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Editor’s
preface
The present volume constitutes a full new English translation of Alf Ross’s major work originally published in Danish as Om ret og retfærdighed in 1953. This is not the first time the book has been translated into English. Shortly after its publication in Danish, Ross himself carried out a translation in collaboration with Margaret Dutton. That work was published in 1958 and immediately reached a wide readership.
Considering that the book has previously been published in English and in a translation authorized by the author, the editorial decision to publish this new full translation instead of merely reprinting the old one may require an explanation. The primary reason is that, regardless of Ross’s own contribution, the first translation nevertheless suffers from a number of defects, even to the extent where scholars have been warned against basing their understanding of his version of Scandinavian legal realism on it. Considering the sustained, and in recent years increasing, interest in Ross’s work in the Anglophone legal academe, this is of course unfortunate.
One specific problem that has attracted considerable attention relates to the English translation of the two key terms in Ross’s legal theory gyldig ret and gældende ret. These terms have no immediate equivalent in English so, in the 1958 edition, Ross chose to translate both terms indiscriminately as valid law. Unfortunately, this has led Englishlanguage readers, H. L. A. Hart most prominently among them, to overlook the fact that Ross’s legal realism relies on a distinction between two kinds of valid law expressed in Danish precisely with the two terms gyldig ret and gældende ret.
Another, apparently less noticed but equally important problem with the 1958 translation is the fact that it is a significantly abridged version containing numerous, seemingly inexplicable omissions. A systematic comparison reveals that there are omissions both within sentences and of entire text passages, sometimes of considerable length. The combined effect of these defects is that the 1958 edition has failed: (i) to state correctly the character and scope of Ross’s central philosophical project; and (ii) to adequately represent the core thesis behind Ross’s bipartite analysis of valid law. In turn, this has significantly derailed scholarly discussion of Alf Ross’s legal theory. By providing a full new translation from scratch, it is our hope to help this scholarly debate back on track by making sure that in the future it will be based on the actual merits and demerits of Ross’s realistic theory.
While the translator has essentially provided the full translation, the primary role for me as editor has been to secure philosophical consistency throughout,
and in exegetical questions raising dilemmas of theoretical importance to decide on the way forward. This is particularly relevant with regard to the difficult issue already mentioned at the heart of Ross’s legal theory, i.e. regarding his distinction between gyldig and gældende ret. In the separate section, ‘A note on the translation of “gyldig” and “gældende ret” as “valid” and “scientifically valid law” ’, the translational dilemma is outlined and reasons are provided for the solution that has been chosen.
Furthermore, I have provided a general philosophical introduction to On Law and Justice. In spite of the general clarity of his writings, Alf Ross is not always an easy philosopher. This is perhaps especially true for readers in the Anglophone tradition in legal philosophy, which generally seems to place less emphasis than Ross on epistemological issues and general issues of philosophy of science. Accordingly, the introduction focuses on explaining Ross’s philosophical project and situating it in the context of problems, which will presumably appear more familiar to the average Englishlanguage reader. I should also add that the page numbers of the second Danish edition of On Law and Justice (Om ret og retfærdighed, 2013) are given throughout, in the margins.
I would like to extend my warm gratitude to those who have supported me in the process of undertaking this project and carrying it to completion.
First and foremost, I would like to express my most heartfelt gratitude to Professor Uta Bindreiter for her untiring, conscientious, and in every way truly excellent work.
I am sincerely grateful to Professors Brian Leiter and Stanley L. Paulson for supporting the project at crucial points, each in their own way.
Several years ago, I read an interview with Brian Leiter, where, in reply to the question ‘to which issue of legal philosophy would you most like to see more attention paid in the future?’ he said, ‘Scandinavian realism deserves a sympathetic reconsideration’. Apart from speeding up my own ongoing research to this end, reading his answer first sowed the idea in my mind that there might be an audience for a new English translation of Ross’s major work. Later, upon meeting in person, Brian Leiter expressly supported the idea, he wholeheartedly encouraged me to undertake the task with Oxford University Press, and he has continuously given invaluable advice in the process.
Of equal importance was a meeting with Stanley L. Paulson at the Hans Kelsen conference ‘Legal Science and Legal Theory’ at the University of Oxford in September 2010; a meeting after which the first concrete plans towards a new translation began to materialize. First, it was Stanley L. Paulson’s inspired suggestion to approach the translator Uta Bindreiter, the sine qua non of this book. Second, he once wrote to me that a new translation ‘would be a major contribution. Something fundamental, by contrast to the little articles we all write’. These wise words have continuously helped keep things in perspective.
Also, I would like to extend my sincere thanks to three colleagues at the Law Faculty at the University of Copenhagen—namely, Professor Henrik Palmer Olsen for his early active contribution to and continued warm support of this project; Professor Mikael Rask Madsen for, as the director of iCourts where I am employed, not only allowing but even seeing the contemporary value of old realist thoughts for a centre that studies international courts; and Associate Professor Shai Dothan for his supernatural scholarly generosity, also with this project.
I owe a special debt of gratitude to Alf Ross’s son Strange Ross who, on behalf of the family, has kindly granted permission and support not only to this publication in English of On Law and Justice but also to the publication in 2013 of a new edition of the original Danish manuscript Om ret og retfærdighed.
Finally, I would like to extend my warm gratitude to the commissioning law editors at Oxford University Press, Alex Flach and Jamie Berezin, for their generous encouragement and unwavering support for the project of publishing this new translation.
This research is funded by the Danish National Research Foundation Grant No. DNRF105 and conducted under the auspices of the Danish National Research Foundation’s Centre of Excellence for International Courts (iCourts).
Jakob v. H. Holtermann Copenhagen, January 2019
Translator’s preface
Following closely upon the 2013 edition of Alf Ross’s major work in Danish, Om ret og retfærdighed [On Law and Justice, 1953], this new English translation has a twofold purpose: first, to render Ross’s jurisprudential aims as faithfully as possible; and second, to do justice to his characteristic way of expressing himself. Pursuing this purpose, we endeavoured to observe the utmost loyalty to Ross’s original text.
