Alf Ross and the Scandinavian Realism

The positivistic model defends the separation thesis, according to which there is no necessary connection between law and morals. Let us now have a closer look at the problems that follow from this thesis represented by, for instance, Alf Ross.

Alf Ross (1899-1979) was, without a doubt, one of the greatest Scandinavian, and even European, legal thinkers of the 20th century. He was like a tall oak, in the shadow of which only a few smaller plants could persist. In the Nordic countries he is on an equal standing with Axel Hagerstrom, whose philosophy also provided Ross with his first intellectual home. In this spirit, Ross took a strong stand on the normative nature of morality (and valuations) in his writings of the early 1930s. According to him, things such as moral obligations are only expressions of a sense of duty. Due to this background, we already have good reason to connect Alf Ross with the intellectual legacy of the Scandinavian realism.

Still, to understand Ross and his contemporaries, we must remember that Ross also wrote in the pragmatic tradition beginning in Denmark from Vilhelm Oerstedt and was carried on in the works of, for instance, Henry Ussing and Fredrik Vinding Kruse. As we will see later on, Alf Ross was a deeply Nordic thinker. Connecting him, for example, to the “robust predictionism” represented in the extreme forms of American realism (pragmatic instrumentalism) is a complete distortion of the back­ground to his learning and his basic jurisprudential commitments (Hart 1983, 161; Lagerspetz 1995, 107, 128). On the other hand, the Scandinavian version of realism found daylight at a time when the optimist view as regards the social engineering conquered the Western mind.

As regards Alf Ross and his thoughts on the doctrinal study of law, we must be careful to separate his two “roles”. First, the analytic Alf Ross, whose findings were elaborated on in the Nordic countries by the so-called analytic school of the doctrinal study of law (Ross 1958, chapters V-IX; Ross 1957, 812), and the second Ross under closer scrutiny here-i.e., the (legal) realist Alf Ross (1946,1953/1958). This side of Ross' thinking has never really found its place in the Nordic countries.

What Alf Ross was interested in as a realist was the nature of the scientific doc­trinal study of law. In order to be a part of science, the propositions should (at least in principle) be true or false in the same way as those of science in general. Ross himself formulates his scientific programme as follows:

The leading idea of this work is to carry, in the field of law, the empirical principles to their ultimate conclusions. From this idea springs the methodological demand that the study of law must follow the traditional patterns of observation and verification which animate all modern empirical science; and the analytical demand that the fundamental legal notions must be interpreted as conceptions of social reality, the behavior of man in society, and as nothing else (Ross 1958, xi).

Alf Ross was not a realist only due to the influence of Axel Hägerstrom, even though Hägerstrom's shadow was cast on the young Ross. Actually, Alf Ross' path to Hägerstrom went through Hans Kelsen. Ross' book “Theorie der Rechtsquellen” (The Theory of the Sources of Law) is strongly marked by Hans Kelsens’ thoughts, even to the point that Ross's countryman, Vinding Kruse, among others, criticised him for being too Kelsenian. It is apparently this very criticism that led to Ross finishing his dissertation in Uppsala under the guidance of Hägerstrom.

This is also how Ross was drawn to the camp of Scandinavian realism, even though he did this in a characteristic way. It is also interesting to note that in the introduction to the work Theorie der Rechtsquellen, Ross actually disassociates himself from the central arguments of his own book and, at the same time, from the Kelsenian thinking to a great deal. The introduction is thus something of a path­way from the young Ross to a more mature character. The most significant and influential work Ross published on the theory of the doctrinal study of law was “On Law and Justice” (1958; in Danish, Om ret og retfaerdighed 1953). The English version is a partially rewritten and shortened version of the original text of 1953. That is the reason why Danish references are also used in the following, in a context where there is a danger of misunderstanding the original idea.

Alf Ross himself did not fully agree with the English translation quite contrary to the Spanish version (translated by Genaro R. Carrio). Aleksander Peczenik as my collaborator, I have tried to make some corrections to the inaccuracies of the English version in Ross' favor, so this theme will not be discussed at any greater length in this context (Aarnio and Peczenik 1985, 127). However, the original Danish text has to as large extent as possible been used as the basis of the following analysis.

“On Law and Justice” is no longer a pure example of the Uppsala school. Its author also shares the main ideas of logical empiricism and the so-called Vienna circle, which is why the work must be evaluated against the scientific background of its time. Before we get better acquainted with the realist-Ross of this phase, there is reason to make a brief excursion into legal theory in general.

According to Ross, the terms “legal theory” and “jurisprudence” literally refer to theory about law. When interpreted like this, legal theory can be (1) theory about the legal system - that is, the structures norms, and concepts, (2) theory about the

application of law (adjudication), (3) theory on legislation, or (4) theory about legal research (the doctrinal study of law).