Ross and Hermeneutics

This very element in the Rossian prediction theory necessarily leads to a non­positivist final conclusion: The doctrinal study of law is interpretative, or if preferred, hermeneutic, and not empirical as to its nature.

This normativity contains the stumbling block of every realist legal theory, including Alf Ross' model, even though he openly accepted legal policy - senten- tiaferenda - as a part of the doctrinal study of law (Ross 1958, 46). Still, he also wanted the doctrinal study of law to be something “more”- i.e., cleaned, especially from the moral standpoints. Following this intention, Ross happened to give the doctrinal study of law a mask that concealed the actual research practices. As has been repeatedly emphasised, the judicial ideology is (partially) comprised of non- empirical source-material as well as the standards by which to use it. The scholar dealing with the source-material cannot thus avoid choices. These choices are based on certain priorities, which, in their turn, presuppose, among other things, the use of moral standards. The common internal point of view shared by the scholar as well as the judge thus necessarily leads to the conclusion that the Rossian predictions are actually nothing more than pseudo-predictions.

After the manuscript of my book was finished, Svein Eng published an excellent analysis concerning the comparison between Ross' “On Law and Justice” and Hart's concept of law. Unfortunately, Eng's analysis could not be used for my purposes (Eng 2011).