Thus, rather than opting for a strictly idiomatic translation, we followed the text as closely as possible: getting Ross’s precise meaning in addressing specific legal issues was far more important to us than strictly adhering to the rules of grammar and syntax. At the same time, we not only wished to render Ross’s exact meaning, but also his style of speaking and manner of expression without negatively affecting the reading experience.
The fact that the Danish terms gældende ret and gyldig ret (pivotal in Ross’s legal philosophy) have no equivalent in the English language has already attracted considerable attention, the crux of the matter being the question how one might render, in English, Ross’s differentiating between these crucial terms. Since this issue is at the heart of Ross’s legal theory, it has been given special treatment in a separate section, namely, the editor’s ‘A note on the translation of “gyldig” and “gældende ret” as “valid” and “scientifically valid law” ’; the issue is also extensively discussed in the editor’s introduction.
Anxious to express himself as clearly as possible, Ross frequently offers unusual—and, in his view, more precise—compounds, which, however, pose almost insurmountable problems for any translator. In this respect we tried to adhere to the text as much as possible, frequently settling on a new (and perhaps somewhat nonEnglish) compound.
Square brackets used in the body text, in the footnotes, and in Appendix C indicate that additional information has been supplied by the translator or editor. This information may concern obsolete words or phrases, or laws and legal institutions which do not exist anymore and therefore need an explanation.
I would like to extend my sincerest thanks to those who have supported me in the translation process.
First and foremost, I am indebted to those scholars who, well aware of the importance and urgency of providing a new English translation of Ross’s major work, have wholeheartedly encouraged me to undertake this task—namely, Professors Jakob von H. Holtermann, University of Copenhagen; Brian Leiter, University of Chicago; Henrik Palmer Olsen, University of Copenhagen; and
Stanley L. Paulson, University of St. Louis/Kiel. In this context, I would like to express my deepest gratitude to Professor Jakob von H. Holtermann, who did not shirk from undertaking numerous trips over the Øresund Bridge in order to give me the benefit of his opinion on Ross’s legal philosophy and the intricacies of his terminology.
Special thanks go to Lloyd Cameron, LLM, Policy Adviser at the UK Department for International Development (DFID), who, in the initial stages of the translation, undertook to scrutinize parts of the text and give me excellent advice on English syntax.
Also, I would like to extend my sincere thanks to two colleagues at the Law Faculty of Copenhagen University for their valuable advice—Louise Thiil Parker, BPhil (Oxon), who undertook to check Ross’s rendition of Hohfeld’s concepts, and Associate Professor Shai Dothan who scrutinized §§ 1–60 of Ross’s work with the utmost obligingness.
Last, but certainly not least, I am truly grateful to Oxford University Press for its generous, gracious, and encouraging attitude towards the project of a new English translation of Alf Ross’s major work.
Uta Bindreiter Lund, January 2019
Introduction
jakob v . h. holtermann 1
His greatest philosophical contribution has probably been to develop, in a consistent and rigorous fashion, the consequences of a set of assumptions whose appeal cannot be denied even by those philosophers who reject them.2
1. Background
The Danish legal philosopher Alf Ross (1899–1979) and the school of Scandinavian legal realism to which he belonged seem to be witnessing a revival. The present publication of a new full English translation of Ross’s main work sixty years after its first translation is but one sign of this renewed interest.3 This is not to say that the Scandinavian realists have ever been completely off the map since the school was first established around the time of World War I in Uppsala, a small Swedish university town north of Stockholm. But there has undeniably been a period during the final decades of the twentieth century where the group’s particular version of legal realism has attracted less interest, and the recent increase in attention should be seen against this background.
(i) ‘A whole school of legal theory in Scandinavia’
Scandinavian legal realism consisted of a group of outstanding philosophers and jurists centred on the charismatic Swedish professor of philosophy Axel Hägerström (1868–1939). Besides Hägerström and Ross, the group counted prominent thinkers such as Anders Vilhelm Lundstedt (1882–1955) and Karl Olivecrona (1897–1980). Through their academic activities, the group members managed to establish Scandinavian legal realism as renowned well beyond their small, sparsely populated corner of the world. The Oxford philosopher J. W. Harris once described the Scandinavian Realists as ‘wild prophetic figures riding in from the hills with a message for legal philosophers’.4 Indeed, it seems that this message was powerful enough to secure the riders a lasting place in the
1 This introduction builds on and integrates parts of previously published work, notably Holtermann (2013, 2014, 2015, 2016, 2017); Holtermann & Madsen (2015).
2 Originally stated about American philosopher Willard Van Orman Quine (Hookway, 1988, 3).
3 The first English edition of On Law and Justice was published in 1958 as a translation of the original Danish edition Om ret og retfærdighed, first published in 1953.
4 Harris as quoted in Swaminathan (2016), 254.
intellectual history of legal theory. For instance, as an imperfect quantitative measure, the chapter on Scandinavian legal realism in the reference work Lloyd’s Introduction to Jurisprudence comprises 42 pages—which is only eight pages less than the chapter on American realism.
The specific message of the only member of the Scandinavian school who came riding in from notoriously unhilly Denmark was particularly strong. In 1983, H. L. A. Hart called Alf Ross ‘the most acute and wellequipped philosopher of this school’,5 and it is a fact that Ross’s work and his particular version of Scandinavian realism remain to this day the most influential and widely discussed.
