, passing through his paradigmatic work On Law and Justice, up to his effective abandonment of logical empiricism expressed in a letter to Eugenio Bulygin in 1966, amplified in his Directives and Norms of 1968, and effectively concretized in On Self-Reference and a Puzzle in Constitutional Law of 1969.
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 III)”, FOLBlog, 2025/11/17, https://fol.ius.bg.ac.rs/2025/11/17/a-very-scandinavian-saga-part-iii/