Scandinavian Psychological Theory of Law

Savenkov Dmitry Aleksandrovich PhD in Law Docent, the department of Theory of State and Law, Vladimir Kikot Moscow University of the Ministry of Internal Affairs of Russia 117997, Moscow, Akademika Volgina str., 12. dmitryasavenkov@yandex.ru Other publications by this author

Among the numerous areas of development of psychological problems in the concept of law and its interpretations from a psychological point of view, often accompanied by the construction of a disciplinary form of jurisprudence as an empirical or realistic doctrine of law, a very definite place is occupied by the views of Scandinavian authors – philosophers and jurists, who proposed as the name of their legal representations their characterization as a kind of national legal realism – Scandinavian school of legal realism ^{[4, 5, 11, 15]}. There is no doubt that this is a completely independent phenomenon in the history of legal thought of the twentieth and the beginning of the XXI century. And it quite rightly deserves the attention of researchers, as it is associated with attempts to conceptualize legal issues. The definition of "conceptual", however, is used in this case only to characterize the views of realists as aimed at solving fundamental issues of legal epistemology, ontology and axiology. At the same time, it should be borne in mind that one of the main slogans of this group of scientists was the proclamation of the struggle against metaphysics and its manifestations, which often led to the denial of conceptuality as such in the field of, in particular, jurisprudence. According to A. Hagerstrem, jurisprudence does not reach the level of a proper science, since it is based not on impeccable theoretical concepts and, accordingly, the possibility of "objective cognition" ^{[8, S. 3]}, which the Scandinavian scientist insisted on achieving, but only on the totality, or rather just an ordered illumination of a complex of feelings and associations. They are, according to the belief of A. Hagerstrem, the actual law ^{[7, S. 26, 34]}.     

The question of whether the theoretically formulated views of several Scandinavian authors constitute a particular scientific school or perhaps they demonstrate only a regional version of the interpretation of the pan-European topical issues of their time remains open. In any case, there are several of the most prominent and authoritative representatives of this regional group, whose views, including, not least, thanks to translations into more accessible European languages – German and English, have become the subject of the interests of researchers from other countries.

The English philosopher of law G. Hart, noting the similarities of the English and Scandinavian theory of law, wrote that the commonality of both is manifested in the perception of law as something created by man and created for people, pronounced hostility or indifference to the doctrines of natural law, at least in a scholastic form, in a general disbelief in the ability of philosophical systems to shed light on what is the right or what it should be. However, at the same time, according to this scientist, although the Scandinavian version of the theory of law, as well as the English one, is skeptical in purpose and empirical in method, it nevertheless differs significantly from the English one in that it is almost a philosophical system. First of all, Hart drew attention to the fact that the Scandinavian theory of law in the form in which it developed in the works of A. Hagerstrem and his followers in Sweden and Denmark, sought first of all to show that the concepts generally accepted as the main parts of the structure of law, such as rights, duties, transfer of rights and validity, partially they consist of superstitious beliefs, "myths", "fictions", "magic" or confusion in their relationship ^[11].    

The theoretical or heuristic potential of the views of the Scandinavian group of legal realists, as well as the empirical trend in jurisprudence in general, was much less noticeable than their methodological influence. Among the most recognized authors of this direction or group are the ancestor A. Hagerstrem, K. Olivecrona, V. Lundstedt and A. Ross ^[1]. There are other representatives of the typologically Scandinavian approach to the interpretation of legal issues, but they are much less clearly represented by their works in the general context of the legal-realistic understanding of law. The legal and theoretical and methodological views of these authors are completely heterogeneous and only with a certain degree of conditionality can be united by common and unified positions. In general, they were united by two fundamental points: firstly, they positioned their views as a type of intellectual struggle against the spread and influence of metaphysics in jurisprudence, and in this sense, waging a decisive struggle against metaphysics and its influence in various aspects of philosophy, culture, law, language, and other spheres, they are like a kind of antipode of rationalism (initially, in contrast with the ideas of the Swedish philosopher Bostrem, who firmly adhered to the principles of the German classical idealistic-transcendental philosophy ^[6]), they demanded a turn to reality, to realism in the field of social sciences and practice, which is why the corresponding name appeared; secondly, the realism of Scandinavian lawyers was characterized by psychological and even often mystical-psychological orientation. In some studies, one can find a corresponding characteristic of the legal views of A. Ross, as a kind of mystical psychologism. However, in reality, this characteristic is also applicable to the ideas of the founder of Scandinavian realism, A. Hagerstrem. It was psychologism that was an essential feature of Scandinavian legal realism. But the nature of psychologism in the legal views of Scandinavian authors needs explanation. The same can be said about the meaning and nature of the use of the term "legal realism" ^[2].