Ross was an exceptionally prolific writer. Well before internationalization became the mantra of the Academy, he published regularly in the most highly esteemed international journals, and he had his central works translated into several languages, including English, German, Italian, and Spanish. Ross travelled to the most prestigious international universities and met with and kept an extensive personal correspondence with some of the most outstanding intellectuals of his time, both inside and outside the legal field. Right up to the present day, Ross’s work remains widely read and studied both inside and outside Scandinavia. Apart from his impact in the Anglophone world, to which we shall return shortly, Ross has been particularly influential in Southern Europe, notably in Italy, Spain, and Portugal, and also in South America, notably, it seems, in Argentina and Chile.6
(ii) Some time out of the limelight
In spite of these solid foundations, it remains the case that Alf Ross, and Scandinavian realism more generally, have come upon hard times, especially during the last two or three decades of the twentieth century. Limiting ourselves for present purposes to the Anglophone world, two factors seem to have contributed to this state of affairs. First, the Scandinavian realists seem to have paid a price for their general philosophical alignments. Unlike their distant cousins in American realism, the Scandinavians are known for taking general philosophical questions very seriously. Thus, the school that came to be known as Scandinavian realism is most appropriately seen as the specific jurisprudential branch of the more general philosophical movement known as the Uppsala School. Besides Axel Hägerström, the Uppsala School is especially associated with the work of Swedish philosopher Adolf Phalén (1884–1931), and it is known for propounding
5 Hart (1983), 13.
6 From the point of view of intellectual history, Ross’s lasting influence in Italian and Spanishspeaking countries is an interesting phenomenon, especially when contrasted with his quite limited influence in countries that are geographically and culturally closer to Scandinavia, like Germany and Austria. One possibility is to see this as a result of Ross’s strong antimetaphysical sentiments and irreconcilable critique of natural law, which seem to have found a more sympathetic audience in the oftentimes anticlerical academic circles that oppose the massive influence of the Catholic church in the aforementioned countries.
a strong empiricist philosophy, which in many ways foreshadowed the views later associated on the international scene with logical empiricism and the socalled Vienna Circle.
On the one hand, this general philosophical orientation towards the Uppsala School probably played a positive role in shaping the Scandinavians’ version of legal realism as a consistently empiricist legal theory, and thereby also in placing it on the general jurisprudential map as a distinct and easily recognizable position. On the other hand, however, this philosophical allegiance may also have limited the movement’s impact in the long run. To illustrate, Hart at one point accused Hägerström of being ‘tortuous and obscure’.7 This may be taking it a bit too far, but it is probably fair to say that in terms of philosophical temperament, neither Hägerström nor Phalén are known for being particularly forthcoming. To a wider jurisprudential audience, it may not after all have seemed worth the considerable trouble it would take to familiarize oneself intimately with that particular philosophical message of the ‘wild prophetic figures’.
Always the opportunist, Ross seems intuitively to have grasped this ‘outreach problem’ connected with Scandinavian legal realism’s reliance on the Uppsala School’s somewhat exotic version of empiricism. After becoming acquainted with the deep congenialities between Uppsala and Vienna, Ross therefore decided, well in advance of writing On Law and Justice, to shift his ground and simply replace the entire underlying philosophical framework. Instead of relying on the general philosophy of the Uppsala School, Ross decided to build his version of legal realism on the apparently less exotic tenets of logical empiricism; tenets which Ross, on his travels outside Scandinavia, had learned were much more influential and widely understood.
This was not merely a strategic move driven by opportunism or eclecticism. The ingenuity and general consistency with which Ross manages to harmonize his legal realism with the views of logical empiricism make it difficult to doubt that his commitment to its philosophical programme is not genuine and deeply rooted. In any event, it seems plausible that the combination of strategic wit and forceful execution helps explain why Ross has become the most widely known member of Scandinavian realism.
From a wider perspective, however, Ross’s philosophical realignment seems to have brought only a short respite. For though logical empiricism was undoubtedly very influential during the early and mid twentieth century, it soon came to lose its momentous influence. In fact, the movement was already waning internationally around the time Ross was writing On Law and Justice. Although the process was never as swift and decisive as is often presented, it is a fact that logical empiricism gradually lost its influence during the second half of the twentieth century, and that it has for some time been considered largely moribund.
7 Hart (1959), 233.
The second reason why Ross and the other Scandinavians appear to have fallen on hard times, at least in the Anglophone world, is related to the first, but it has to do more directly with their legal theory. This aspect concerns a line of critique, originally propounded by H. L. A. Hart, which has been hugely detrimental to the longterm reception of Scandinavian legal realism, and especially of Ross’s work. Hart’s critique is twopronged, consisting, on one hand, of a generic argument directed, it seems, against empirical theories of law as such (including not only Scandinavian but also American legal realism, and even Austin’s version of legal positivism), and on the other hand, of a more specific argument targeting Alf Ross’s version of Scandinavian realism.8 Focusing for present purposes only on their relation to Ross, the soundness of both arguments is, as we shall see, challengeable. However, as a mere matter of intellectual history, it is undeniable that Hart’s arguments have been greatly influential, and that, in combination with the widespread scepticism regarding the general philosophical orientation, these arguments have been responsible for the more marginalized role assigned for a time by many to Ross, and to Scandinavian realism along with him.
(iii) The recent return of Scandinavian legal realism
However, this general sentiment of reserve and scepticism has gradually been shifting in recent years. Increasingly, a number of legal theorists have realized there might be a need to reconsider the arguments against Ross and Scandinavian legal realism that have for so long been considered conclusive. Later in this introduction, we shall look more closely into the reasons underlying this development, but in rough outline the following two factors seem to have been driving the change of sentiment.
First, and focusing here exclusively on Alf Ross, scholars, primarily with the ability to read Ross’s original Danish manuscript of On Law and Justice, Om ret og retfærdighed, have increasingly directed attention to the fact that Hart’s critique seems to be fundamentally mistaken and that these mistakes are due, at least in part, to relatively simple errors in the first English translation. Thus, closer scrutiny of Ross’s writings in Danish has revealed that his realism has sufficient resources to counter those Hartian arguments that have so widely been considered fatal.9
Second, something similar has happened as regards the question of Ross’s general philosophical alignments, though the case here is slightly more complicated, seeming as it does to rely on some measure of rational reconstruction. Increasingly, scholars have pointed to the fact that in spite of Ross himself
8 This latter argument was presented in Hart’s review of On Law and Justice, which he, somewhat misleadingly, called ‘Scandinavian Realism’, thereby conveying the impression that the critique was, pars pro toto, suited to the Scandinavian school in its entirety, cf. Hart (1959).
