[320]Some Features of the History of Natural Law

This chapter considers some features of the historical evolution of natural law in order to promote understanding of what actually characterizes natural law thinking as it is known today. It traces the history of natural law back to around 700 BC to demonstrate how natural law theory has essentially remained the same. Its characteristic features are certain modes of thought and expression which in all its phases—magical, religious, and philosophico-metaphysical—are radically different from scientific ones. There is an unbroken line from the magical-animistic belief of primitive man, over dogmatic theology to the great philosophico-metaphysical systems. The principal idea behind all manifestations of this line of thought is a fear of existence and its powers, and the impulse to seek refuge and safety in something absolute.

The Sources of Law[121]

This chapter identifies the ideology of the sources of law in the sense of determining the general sources through which judges form their beliefs about the validity of individual legal rules. In accordance with the norm-descriptive perspective, the focus is on identifying the ideology of the sources of law that is actually held by judges. As part of scientifically valid law, the ideology of the sources of law varies from one legal system to another. The task for general legal theory can therefore only consist in stating and characterizing certain general types of sources of law, which experience tells us are found in all well-developed legal systems where they are found to determine how courts proceed in their search for the norms on which they base their decision. This chapter identifies four such sources of law and considers the degree of objectification or positivization possessed by each of these types of sources. Specifically, it discusses the completely objectivized type of source: authoritative formulations (legislation in its widest sense); and the partially objectivized types of source: precedent and custom; and the non-objectivized, ‘free’ type of source: ‘cultural tradition’ or ‘the nature of the matter’. Countenancing the latter as a scientifically valid source of law, is further argued to highlight the difference between the author’s legal realist perspective and the formalist perspective characteristic of legal positivism.

[378]Utilitarianism and the Chimera of Public Utility

This chapter begins with a discussion of the relation of Bentham’s utilitarianism to natural law. It argues that Bentham’s break with the past is not as complete as he himself believed. Still, it would be wrong to lump utilitarianism together with natural law. Bentham’s criticism of the sense of morality and justice, and his claim that an action should be judged according to its real effects, are steps towards a realistic theory of permanent value. The chapter then discusses the dissonance between the maximization principle and people’s actual deliberative actions, and the chimera of public utility. It argues that in recent years, it has become quite customary to speak of public utility, of the needs of society and the like, instead of the sum of the pleasure of individuals. However, doing so conceals the fundamental flaws of the utilitarian principle without changing anything with respect to the real issue at hand.

Operative Facts

This chapter considers operative facts, which are defined as the complex totality of all facts that can be of relevance to a decision according to scientifically valid law. Among the operative facts, we can distinguish between those which are of specific relevance and those which are merely of conditioning (modifying, excluding) relevance. The former are also called law-creating facts and they are defined as those facts that, as a rule, give reason the specific legal effects. Among these facts are human acts which again should be divided into factual acts and legal acts or dispositions. Both groups are dealt with here. The former group include the act that is contrary to duty (the unlawful act), which is analysed independently. Acts in the latter group are always the effect of a competence. A distinction between public legal acts and private transactions is introduced but the account given is restricted only to private transactions.

The Concept of Rights

This chapter discusses the concept of rights. It is a task for legal science to systematize the legal rules, that is, to provide a description of the law which is as simple and clear as possible. The concept of rights serves this purpose. It is argued that in itself the concept of rights does not refer to anything. It does not designate any phenomenon of any kind which inserts itself between conditioning facts and conditioned consequences. The concept of rights is solely a means through which it is possible to visualize—more or less accurately—the content of a set of legal rules, namely, those rules which connect a certain disjunctive plurality of conditioning facts with a certain cumulative plurality of legal consequences. Building on this analysis of the concept of rights, the chapter provides an account of the typical rights situation, of rights as substance, and of the structure of the right. In conclusion, this analysis of the concept of rights is compared with and distinguished from the critique of the concept of rights put forward by Duguit in France and Lundstedt in Sweden.

