A. Hagerstrem's Legal Views: the Conflict of Idealistic Objectivism and Psychologism

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

Studying the views of A. Hagerstrem ^[9-11], two fundamental aspects should be distinguished. Firstly, we are talking about his development of epistemological teaching, which was based on contrast with the ideas of German idealists, as a kind of "refutation" of the influence of metaphysics, primarily in the form of the philosophical teachings of Schelling and Hegel. A. Hagerstrem thought that the main problem of contemporary thought was the deepest penetration of metaphysics into all spheres of scientific and everyday knowledge and consciousness. He tried to formulate a variant of idealistic objectivism containing the principles of "correct" theoretical objective cognition. Secondly, there are works of this scientist in the field of moral and legal philosophy, legal studies on obligations in Roman law and modern Swedish law. So these "practical problems", as Hagerstrem called them, were investigated by him from a completely different point of view, which, upon closer and detailed analysis, demonstrates that the principles of his epistemological teaching clearly contradicted legal views.      

Therefore, to analyze the teachings of A. Hagerstrem from the point of view of the evolution and content of psychological theories of law, two fundamental aspects arise. First of all, it is necessary to clarify the peculiarity of the principles of the epistemological teaching of A. Hagerstrem and the content of the concept of reality, which has become an attribute of the characteristic of the direction that originates in the works of A. Hagerstrem. In modern literature, in which the legal views of this scientist are analyzed, a mistake is everywhere made in explaining the nature of the realism of Scandinavian authors ^{[5, 6, 12, 18]}. In particular, we are talking about the fact that the meaning of the concept of reality was part of his epistemological teaching, which in its own way, as a "correct" theoretical concept, was considered in line with the idealistic objectivism of A. Hagerstrem. On the contrary, jurisprudence in the sense of the concept of this scientist did not reach the level of theoretical science in any way, since the object of this field of knowledge was only feelings and associations associated with them. And genuine science, as A. Hagerstrem assured, cannot work with such material unsuitable for theoretical analysis. The application of epistemological principles and concepts formulated by A. Hagerstrem, including the concept of reality, to the analysis of law creates rather paradoxes that exclude either the epistemological part or the empirical one. In fact, A. Hagerstrem's theory is an attempt to theoretically develop the principles of scientific cognition, which are based on a variety of prerequisites and conditions. And this naturally implies that the socio-practical potential of legal realism in this interpretation is of extremely little importance. It is possible to draw a parallel with the phenomenological doctrine ^[2] and the fact that its application to the analysis of legal phenomena has many limitations: for example, due to the impossibility of its application to the analysis of complex systems such as law, morality, religion, etc.                      

One of the central concepts of Hagerstrem's legal concept was the concept of objective law. He approached the explanation of this concept from a philosophical and legal point of view, considering it much broader than a possible theoretical and legal interpretation, namely focusing on how possible it is to talk about legal concepts as really theoretical concepts underlying "objective cognition". In other words, he gave all legal concepts, as well as the concept of objective law, the character of an epistemological problem. In particular, positioning his approach as realistic, he rejected perception as the only direct criterion of reality and that, unlike perception, the term in any case can only perform a secondary and derivative function.

Hagerstrem denied the objective validity of legal concepts not because they are general concepts and, as such, cannot have direct access to reality. In his opinion, legal concepts can never rise to the degree of generality that characterizes truly theoretical concepts, because in them, under the appearance of concepts, only certain feelings and associations associated with them are hidden. For example, what does the legal concept of "property" mean, Hagerstrem wondered.  

A. Hagerstrem in the jubilee collection in honor of the 70th anniversary of Prof. Arvi Grotenfelt wrote: "Without hesitation, let's master the field of practical knowledge with the help of ideas very close to the method of magical contemplation... What does the right of private property mean? If we try to determine what can really be observed in its presence, we will find nothing but certain social rules that are implemented relatively widely... But the general consciousness and, based on this, jurisprudence pushes between the legal fact - purchase, will, etc. — and the application of social rules, the right acquired by the legal fact: the right of ownership in the ordinary sense of the word. . . If I own the ownership of the apple, so that means... that my spirit has the opportunity to eat an apple. The origin of this mystical imagination is undoubtedly connected with highly developed feelings of strength in defending a certain position, for example, when you first took possession of an item that has not yet been appropriated. Such feelings of power awaken the idea of objective forces that act independently of what is perceived. Nevertheless, it is clear that, thus, a legal fact is also endowed with an obviously mystical power" ^{[16, S. 83-84]}.