9 For two recent examples, cf. Eng (2011) and Holtermann (2017).
explicitly building his legal realism on logical empiricism, his legal theory is perhaps not as inextricably tied to this general philosophical programme as commonly thought. Thus, studies have shown that it may in fact be possible, with only relatively minor changes to Ross’s legal theory proper, to realign it with a quite different presentday philosophical movement. More specifically, it seems that it is possible to realign Ross’s legal realism with socalled philosophical naturalism, which is often seen as the theory that has most directly replaced logical empiricism, and which is considered by many to be one of the most viable schools of contemporary philosophy.10
Interestingly, pursuing this track has simultaneously reaffirmed the kinship between the Scandinavian realists and their transatlantic cousins; more specifically because this whole manoeuvre closely parallels the very fruitful exercise known as naturalizing jurisprudence, which was initiated approximately a decade earlier in relation to American legal realism.11 Moreover, the prospects of thus combining legal realism with naturalism in general philosophy has been associated, on both sides of the Atlantic, with recent attempts to combine legal realism with the ongoing empirical turn in legal scholarship under the banner New Legal Realism.12
(iv) The structure of this introduction
These developments form part of the background for this new publication of Ross’s magnum opus On Law and Justice is a milestone in twentiethcentury legal philosophy, and the viability of the legal theory propounded in it makes it natural to ensure the book is available in its entirety to new generations of Englishlanguage legal scholars and philosophers. But even in a new and improved translation, Ross is not always an easy philosopher. In spite of the general clarity of his writing, Ross’s comprehensive text contains tensions and in some places even apparent contradictions. Consequently, and judging from the large commentary on his work, Ross seems to invite diverging and at times even mutually contradictory readings. Before proceeding to introduce and explain in detail the contents of On Law and Justice, it seems prudent to add a few words on the fundamental views that permeate this introduction and structure its argument.
10 Cf. e.g. Holtermann (2014); Spaak (2009). As we shall see later in this introduction, philosophical naturalism in the meaning referred to here is especially associated with the work of American philosopher Willard Van Orman Quine, and his call for a naturalizing of epistemology; cf. notably Quine (1969).
11 The project of naturalizing American legal realism is associated in particular with the pioneering work of Brian Leiter (for an overview, cf. Leiter, 2007b). Interestingly, around the time when the first steps had just been taken to naturalize Scandinavian realism, Leiter independently saw the prospects of exploring possible parallels, remarking that ‘Scandinavian Realism deserves a sympathetic reconsideration, along the lines of what I have tried to do for its (distant!) American cousin’ (Leiter, 2007a).
12 With regard to American realism, cf. e.g. Nourse & Shaffer (2009). With regard to Scandinavian realism, the push towards a new legal realism has been combined with an attempt to broaden out the inspirational heritage both geographically to continental Europe and from a disciplinary perspective to include famous legal sociologists Max Weber and Pierre Bourdieu; cf. e.g. Holtermann & Madsen (2015).
First, the present introduction is based on a reading of Alf Ross’s legal realism as a position in legal theory that is fundamentally distinct from both traditional contenders in the game, i.e. natural law and legal positivism. Importantly, the view is propounded that, on the most consistent reading, Ross’s legal realism is categorically distinct not only from the legal positivism of his early inspiration, Hans Kelsen, but also from that of H. L. A. Hart. While distinguishing thus between Ross and Kelsen is widely accepted, it is more controversial to assert a deep difference between Ross and Hart. But as we will see—both in the remaining parts of the introduction and in Ross’s own text—there are nevertheless good reasons for so doing. Still, the reader should be aware that this view is not uncontested in the scholarly debate.13
Second, although Hans Kelsen will naturally play some role in the following pages, Hart has been assigned a more prominent role, primarily because of his influential critique of Ross’s legal theory. Even if, ultimately, there are good reasons for finding this critique mistaken, it would be facile and misleading to blame this mistake entirely on Ross’s good sense simply being lost in translation. It cannot be denied that Hart’s critique rests on a number of wellconsidered understandable concerns and objections that are invited by Ross’s theory. Heuristically, going through Hart’s wellknown objections provides a framework against which it is helpful steadily to refine the articulation of Ross’s actual theory by seeing the convincing and consistent way in which he anticipated such a line of critique. Furthermore, for the majority of readers this approach will presumably have the benefit of honouring Thomas Aquinas’s dictum of moving from the more known to the less known. Finally, keeping a keen eye on the points of contact between Ross’s legal realism and Hart’s legal positivism is also helpful with a view to better assessing the controversial question regarding the theoretical relation between the two.
2. The contents—Alf Ross’s legal realism
(i) The philosophical project
In order to get the full benefit from reading On Law and Justice, the first question we should ask ourselves is: what is Ross’s philosophical project? What is it that ties this work, and more generally his entire oeuvre, together? What is the essential philosophical challenge that Ross is trying to address? We find the general answer to this question in the philosophy of science—the branch of philosophy that takes science itself as the object of theoretical enquiry. Within
13 Most importantly, Ross himself claimed—in his review of Hart’s The Concept of Law—that Hart’s perception of Ross’s position was mistaken and that, once correctly perceived, it would be clear that there was really no disagreement between them. The case was merely that, for the most part, they were talking about different things (Ross, 1962). Cf. also Svein Eng (2011) for an interesting and thorough argument to the effect that Ross and Hart are essentially in agreement.
this broad field, Ross studies the subfield that one might call the philosophy of legal science, the term legal science primarily (though not exclusively) referring to the doctrinal study of valid law.14 For Ross, the central problem for the philosophy of legal science—the academic discipline whose aim is to describe, interpret, and systematize valid law—is to justify its status as a science. This is primarily an epistemological concern. Ross wants to make certain that the scholarly determination of the legal rights and duties in given jurisdictions, which is the task of the doctrinal study of law, actually represents knowledge and is not merely the expression of the whims of individual jurists, or of those in power. Phrased in philosophical jargon, we can say that Ross tries to answer the question: how is the doctrinal study of law possible as a science?
In focusing on this issue, Ross is in close accordance with his teacher, and the main inspiration of his youth, Hans Kelsen. Kelsen also aimed to justify the doctrinal study of valid law as a science.15 But Ross’s approach to this question is more systematic than Kelsen’s. First, Ross does not approach his project as an ad hoc task specific to the doctrinal study of law and calling for an answer relevant only to this discipline. Instead, Ross sees the problem from a much broader philosophical perspective. He sees the challenge to legal science merely as one special case of what in the philosophy of science is known more generally as the demarcation problem: that is, the problem of how we can generally distinguish between science and nonscience—or, more accurately, between science and pseudoscience.