The Concept ‘Scientifically Valid (Danish) Law’

On the basis of the analysis of the game of chess and chess rules, Chapter I proposed the working hypothesis that, in principle, it must be possible to define and explain the concept ‘scientifically valid (Danish, Swedish, etc.) law’ along the same lines as the concept of a ‘scientifically valid norm of chess’. This chapter attempts to develop this working hypothesis into a comprehensive theory about what the concept ‘scientifically valid (Danish, Swedish, etc.) law’ actually means. The working hypothesis implies that the law, like the rules of chess, is a supra-individual, social phenomenon. This means that the legal notions of action give rise to a common ideology which is active in most judges’ minds, thereby creating an interpersonal context of meaning and motivation effectively guiding their actions in office because the legal rules are felt to be socially binding. In terms of content, the legal rules are directives to the judges for organizing the exercise of specific coercion through the courts. These directives fall into two categories: norms of conduct; and norms of competence. The former prescribe a certain course of action. The latter create a competence (power, authority) which, in turn, means that they are directives to the effect that norms created in conformity with a given mode of procedure shall be considered norms of conduct.

Science and Politics

This chapter discusses how it is possible to arrive at a scientific legal politics understood as something that has the characteristics of advice, guidance, or instructions to the legislator. It is argued that the role of knowledge (science) within the sphere of action can never consist in setting up categorical or self-valid norms of action, that is, norms whose motivating force lies in knowledge itself and is, thus, independent of any subjective attitude or interest. The function of knowledge can only consist in giving directives which are valid hypothetically only, that is, under the assumption of a given irrational motive (interest, attitude). Science can only serve and guide rational argumentation by providing it with scientifically tenable assertions and by critically separating those which do not lend themselves to scientific examination. By contrast, all participation in, or support of, persuasion must be outside the scope of science. Accordingly, it is argued that ordinary political debate is not located at the level of science and logic, but rather at the psychologico-technical-causal level: it purports to bring about practical agreement, by influencing an opponent’s point of view through argumentation and persuasion.

The Legal Modalities

This chapter considers the ambiguity of modal expressions in legal language. It argues that the terminology used in legal language suffers from great imprecision. All expressions that have been used are ambiguous, and even if the way in which a certain expression must be understood usually emerges from the context, the ambiguity may well give rise to doubts. This ambiguity is inherent in the expressions of duty, and since other expressions can be reduced to these, they are consequently ambiguous, too. What is more, the very reduction is frequently ambiguous. Since, however, a terminology of duty, of claim, etc., is indispensable to legal language and can hardly be eliminated from legal science, the task is to improve its usage. This chapter suggests a terminology which proceeds from the system worked out by the US jurist W. N. Hohfeld.

Legal Method (Interpretation)[156]

This chapter focuses on legal method and aims to determine the principles of interpretation that are scientifically valid. In accordance with previous chapters, this implies that the perspective is norm-descriptive, not norm-expressive. The aim is not to establish which principles of interpretation are correct but which principles judges hold to be correct and which, as such, actually guide the courts when they apply general legal rules to specific subject matters. As with the sources of law, the ideology of interpretation varies from one legal system to another. Accordingly, the task for general legal theory can only be to explain certain factual presuppositions concerning problems of method, and to place and characterize various existing styles of method and interpretation within the framework of a general typology. Furthermore, the chapter focuses primarily on problems of method in relation to statutory interpretation which features more prominently within Continental legal systems where legislation is the predominant source of law. On the basis of a general account of semantics, the chapter proceeds by analysing three types of problems of interpretation—syntactic, logical, and semantic—and concludes by reflecting on the role of pragmatic factors in the exercise of legal authority.

The Role Played by the ‘Sense of Justice’ in Legal Politics

This chapter discusses the legitimate role played by the sense of justice in scientific legal politics. It begins by introducing a distinction between ‘interests’ (attitudes based upon needs) and ‘moral attitudes’ as a contrasting pair. The standpoint based on interest is always conditioned by certain beliefs, and is thus the subject of justification in a rational argumentation. The moral attitude (the moral sense), on the other hand, is a direct and unconditioned attitude towards a norm of action or a social order. It is irrational in the sense that it is a direct expression of an emotion and inaccessible to justification and argumentation. These considerations concerning interest and moral attitude apply mutatis mutandis to policy considerations and the sense of justice as factors in scientific legal politics. Policy considerations express the evaluation of legal rules on the basis of rational arguments concerning the rules’ actual relevance in relation to presupposed interests. The sense of justice, on the other hand, is a disinterested and inculcated, immediate attitude of approval or disapproval towards a legal norm of action directed toward the social order.