In general, Scandinavian legal realism was not unusual for its time in its basic attitudes and name. Scandinavian literature in general did not stand out noticeably in the history of socio-political thought in Europe. To some extent, it can be said that he was a somewhat belated version of attempts to build an independent doctrine of law based on a turn to realism in jurisprudence. The XIX century is the era of realism in jurisprudence, characterized by the great influence of natural sciences, the spread of the ideas of philosophical positivism, which became the basis for the formation of jurisprudence as a theory of law, positioning itself as an exact science or at least imitating the exact sciences. Positivism in jurisprudence, which proceeded from the interpretation of law as a fact – social or psychological, along with the development of sociology and psychology, formed almost the entire agenda of the development of legal thought. Therefore, of course, the call to study law as a real phenomenon, a real fact was the hallmark of jurisprudence in the early twentieth century. Realistic were the "Tubingen school" ("jurisprudence of interests" headed by F. Heck), the "free law" movement, which had a great influence on the formation of American legal thought and was very popular there. In this environment of fascination with empirical and realistic tendencies, a protest arose on its part against the dominance of the methods of natural sciences or those formed by analogy with the natural sciences. The protest was expressed in various forms, but first of all it basically boiled down to the fact that the logical and conceptual basis of legal science should be formed not in the image of natural sciences, but in the image of mathematics. In essence, it was about the swing of the pendulum within the limits that were once designated by Kant, who fundamentally distinguished the logical-epistemological and the real-psychological sides of cognition. In philosophy, the protest in favor of the logical direction was led by E. Husserl ^[3]. I must say that in the works of A. Hagerstrem, reflections very similar to Husserl's phenomenological teaching were expressed, although there are almost no references to the latter's works in the theoretical and methodological works of A. Hagerstrem ^[8-10].

These trends are important for understanding the nature of the legal realism of Scandinavian authors. He tried to combine both trends. Therefore, for example, in the works of the founder of this direction, A. Hagerstrem, on the issues of epistemology, the concept of idealistic objectivism is proposed, and the word reality, used everywhere, is not an empirical reality and this should not be misleading. However, in works devoted to practical philosophy, especially philosophy of law, moral philosophy, his epistemological concept turns out to be almost unnecessary, since here the author was more willing to work empirically primarily with historical material. Or, for example, A. Ross everywhere talks about the role of practice, but at the first approximation it seems that the author's ideas have nothing to do with real, actual practice. K. Olivecrona and V. Lundstedt take to a certain extent a more one-sided position, similar to the ideas of their overseas colleagues – American realists. These two authors were characterized by a more consistent position in defending their ideas about law as a social or socio-psychological fact. Therefore, it is possible to speak only conditionally about realism in the ideas of the law of Scandinavian authors. This point always requires an explanation of the meaning of the term "reality". For A. Hagerstrem, reality is a certainty, for A. Ross, only the reality of psychic mystical impulses as a special kind of psychophysiological organisms is important. 