Nowadays, we see this question in, for instance, the heated debates about movements such as creationism and intelligent design, movements which challenge evolutionary biology on religious grounds; or in relation to socalled climate change sceptics, who challenge scientific consensus on the existence of manmade climate change. In both cases, the key issue of controversy can be boiled down to a special version of the demarcation problem: are the assertions and theories of this or that movement really science, or are they merely pseudoscience? In Ross’s day, the demarcation problem was also a pressing topic, but the fight was fought over different theories and issues. Discussions focused, for example, on whether specific theories such as Freud’s psychoanalysis or Marx’s theory of history were really scientific. Or they focused, more generally, on
14 It should be emphasized that in this introduction, and generally in Ross’s On Law and Justice, the word ‘science’ is used in a broader sense than may be standard to most Englishlanguage readers. In English, ‘science’ is primarily used to denote the natural sciences and sometimes also fields of research that are considered relevantly similar to them, notably through the application of quantitative methods. Hence, economics and sociology are usually counted as sciences, whereas literature studies and history are not. Sometimes, however, ‘science’ is used more broadly, corresponding to the German word ‘Wissenschaft’ (and its equivalents in other Germanic languages, e.g. ‘videnskab’ in Danish). This is taken to include all the academic scholarly disciplines, including the humanities. The German term has the advantage of more adequately delimiting the kind of systematic and critical search for knowledge that usually takes place in an academic setting. As the next pages will show, this extended sense is also the one most fitting to convey Ross’s thoughts.
15 Cf., in particular, Kelsen (1967). As we shall see below, Kelsen was fundamentally unlike the other great legal positivist of the twentieth century, H. L. A. Hart, on this issue.
whether entire academic disciplines such as theology or, of relevance here, the doctrinal study of law deserved to be counted among the sciences—die Wissenschaften.
Second, Ross’s approach is also more systematic than Kelsen’s in terms of the answer he provides. Ross maintains that any workable solution to the specific challenge relating to the disputed scientific character of the doctrinal study of law has to build on a general unified theory about science: about what generally distinguishes science from pseudoscience. At the time of writing On Law and Justice, Ross thinks that this general theory is provided by the then influential philosophical movement known as logical empiricism.16 Logical empiricism is known precisely for its fierce advocacy of a strong, universal criterion that makes it possible to distinguish categorically between science and pseudoscience. In the next section we shall take a closer look at this criterion, and also unfold in detail how Ross applies it in relation to the doctrinal study of law. For now, it should just be emphasized that the significance of this theoretical allegiance can hardly be overestimated if one is to fully appreciate On Law and Justice. The book as a whole is simply best read as a manifesto for an epistemologically sound doctrinal legal science developed on the basis of the criteria for science asserted by logical empiricism.
Logical empiricism is also sometimes referred to as logical positivism and, accordingly, Ross is also often described as a logical positivist. Most commentators agree that there is no principled boundary between these two –isms, and it should not be problematic to speak of Ross in that way. Still, there might be a reason for caution. Ross is also sometimes described as a legal positivist, but this is unfortunate, and it is not unlikely that the partial homonymy plays a role here. First, the term positivism is, as Ross also reminds us, ‘ambiguous. It can mean both “what is building on experience” and “what has formally been enacted” ’.17 Correspondingly, logical positivism and legal positivism in fact refer to two very different theoretical traditions and positions. Second, as seen from Ross’s case, logical empiricism’s general philosophical programme has implications that in key areas contradict the legal positivist interpretation of the doctrinal study of law, at least as this position is most often stated. It is probably no coincidence that two of the bestknown legal positivists, Kelsen and Hart, were not logical empiricists (or even empiricists for that matter). Therefore, even if Ross
16 ‘The leitmotif of jurisprudential realism is the desire to understand legal science in conformity with the idea of the nature, tasks, and method of science which has been developed by modern, scientific philosophy. Several schools of philosophy—logical empiricism, the philosophy of the Uppsala school, the Cambridge school of philosophy, and others—find common ground in rejecting all speculative knowledge grounded in a priori reasoning; in short, in rejecting socalled metaphysics. There is only one world and one type of knowledge. Ultimately, all science is concerned with the same body of facts, and all scientific statements about reality—that is to say, all those statements which are not purely logicalmathematical—are subject to empirical test.’ (See below, pp. 80–1.)
17 See below, p. 118.
at times contributed to the confusion,18 there is good reason to stick strictly to the term he chose for his own theory in the preface to On Law and Justice, i.e. the realistic theory of law.
(ii) The central tenets of logical empiricism
Considering the central role assigned by Ross to logical empiricism, we should first provide a brief account of the fundamental perception of science articulated in this philosophical programme. At the most general level, logical empiricism belongs to the empiricist tradition in philosophy according to which sense perceptions provide the ultimate foundations for knowledge and science. At the same time, however, logical empiricism aligns itself in one crucial regard with René Descartes (1596–1650) who, as a central figure in rationalism, is otherwise traditionally perceived as being starkly opposed to empiricism. The fundamental parallel has to do with the fact that Descartes saw it as the most essential task of philosophy to provide indubitable foundations for knowledge and science. Referring to Archimedes’ saying he needed ‘just one firm and immovable point in order to shift the entire earth’,19 Descartes was searching for ‘just one thing, however slight, that is certain and unshakeable’.20 Descartes famously thought he found such an Archimedean point in his proposition cogito ergo sum, I think therefore I am. This sentence, claimed Descartes, ‘is necessarily true whenever it is put forward by me or conceived in my mind’.21
Proponents of logical empiricism were not particularly impressed with Descartes’s answer. Qua empiricists, they had both semantic and epistemological issues with his rationalistic strategy of constructing knowledge and science from a foundation of selfevident truths of reason. However, they did not disagree with Descartes’s basic idea that knowledge should be certain and indubitable, and that it should therefore rest on rocksolid foundations. They only maintained that these foundations should instead be provided by elementary sense perceptions.