In this fragment, Hagerstrem definitely explains property law and law in general as a psychological phenomenon, or rather, as a mystical-psychological phenomenon, which is based on feelings and perceptions.  

However, for A. Hagerstrem, the logical and cognitive problem, the question of the scientific nature of jurisprudence is not related to the interpretation of the nature of legal phenomena themselves and even legal concepts. For this theory - epistemological teaching – it is not important whether such a thing as "property" exists in reality, as one of the elements of reality. After all, he proceeded from the fact that reality means only certainty, and such certainty is conditioned by the idea of a universal and consistent connection of phenomena. How not to pay attention to the similarity of these reflections with the ideas of Schelling or Hegel? Although Hagerstrem repeatedly repeated that he struggles with any manifestations of metaphysics.

Theoretical concepts, according to A. Hagerstrem, presuppose a postulate of the corresponding order of world perception, moreover, one that has no contradictions, something completely rational in its essence. However, the implementation of this postulate does not happen by itself, but is a rather difficult task. And in this regard, Hagerstrem believed that theoretical concepts can never express a certain absolute value, i.e. the objectivity of cognition has a relative character, despite the requirement of objectivity. Like many epistemological teachings of the second half of the XIX century and later, considering the point of view assumed a certain presumption of the existence of a reasonable reality. This moment is most concentrated and accurately reflected in Hegel's philosophical teaching on the relationship between reasonableness and reality ^{[1, pp. 53-55]}. In the teaching of empirio-critics and phenomenologists, there is an original transformation of this postulate. The picture of the world is reduced to psychologism (both ontologically and methodologically): the consciousness of the subject is henceforth the world proper; he is the subject, - following the sophists, means everything that happens in the world through subjective meaning. It's just that a person, as it were, expands the fields of cognition, but proceeds from the microcosm of cognition as rational. First, the picture of the world is projected onto consciousness, presenting it as an ontological problem. Then this microcosm with all the attributes of ontology expands, comes out, and thus this certain (transcendental) subject becomes the actual value of evaluation: whether it is immanent philosophy or communication, the meaning of the world is signified through logical interpretations of psychological patterns. Even phenomenological a priori concepts – eidos – are taken as elements of reasonable reality that arise at the junction of "ontological regions" ^{[13, 14]}, where the structures of reality, like tectonic processes in the lithosphere, come into contact and interactions. The new philosophy is interested in reality not as an integral world with universal meaning and significance, but only as an impression, a snapshot of reality. And the idea of reasonableness serves not as a subject of cognition, but as a method of evaluating actual processes: an ideal type, pure experience, pure theory, etc.                  

A. Hagerstrem, understanding the vulnerability of the postulate underlying his epistemology, also noted the danger that the unity that is believed to have generated cognition will collapse. Therefore, if an individual perception does not correspond to reality, then in the new paradigm of science, this should not be perceived as vulnerability and disadvantage. It is as if it is not devalued in its reality, and its reality is limited only to a certain sphere. So, A. Hagerstrem gave the following example: if it is claimed that the content of a dream does not "correspond" to reality, then this in no way cancels the existence of this content; it is only explained that this content does not exist by itself, but only in relation to the fantasizing consciousness, as it is given in certain physiological conditions dreams. Thus, the path of objective cognition goes from narrower to broader and, finally, to universal formations, but at the same time the extreme limit is always only intentional, never finally reached ^{[7, S. 82]}.

