What Is Law?

Ross, like many other legal theoreticians, used the game of chess as his example. He asked: What does it mean that, during the game, a certain rule of chess is a valid chess norm? The answer to that question opens up the nature of a game of chess as a normative phenomenon.

In the concept of validity two points are involved: partially the outward observable and regular compliance with a pattern of action, and partly the experience of this pattern of action being a socially binding norm (Ross 1958, 37).

Ross continues (in Danish) that not every externally (outward) identifiable custom of the chess game is an expression of a valid chess norm. The chess norm, as well as a legal norm, has a double function, first, an external pattern of action and, second, an internal motivational basis for the player, or in the case of law, for the judge (Ross 1953, 37, 50).

The distinction is crucial in Ross' case. If someone who observes a game of chess from the outside tries to understand the players' moves, he must connect this activity to certain rules. The player acts in the way he does because he has to, since if he does not, he will be excluded from the game. The game is conceptually defined by the rules. The same goes for any other game. External understanding, however, presumes a previous “internal” understanding of the subject.

As we saw in Chapter 5, Ludwig Wittgenstein defended the same idea that with­out an internal point of view, it would never be possible to understand an entirely foreign culture, since we cannot know anything about rules that are completely strange to us. The same holds true as far as the chess game is concerned. The rules of the game make the player's actions intelligible to someone looking at the game from outside. The rules express an abstract normative idea content, which can be used as an interpretative or explanatory scheme.

It is important to make a difference between (at least) three different steps or layers of internal aspect. An internal point of view may mean understanding the object, such as the other part, or acceptance of the other part, or finally a commitment to the other part's view or perspective. The more internal information one has available, the deeper one understands the object. However, even a perfect understanding does not mean perfect or even partial acceptance. Further, a full understanding does not necessarily result in a commitment to the fully understood object. The intention to understand something X is not identical to the intention to commit to X.

In the case of law, that interpretative scheme makes it possible to understand legal phenomena (legal life in Rossian terms) as a meaningful totality, and, at least to some extent, predict the future legal phenomena - that is, legal life (Ross 1958,42).

From the internal point of view, the rule is no longer an interpretative scheme. As distinct from the outsiders, the player does not try to understand his own or the other player's actions. He simply plays and tries to do so in accordance with the rules in order to guarantee his participation in the game. Here, the chess game example provides a model with which to understand the validity of a legal norm as well.

As we have already seen, legal rules have a dual function, the external and the internal ones, depending on the point of view one takes.

Dealing with the doctrinal study of law, Ross establishes as his point of reference the proposition A as follows (Ross 1958, 38):

A = D is valid (Danish) law

In which, for example

D = § 28 of the Law on Bills of Exchange.

A similar argument could naturally be made about any other possible statute in any other national law. The proposition A is, according to Ross, a typical legal proposition. On exactly which conditions is this proposition true in the Rossian sense?

Ross first reminds us that a legal norm, just like a chess rule, forms an inter- subjective meaning and motivation context regulating the behaviour as a shared ideology adopted by the majority of judges. Rules are followed because they are experienced as binding. In the judge's case, the internal aspect means a commit­ment to a relevant normative ideology that forms the basis and framework for the adjudication.

In this respect, Ross was a typical Scandinavian realist. He thought that a rule that is experienced as legally binding provides the judge with a model for behaviour. The model motivates the judge, as does the rule in the chess game as far as the player is concerned. For the judge, the rule that serves as an interpretation or explanation scheme for an outsider is the basis of motivation. However, the task of the doctrinal study of law is not to make empirical psychological investigations into the process of motivation.

The motivation to follow the rule is not based on need calculations or other such matters as interests. Instead, the normative ideology of judges gives impulses to a person who experiences that ideology as a kind of social pressure. This makes him internalise the ideology spontaneously, so that he commits to the norm at issue independently of, or even against, external expectations.

The judicial ideology is not well articulated but assumed as a kind of “silent and shared commitment”. However, it does give institutional support for the recognition of the validity, similar to the Hartian rule of recognition. That rule of recognition very seldom makes explicit which norm is valid at a given time. The same holds true as regards the judicial ideology. It is a complex totality, with the result that different judges may have, and actually do have, different conceptions of the validity of norms. Nonetheless, this non-coherence does not make the judicial ideology as a rule of recognition dispensable or lessen its significance as the foundation of law.

Ross is careful not to confuse what is with what ought to be, and in no way belittles the strength of Hume's guillotine. One cannot draw something that ought to be from something that is. Hence the judges are not supposed to draw normative (ideological) consequences from the fact of what they are actually doing. Ross only emphasises that what is truly felt as binding must be internalised. The same problem was pondered by G. H. von Wright in his theory of action. For him, one of the forms of activity is “internalised” action, such as our socially internalised habit of stopping at a red light. In those cases, it is unnecessary to ask what an individual intended (wanted) to do; the reference to internalised behaviour is enough.

However, in this phase of his career Ross was more interested in the method of the doctrinal study of law than the deep structure of law. Therefore, the core of his theory concerns the question: What is the assertion A = (D) is valid (Danish) law about? This question is crucial with regard to the scientific status of the doctrinal study of law. In the simplest possible terms, Ross' answer is: The assertion A is a prediction. The real meaning of the content of the assertions on valid law is a prediction concerning future social events.

According to Ross, the doctrinal study of law never looks at the past, to history, but at the future, and so the legal research should never be interested in the court's past behaviour de facto. This is the case despite the fact that, to a large degree, it has to base its predictions on the past or previous behaviour of the officials.