Against this background, the logical empiricists established the socalled verification principle according to which any given proposition—unless an analytical truth—can only be meaningful if it can be proven (verified) empirically, that is, by reference to elementary sense perceptions, either directly or indirectly by
18 Thus in, e.g., Ross (1961), where Ross seems to argue that we should consider legal positivism to harbour the same ambiguity as the term positivism does. However, for the reasons generally propounded in this work regarding the categorical differences between traditional legal positivism and Ross’s own logical positivismcumempiricismbased legal theory, it seems more fitting to say that legal positivism harbours only one of the meanings of positivism, i.e. ‘what has formally been enacted’.
19 Descartes (2013), Second Meditation: The nature of the human mind, and how it is better known than the body.
20 Descartes (2013), Second Meditation: The nature of the human mind, and how it is better known than the body.
21 Descartes (2013), Second Meditation: The nature of the human mind, and how it is better known than the body.
inference from such perceptions via the application of logic. This principle played an immensely important role in relation to the movement’s approach to the demarcation problem. The members of the Vienna Circle came to see the verification principle as the criterion to determine whether something can potentially count as belonging to science or not. Any given proposition—or, more generally, any given theory—can only count as science if it can be verified empirically. If the propositions of a given theory cannot accommodate this particular criterion they will, according to the logical empiricists, be meaningless. The theory will be deprived of its claim to being scientific, and categorized instead as pseudoscience— or metaphysics, to use the favourite pejorative term of the logical empiricists.
This outline of logical empiricism is sufficient for now, but, as we shall see below, there is more to say about both the verification principle—in particular in relation to the strictness with which the demand for verifiability is interpreted—and the logical empiricists’ perception of discourse that cannot satisfy the verification principle.
(iii) Turning to legal science: the epistemological challenge outlined
The ability to satisfy the verification principle is the generic notion of science that Ross brings to the table when he turns to legal science to solve his main problem in On Law and Justice: how the specific study of law is possible as a science.
Ross outlines the challenge as follows. Like most other legal theorists, he considers law to consist of a body of rules, that is, of norms prescribing behaviour. Linguistically, Ross categorizes such norms as socalled directives. Directives are usually (though not always) identifiable by normative words like ‘ought’, ‘shall be’, ‘may’, ‘must’, etc. Furthermore, Ross observes that from a linguistic point of view, sentences commonly found in traditional scholarly legal doctrinal work appear to be no different from the directives of legal rules: they apparently prescribe behaviour using the same kind of deontic markers. Thus, virtually all textbooks and research articles in law speak straightforwardly of normative phenomena like rights and duties.
For purposes of illustration, Ross picks a random sentence from a random Danish textbook in law, the following sentence from Enkelte Kontrakter (Individual Contracts) by Professor Henry Ussing, p. 116: ‘The acceptor is obligated to pay the bill of exchange on the due day for payment, cf. § 28 (1) Danish Bill of Exchange Act.’22 From an epistemological perspective, the problem with a completely ordinary legal doctrinal proposition like this one is that it is not immediately obvious how the existence of a normative phenomenon like an obligation can possibly be reduced to solid sense data:
But what is an ‘obligation’ and how can one empirically determine if it has arisen? The acceptance as such, accomplished by drawing some ink
22 See below, p. 14.
lines on a piece of paper, does not, among its observable consequences, seem to have one that can be called ‘obligation’. (cf. p. 14.)
It is difficult to imagine how any sense data could possibly verify such an obligation. Regardless of how one might approach this challenge, one seems invariably to be caught up in a naturalistic fallacy—in a logically unwarranted inference from is to ought.23
(iv) Critiquing the tradition
In attempting to overcome this challenge, philosophers of law have traditionally pursued two different tacks, natural law and legal positivism, respectively. Notwithstanding the tangible differences between these two approaches, they share in common the attempt to save the specific ought of the scientific study of legal doctrine. Furthermore, as Ross sees it, they both try to save this ought by demonstrating how all the individual theoretical statements about the validity of individual legal rules can be derived, ultimately, from secure and indubitable foundations in the shape of some kind of foundational norm. Natural law and legal positivism only differ with regard to the specific character of these foundations and the method of their identification.
In light of these commonalities, Ross categorizes both approaches as versions of what he calls legal idealism—specifically as substantive and formal idealism, respectively. As we shall see, Ross is profoundly sceptical about the prospects of both approaches. By lumping together natural law and legal positivism as two kinds of idealism, in contradistinction to his own legal realism, he is also expressing this scepticism terminologically.
Natural law—or substantive idealism—is the first candidate Ross considers. It is also his favourite whipping boy, whose alleged failure he never tires of exposing. In Ross’s interpretation, natural law pursues a rationalistic strategy in so far as it tries to derive the validity of the statements made in the doctrinal study of law from a foundation of selfevident truths of reason. More specifically, natural law tries to derive this validity from a basic intuition or idea of justice to which we all, qua rational creatures, have access and can assent. Ross outlines this natural law conception of legal science as follows:
The specific idea manifesting itself in the law is the idea of justice. The idea of justice not only establishes an ideal against which positive law can be measured: it also constitutes the law, that is, it is that principle inherent in the law which endows the law with binding force or validity as law. (See below, p. 79.)
23 The term ‘naturalistic fallacy’ was introduced by G. E. Moore (1903) but the underlying problem was first famously addressed by D. Hume (Hume et al., 1978).
In other words, if the acceptor is ‘obligated to pay the bill of exchange on the due day’ it is ultimately because it would violate the idea of justice if this were not the case.
For Ross as a logical empiricist, however, the problem with such intuitions is that they, unlike elementary sense data, are necessarily private. Intuitions can, and patently often do, vary from one person to the next. As Ross puts it in one of his most quoted phrases:
Like a harlot, natural law is at the disposal of everyone. There is no ideology that cannot be defended by invoking the law of nature. And indeed, how could it be otherwise when the ultimate basis for every natural law is to be found in a private (intrasubjective), direct insight, a selfevident contemplation, an intuition. Cannot my intuition be just as good as yours? Selfevidence as a criterion of truth explains the utterly arbitrary character of metaphysical assertions. It raises them above any form of intersubjective control and opens the door wide to unbridled fantasy and dogmatics. (See below, p. 338.)