These characteristics are also valid for legal concepts. They are affirmed by embracing ever wider areas of consciousness. Hence A. Hagerstrem concluded that initially law exists within very narrow limits, in a narrowly delimited area, beyond which legal concepts do not go. And what is meant by the term "right" exists only within a strictly defined community, within a genus, tribe, etc. The one who is outside of this association, therefore, is also outside the law; in relation to him, all social protection and all social responsibility cease. But with the expansion of social associations and with the new tasks that this expansion includes, there is also a development that pushes the "legal consciousness", as well as theoretical consciousness beyond its initial barriers ^{[7, S. 98]}.

The concept of reality, which defines Hagerstrem's position (he is regarded as the ancestor of Scandinavian legal realism), means certainty, the movement of which, both in practical and theoretical knowledge, implies development from the indefinite to the definite, from the infinite to the finite, from the partial to the universal. As a result, only the principle of cognition is more important, not the nature of phenomena (psychological facts in law), not the search for truth, but only the idea of "correct" cognition, which in the case of Hagerstrem's ideas is very close to phenomenology.

According to A. Hagerstrem, the rule of law arises only when thinking rises to the level to expand the established here and now, or otherwise, when it aims to spread to the future. These were largely the ideas of V. Wundt, formulated by him in the Psychology of Peoples (Volume 9) ^[19]. The Scandinavian scientist believed that the definiteness of the future by the present and the obligation of what the present has decided for the future is a moment of "possible" legislation. Accordingly, proceeding from this, he concluded that law as a cultural fact is based on this foresight, on the foresight of the future in the present. Without this kind of "foresight", a person would not be able to establish either a legal or a social order ^{[16, S. 84]}.

One of the central concepts of the philosophy of law, which Hagerstrem protested against, was the concept of will and its derivatives. Of course, he could not bypass it, since through this concept the nature of human actions and their orientation is revealed, especially when it comes to human behavior in the future. This is a constitutive moment of any consciousness and the efforts of many philosophers have been directed to its explanation. Hagerstrem is categorically opposed to following Leibniz to distinguish two types of phenomena in the content of consciousness, which he characterized as "representation" and "intention". For the Scandinavian legal philosopher, concepts such as "will" and "intention" contain difficult-to-explain, metaphysical or even mystical elements. Accordingly, arguing with the concept of will, Hagerstrem criticized its derivatives, such as the "general will", the will of the state, etc. Some researchers believe that the criticism of the volitional theory in the philosophy of law from the standpoint of the arguments that Hagerstrem proposed, turned out to be very effective in terms of a kind of exposure of the Hegelian absolute concept of the "will of the state". It is difficult to agree with this, because, firstly, long before Hagerstrem, repeated attempts were made to criticize volitional theory, including Hegel, and, secondly, Hagerstrem's views did not have such an influence outside the Scandinavian space as to be the culmination of criticism of objective idealism in the Hegelian philosophy of law. In addition, Hagerstrem, despite all his criticism of the volitional theory, does not so much refute it as suggests replacing the idea of will with the idea of feeling. In this sense , he is very close to the psychological theory of the American contemporary W. James, according to which feelings were explained not as arising on the basis of certain bodily states, but directly as these states themselves ^{[15, p. 449]}. In other words, as Hagerstrem himself wrote, "Sadness is an unpleasant burden of pressure on the body in combination with movements aimed at its removal, the representation of which is associated with these qualities. Horror is a paralysis of movements associated with the strongest reluctance that we experience with certain perceptions and only in this way the very qualities of feelings can be fixed in their reality" ^{[16, S. 65]}.

The definition of the nature of feelings, i.e. the concept that has become central to Hagerstrem's system of legal views, from the above point of view created many misunderstandings in attempts to explain the concept of duty, duty, or the concept of law. Sensations and feelings, respectively, demonstrate a certain state in which the organism is currently located, but how should the content of the concept of right or the concept of duty arise from this? In other words, the will, according to Hagerstrem, is determined solely by external coercion, has no internal content. Kant also assured that it is in a person's ability to self-bind on the basis of the will that constitutes a specific ethical characteristic of the will itself ^[3]. Hence the idea of a moral personality arises in Kantianism. Accordingly, the will in this context is not considered as a characteristic of some mysterious initial cause that dominates in man, is a kind of unconscious force, almost by analogy with the natural sciences; a kind of panpsychism that speaks of the universal spirituality of nature.

