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Hägerström's Philosophy of Law

  • John Passmore (a1)

In what it will be convenient to call “the Scandinavian school”; of jurisprudence, Hagerstrom is clearly the master. But his leadership is of a somewhat special kind. For all that he wrote a large book on Roman law, Hägerström was trained as, and continued to be, a philosopher, not a jurisprudentialist or a sociologist. His essays on law and morals are ancillary to his main purpose: to destroy transcendental metaphysics. The epigraphhe chose tohead his contribution to Die Philosophic der Gegenwart in Selbstdarstellungen was uncom-promising: “Praeterea censeo metaphysicam esse delendam.” If, in his published work, he to so considerable a degree concentrated his attention on ethics and jurisprudence, that is because he took them to be a particularly rich source of metaphysical mystery-mongering. Through a study of men's moral and legal ideas, Hägerström thought he could bring out the sources, the defects—and even, in a way, the strength—of metaphysical thinking.

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page 143 note 1 Der römische Obligationsbegriff im Lichte der allgemeinen römischen Rechtsanschauung (Vol. 1, 1927; Vol. II, 1941).

page 143 note 2 Vol. 7, 1929, pp. 111–59.

page 143 note 3 He applied his general ideas to physical science, however, in his Das Prinzip der Wissenschaft (1908).

page 143 note 4 The essay which relates most closely to a specific point in law is his The Conception of a Declaration of Intention in the Sphere of Private Lam, which was first published, in Swedish, in 1935, and is reprinted as the fifth essay in Hägerström's Inquiries into the Nature of Laws and Morals (ed. K. Olivecrona, trans. C. D. Broad, 1953). Unless the contrary is indicated, my page references to Hägerström are to this volume.

page 143 note 5 Mentioned in this particular order, because Olivecrona was actually a pupil of Lundstedt's. Ross, however, refers in his book only to Hägerström, not to Lundstedt or Olivecrona. I have made little use of Lundstedt's book, partly because it is written in a variety of English so peculiar as to be almost entirely unintelligible.

page 144 note 1 Thus Jerome Hall's recent criticism of the Scandinavian school in his “Reason and Reality in Jurisprudence” (Buffalo Law Review, Vol. 7, No. 3, 1958, pp. 372–80) misses its target, just because he has failed to refer back beyond Ross, his principal source, to Hägerström. Thus, when criticizing Ross, Hall writes that “if disinterested attitudes are wholly factual, there still remains the problem of getting from that existential datum to the realm or ‘illusion’ of validity” (p. 376), Ross would certainly reply that this problem had already been solved by Hägerström.

page 144 note 2 So far he belonged to the general neo-Kantian movement of his times. He does not explicitly refer to such fellow neo-Kantians as Lange, but he must have felt their influence—and, either independently or through their writings, the influence of British empiricism. The fact remains that the ambit of his thinking is German; British readers may sometimes wonder what the fuss is about because, with their utilitarian tradition, they have rarely taken seriously the distinction between the “normative” and the “factual”—the realm of values and the realm of facts—which runs through so much German ethical and legal philosophy.

page 145 note 1 This review is translated as essay IV (pp. 257–298) in Inquiries. With much of Kelsen's work—and in particular his criticisms of Austin—Hägerström is in very great sympathy. He partscompany with him, however, as soon as Kelsen embarks upon metaphysics.

page 145 note 2 Hauptprobleme der Staatsrechtslehre (1911), p. 105, as translated by Broad in Hägerström's Inquiries, p. 268.

page 150 note 1 Compare Broad C. D.: “Hägerström's Account of Sense of Duty and Certain Allied Experiences” (Philosophy, Vol. 16, No. 97, pp. 99113).

page 152 note 1 Confusion may be caused by the use of the phrase “legally binding” in relation to contracts. To say they are legally binding is different from saying that the law to which they conform is binding upon us. We could, in principle, admit that the contract is a binding one, i.e. is good in law, and yet reject the claims ofthe law to bind us. The question “does this conform to law?” is a different question from “shall I obeythe law?” The second sort of “legal bindingness” is the sort which cannot be reduced to susceptibility topenalty;the first sort can be.

page 153 note 1 Of course, it was no news that law, even Roman Law, had grown out of ritualistic practices, but Hägerström thought that these practices exercisedan influence at a much later date than was commonly supposed, that they were powerful ingredients within conceptions like ius and dominium. His conception of magic derived from Fraser. By “magic” he means a belief in the power to influence the course of events by means other than natural causality, and especially by the use of special forms of utterance and ritual. Of course Hägerström does not believe that there really are such powers; he is concerned, only, with the belief that there are.

page 153 note 2 The transition, we might say, is from the “And the Lord spoke unto Moses saying” of Leviticus via “Be it enacted by the Queen's most excellent Majesty” to doctrines that “the people” or “the State” command the laws.

page 154 note 1 His criticisms appear in a number of Danish essays and books. I know them only through Lundstedt's reply (Legal Thinking Revised, pp. 171–80).

page 155 note 1 This interpretation of Hume is more fully worked out in my Hume's Intentions (1952).

page 156 note 1 Preface to Inquiries, p. 23.

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