The doctrinal study of law is therefore in deep trouble qua science if it were to follow the road suggested by natural lawyers. From the point of view of empiricism, assigning the role of an Archimedian point to an idea of justice, however conceived, will inevitably condemn the entire doctrinal study of law to a fate as pseudoscience, or, as Ross and the Vienna Circle would prefer it, as metaphysics. This rather fierce natural law critique is a wellknown and oftcited side of Ross’s work. But Ross is in fact equally dismissive of (even if considerably less hostile towards) the parallel attempts of legal positivism—or formal idealism to save the doctrinal study of law as a science. To be sure, Ross certainly does appreciate that legal positivism, often with equal fierceness, rejects the attempts of natural law to build legal science from moral foundations. But as Ross sees it, the legal positivists nevertheless end up taking essentially the same flawed foundational strategy. Thus, legal positivism attempts in much the same way as natural law to derive the validity of individual normative doctrinal statements, for instance about the obligations of acceptors of negotiable instruments, through a hierarchy of norms leading back to one foundational norm (in Hans Kelsen’s terminology, the Grundnorm; in H. L. A. Hart’s, the rule of recognition). The school only insists that this foundational norm, which provides the ultimate justification for the doctrinal statements of legal science, can only be that norm which, as a historical fact, happens to be efficacious in the jurisdiction under scrutiny—that is, entirely regardless of whether one might find this norm morally reprehensible.24 It is in this sense that legal positivism is a purely formal kind of idealism as opposed to the substantive idealism of natural law.
24 In On Law and Justice, Ross is primarily referring to Hans Kelsen’s Grundnorm. In terms of the basic legal positivist verification procedure for any individual statement of legal validity made in the doctrinal study of law there is, however, no relevant difference between the role of Kelsen’s Grundnorm and Hart’s rule of recognition:
According to Ross, however, this legal positivist attempt to identify an Archimedian point for scientific statements about valid law is also fundamentally flawed—and in much the same way as natural law. The ultimate problem is that the whole exercise necessarily builds on a naturalistic fallacy, an inference from is to ought, right at the foundations: from the efficaciousness of the foundational norm to its validity.25 Absent this fallacious inference, it is possible to construct an infinite number of foundational norms, which in turn justify an infinite number of sets of legal rules. Legal positivism leaves us with no uncontroversial criterion we can use to choose between them. In other words, and extending Ross’s infelicitous language, it is not only natural law but also legal positivism that is ‘like a harlot, at the disposal of everyone’.
(v) Considering austere behaviourism: Hart’s first challenge
This serves to pose the philosophical challenge that Ross is trying to solve at its most radical: if we are forced, on the general logical empiricist premises adopted by Ross, to disregard the standard solutions proposed by the two traditional contenders in legal philosophy—natural law and legal positivism—is there, then, any hope that a genuine legal science is possible at all? What remains of the doctrinal study of valid law if we are barred—whether on the grounds of the evidentiary fragility of intuitive notions of justice, or on the grounds of the naturalistic fallacy—from making any reference to foundational norms?
Against this background, it could seem from Ross’s empiricist starting point that the only way forward lies in turning legal science into a strictly behaviourist discipline, one that limits itself exclusively to observations of regularities and subsequent predictions of judicial behaviour. This kind of austere behaviourism
The sense in which the rule of recognition is the ultimate rule of the system is best understood if we pursue a very familiar chain of legal reasoning. If the question is raised whether some suggested rule is legally valid, we must, in order to answer the question use a criterion of validity provided by some other rule. Is this purported bylaw of the Oxfordshire County Council valid? Yes: because it was made in exercise of the powers conferred, and in accordance with the procedure specified, by a statutory order made by the Minister of Health We may query the validity of the statutory order and assess its validity in terms of the statute empowering the minister to make such orders. Finally, when the validity of the statute has been queried and assessed by reference to the rule that what the Queen in Parliament enacts is law, we are brought to a stop in enquiries concerning validity: for we have reached a rule which, like the intermediate statutory order and statute, provides criteria for the assessment of the validity of other rules; but it is also unlike them in that there is no rule providing criteria for the assessment of its own legal validity. (Hart, Raz, & Bulloch, 2012, 107, all but first emphasis added.)
25 Strictly, both Kelsen and Hart deny that they infer the validity of the Grundnorm/rule of recognition from its efficaciousness. Kelsen famously, though somewhat enigmatically, insists that efficaciousness is a conditio sine qua non, not a conditio per quam for the validity of the Grundnorm (2009), 119. Hart takes a somewhat different tack, dodging the question of validity at the level of the rule of recognition altogether. Instead, he speaks merely of a ‘presumption of existence’ of this rule and displaces the issue of validity to the level of all the primary rules; i.e. to those rules ultimately verified by the rule of recognition (Hart, Raz, & Bulloch, 2012, 108–10). However, this cuts no ice with Ross, whose epistemological agenda seems only to leave two options: either there is an inference to the first claim of validity, in which case there is a naturalistic fallacy; or there is no inference, in which case the first claim of validity is an arbitrary postulate. Both are equally unsatisfactory from an epistemological point of view.
finds its classic statement in the famous quip by the early American legal realist Oliver Wendell Holmes, Jr., that ‘[t]he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law’.26 It has often been suggested that Ross’s adherence to logical empiricism necessarily implies a similar, radically behaviourist theory about the law, a fact that in the broader picture has simultaneously been taken to explain the kinship between American and Scandinavian legal realism.
Many have accused behaviourismcumlegal realism of irredeemable failure as a theory of law and no one probably with greater success than H. L. A. Hart. Hart’s celebrated critique of extreme empiricist approaches to law has several facets and although he indubitably did have Ross in mind with some of the arguments, it is more doubtful with others.27 Regardless of Hart’s intentions, it is a fact of intellectual history that his argument has often been read (also) as a critique of Ross, and that, as such, it has had a lasting negative effect on the AngloAmerican reception of Ross’s work. But as we shall see, even if there may be legal theorists to whom Hart’s critique is relevant, there are good reasons for resisting it in relation to Ross’s specific theory.