For Hagerstrem, the rationality of reality is not an essential result of his reflections. On the contrary, he proceeds from the fact that reality is rational and this is an axiom for epistemological teaching. In this regard, they deny the possibility of justifying proper objective cognition by induction. The special, in his opinion, or the factual, in no case can claim to serve as a basis for substantiating the objectivity of cognition. Therefore, for Hagerstrem, the possibility of substantiating empirical cognition by the Hume method from the point of view of such constructs as "impressions" and "associations" ^[4] is untenable, since the role of induction is denied. However, everything changes dramatically in Hagerstrem's system of representations when it comes to practical tasks and problems. In this area, the methodological and theoretical part of Hume's teaching suddenly becomes easily applicable and is actively used by Hagerstrem. Value cognition, aimed at becoming more than just a combination of the corresponding feelings and associations that are associated with them, is simply a chimera. Therefore, the possibility of socio-humanities is excluded for Hagerstrem. He is categorically against even the very name as a science.

Hagerstrem wrote: "In general, everything that is called humanitarian science, whether it concerns the individual, society, the state, morality or religion, is just an intellectual game with the expression of feelings, as if these would mean something real. Admitting the possibility of such a science, it is assumed that feeling itself can contain cognition" ^{[7, S. 48]}.

Hagerstrem's criteria for scientific validity do not stand up to criticism, since most of the existing scientific literature, tested with the help of this criterion, will turn out to be completely unscientific, especially with regard to philosophy, ethics, jurisprudence, philology. Natural science is the only science from the point of view of the teachings of the Scandinavian scientist. Hagerstrem's criteria for scientific knowledge are very, very problematic and strongly contrast even with his own views. Behind the desire to formulate a "pure" method of cognition, a convincing epistemological teaching, the logic of their own research was lost. For example, many of Hagerstrem's works were written on the basis of conclusions drawn from the analysis of empirical material, especially on the history of law, religion, and mythology. If we admit, following Hagerstrem, that the results he obtained in these works and the conclusions he drew do not have objective cognitive significance, then, accordingly, it should be recognized that all the literature he wrote is not scientific. In a word, Hagerstrem's practical philosophy completely contradicts the principles of his epistemological teaching, the so–called objective cognition. After all, he argued that any factual knowledge already contains elements of principled knowledge, theoretically correct knowledge, that there can be no knowledge simply about "pure facts".

Hagerstrem led a determined struggle against the influence, first of all, of Hegelian and Schelling philosophy on the social and humanitarian sciences. As a result, if we imagine a picture of the state of the sciences in the logic of Hagerstrem's struggle, nothing should remain of jurisprudence, except only feelings, which are vainly trying to elevate to the rank of science. Since Hagerstrem attacked with his struggle against all the humanities, but at the same time attached great importance to the psychological factor, the question arises as to what meaning and place they were assigned to psychology. It should be noted that nowhere in his works did he speak about any special provision for psychology, which, accordingly, leads to a logical assumption about the position of psychology among the humanities, i.e., according to Hagerstrem, limited in its possibilities to claim the role of a genuine science. Hagerstrem's entire ethical and legal philosophy is based on psychological research, primarily on the nature of the sense of duty and the sense of law. This topic was popular in the European and Russian legal literature of the last quarter of the XIX – early XX century and had various interpretations ^[17]. However, analyzing Hagerstrem's writings, one gets the impression that he either was not sufficiently familiar with European legal literature, or consciously chose some of his own, although well-known for European and Russian readers. In addition, several variants of criticism of the status of the social sciences and humanities have already been widely distributed (for example, in the works of V. Diltey). The same Dilthey also tried in the early 1880s to rebuild all the social and humanitarian sciences on the basis of psychology, using the concept of "experience" as a basic one ^[8].