All the authors of the Scandinavian group of lawyers of the so-called realistic direction have a strong influence of psychologism. It is present either in the form of justification of law as a psychological fact, or is used as a necessary prerequisite for an objective and logical analysis of law. In any case, if we remove psychological problems from the legal representations of these authors, their theoretical ideas would lose a key point. But the nature of the psychology of Scandinavian lawyers is very specific: it is not only in Ross, as is usually noted, but also in Hagerstrem has a mystical character. Perhaps this is due, among other things, to the fact that he dealt with issues of theology. It can be said without a doubt that this trend of legal thought represented a kind of mystical psychologism in law. For A. Hagerstrem, law, on the example of the Roman formula jus, in its "pure", "original" form, i.e. before mythological layers, represents a kind of supernatural force, which is also characterized by purity from all kinds of "contamination with deadly germs", a mystical life force ^{[7, S. 34-35]}. Hagerstrem considered the most dangerous form of metaphysics to be the unconscious form, which is present everywhere and does not receive proper resistance, since it is part of everyday and ubiquitous everyday human culture. It does not seem to have a philosophical form, a theoretical form, which, in the opinion of this author, does not allow for direct criticism. The main methodological prerequisite of adequate epistemology is the logically necessary assumption of a real subject, primarily his psyche. It is precisely this clarification, as Hagerstrem believed, that makes it possible for an adequate formulation of the question of objective cognition. Legal concepts within the framework of Hagerstrem's ideas do not reach the level of universality that distinguishes theoretical concepts. Legal concepts are respectively derived in a sociological and psychological way. In particular, he believed that in legal concepts, under the appearance of theoretical concepts, only certain feelings and associations associated with them are hidden.  

A. Ross wrote that jurisprudence inherited a system of concepts, whose own content of concepts, which no longer allows it to be directly covered, originates in a metaphysical, inadequate reality of the world of thoughts. And therefore, the task of "practical knowledge" of law should be to explain that the application of this kind of conceptual system in science, which intends to be formed in accordance with modern points of view on the basis of reality, will necessarily generate ambiguities and disharmony ^{[13, S. 6]}. "Whether the legal basic concepts once actually originated from an alien reality, mystical, practically metaphysical world of ideas or not ... today, all this in any case does not matter ...; after all, at present no one believes in such metaphysics anymore, and we with our legal basic concepts, after all, we only want absolutely it is simple to comprehend and express the perceived facts of law" ^{[13, S. 6]}.                                          

At the same time, A. Ross explained that he did not claim that "mystically unrealistic ideas about law are actually cultivated by modern man, but only that such ideas are implicitly in the dark, i.e. usually not brought to a clear awareness, prerequisites of the concept of law" ^{[13, S. 6-7]}. Accordingly, as Ross believed, the question of how such prerequisites are possible and how they can be recognized is relevant for modern legal science ^[14]. The solution to this problem was seen by him with the help of an analysis of the functions of concepts, which means an analysis of how the understandings in which the corresponding concept occurs are personified. Just like in humans, Ross noted, we must study what they really are and what they really have power for, and this can be done not from their own explanations about their abilities and capabilities, but from an analysis of how they actually act and function. This idea, despite all the assurances of A. Ross about a breakthrough to a certain practical philosophy, the analysis of the real facts of law, is quite simple and trivial for the beginning of the time when Ross wrote about it (the analyzed work was published in 1933), since it has been for more than a century, especially in the second half of the XIX century., it was developed deeply and thoroughly by lawyers, sociologists of law.

Functional analysis is an attribute of the sociological concept of law, the application of natural scientific methods, by analogy with the ideas of a living organism. Therefore, Ross's attempt to pass off the idea of a functional analysis of law as a kind of original formulation of the question in the pan-European context of the history of legal thought could hardly be noticed. However, for the internal Scandinavian agenda, if such a generalization can adequately convey the area of dissemination of relevant ideas, in the context of the development of Hagerstrom's realism and in the context of criticism of the logical positivism of the Viennese school, from which Ross himself emerged ^[12], such a clarification on the analysis of the functions of the basic concepts of law looks quite logical and updates the approaches existing within this tradition.