In a nutshell, Hart accuses ‘the predictive theory’, behaviouristic realism, of ignoring, or at least significantly distorting, the normative aspect so characteristic of law. More specifically, he accuses these approaches to law of being incapable of identifying and explaining the distinction between merely regular social behaviour in groups (for instance, when a group has the habit of going to the cinema on Saturday nights) and such behaviour that is also rulegoverned (for instance, when a group has a rule that a man’s head is to be bared on entering a church).28 According to Hart, these two kinds of social phenomena differ only by the existence exclusively in the latter of what he calls the internal aspect of social rules. Unlike the external aspect (the regular uniform behaviour), this internal aspect remains empirically unobservable because it has to do with the specific critical reflective attitude, which group members exhibit in compliance with or in deviation from the rules exhibited by other members of the group.29 The legal scholar who confines herself to observations of regularities of behaviour will therefore, according to Hart, necessarily miss out on the very feature that defines the object of inquiry as law:
One of the difficulties facing any legal theory anxious to do justice to the complexity of the facts is to remember the presence of both these points of view [the internal and the external, respectively] and not to define
26 Holmes (1897), 461.
27 Hart initially outlined his critique of extreme behaviourism in his review of On Law and Justice (Hart, 1959). However, in his main work, The Concept of Law, Hart ascribed the allegedly problematic behaviouristic views more diffusely to a position anonymously called the ‘predictive theory,’ and he even accredited ‘a whole school of legal theory in Scandinavia’ for having articulated a line of argument against this predictive theory that is very close to Hart’s own (Hart, Raz, & Bulloch, 2012), 10–11.
28 Cf. Hart et al. (2012), 55. 29 Cf. Hart et al. (2012), 57.
one of them out of existence. Perhaps all our criticisms of the predictive theory of obligation may best be summarised as the accusation that this is what it does to the internal aspect of obligatory rules.30
(vi) . . . and Ross’s anticipation of it: the necessity of ‘an introspective method’ Hart is undoubtedly on to an important truth here—about the character of law and consequently also about the scientific study of it. But at least with regard to Ross’s version of legal realism, it is ironic that these considerations have come to be considered a virtual knockdown argument against him. The reader of On Law and Justice will quickly learn that Ross is by no means a stranger to this line of thinking. On the contrary, the first two chapters already make it painstakingly clear that rather than embracing such an external perspective, Ross actually warns strongly against it, and he considers strict behaviourism a methodological culdesac for legal science.
In fact, in so arguing, Ross even uses the very same analogy of an outside observer of a game that Hart later adopts as his own. Thus, with the example of chess, Ross describes the inaptitude of behaviourism in grasping the rulegoverned character of a game in the following way:
One could perhaps think of proceeding in a behaviourist manner, that is, restricting oneself to what can be determined by external observation of the actions in order to find certain regularities. However, in this way we would never gain an insight into the rules of the game since we would not be able to distinguish actual custom, or even regularities conditioned by chess theory, from the actual rules of chess. Even after having watched a thousand games it would still be possible to think that it was against the rules to open with a rook’s pawn.31
The unmistakable conclusion that Ross draws from this is that the scientific study of law has to ‘adopt an introspective method’,32 it has to refer to the communal psychological processes, thoughts, and ideas of the judicial actors in the legal field:
A behaviouristic interpretation, then, is bound to fail. To understand and predict judicial behaviour can only be achieved through ideological interpretation, that is, by means of the hypothesis about a certain ideology which animates the judge and motivates his actions . . . To express the same idea in another way: the law presupposes not only regularity in the judge’s pattern of behaviour, but also its being rulegoverned. The concept of scientific validity contains two elements: partly the outwardly observable and regular compliance with a certain
30 Hart et al. (2012), 91. 31 See below, p. 23.
32 Ibid.
pattern of behaviour, partly the experiencing of this pattern as a socially binding norm.33
In other words, rather than formulating a critique of Ross, it seems that on this point Hart is in fact only repeating (and by an irony of intellectual history getting the credit for) a warning against behaviouristic excesses, which a few years earlier Ross had already carefully articulated in his own attempt to develop a sufficiently sophisticated and nuanced version of legal realism.
(vii) A betrayal of empiricism? Remembering the left wing of Old Vienna
In spite of these (and several similar) passages in On Law and Justice, it is nevertheless understandable that Hart and others arrived at the conclusion that Ross overlooks the internal aspect of legal rules. It is tempting in particular to disregard or downplay the textual evidence to the contrary as one might think that, in thus advocating an introspective method, Ross comes dangerously close to contradicting his own logical empiricist premises. This empiricist programme is after all known for its strong emphasis on the possibility of achieving intersubjectively available verification. One might reasonably raise the point that it is not altogether clear how introspection should be able to accommodate this demand.
This in turn raises two concerns. First, whether Ross’s embrace of introspection instead makes him emerge as a confused and selfcontradictory thinker who as a legal theorist blatantly violates the logical empiricist tenets to which he claims to subscribe in general philosophy. Second, in so far as it is possible to salvage a consistent interpretation of Ross’s legal theory, one might ask whether this position does not in effect coincide with Hart’s wellknown version of legal positivism—in which case, one might ask whether reading Ross brings anything substantially new to the table. (Although, considering chronology, one might in all fairness say that the question should be reversed: we should ask whether reading Hart brings anything new to the table.)
As we shall see, both these concerns can in fact be allayed. Still, it is a fine line Ross is trying to walk. The strong exegetic temptation is either to push Ross all the way out into the scientistic camp of austere behaviourism, or to call off the general attack on doctrinal scholarship and pull him back into the familiar surroundings of traditional legal positivism. This is partly Ross’s own fault; he does not always express himself with sufficient care and clarity. But, as we shall see, there is indeed room for an interpretation that outlines a consistent position that steers clear of the two extremes. In fact, this is precisely what makes Ross’s version of legal realism so interesting.
In order to see this distinct realist position clearly, we should remind ourselves that the Vienna Circle was never completely uniform as a theoretical
