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SCANDINAVIAN REALISM

PART II ALF ROSS


DIANA

Alf Niels Christian Ross


(June 10, 1899 August 17, 1979)
Born in Copenhagen, graduated from high school in 1917 Danish philosopher, lawyer , professor of law in the University of Copenhagen Among his main works are On Law and Justice and Directives and Norms opposes natural law-approaches influenced by logical positivism and therefore rejects metaphysics Tries to explain law as a social fact in a positivist way (believes in law as it is, and not what it ought to be), and the normative quality of law psychological terms.

Analogy : Chess Game


Views from the viewpoint of a 3rd person (observer). No reality apart from the experience of the players. The moves mean nothing. the rules are seen as directives which are accepted by both players as socially binding. The effectiveness of the rule can be established by observation Distinguishes between legal rules and rules of skill (a bad move may still be a permitted rule) Addresses why rules are felt to be binding. Adopts the introspective method whereby a quality of law can be understood through psychological terms

The internal aspect provides reason for following the rule and a reason to criticize those who deviate from it.

The internal aspect provides reason for following the rule and a reason to criticize those who deviate from it.


law produces psychological feelings of compulsion (the feeling of being bound) for a judge because he has accepted the sources of law, i.e he has a feeling of duty, and for the public due to the fear of sanctions and belief that they should obey it. However, Ross maintains that laws exist without a sanction; therefore we must take the position that legal rules are directed to those in authority (i.e direction given to a judge to order death penalty for a person who has committed murder) and a citizen knows that it is wrong to commit murder. Law is concerned primarily with the exercise of force and therefore is addressed to officials to order the application of that force.

Rules & Norms




Rules act as schemes of interpretation for particular actions and enables explanation and prediction of judicial behaviour. A norm is a directive which corresponds in a particular way to certain social facts .

A norm is valid if a prediction can be made that a court will apply it.


Valid norm= followed + felt to be binding. a valid law therefore is that set of normative ideas (norms) which can be used to interpret law in practise. (in other words valid law enables the prediction of the judge behaviour)

The degree of validity of the norm depends on the degree of predictability.


(>high degree of predictability > degree of validity). This is known as the verifiability principle


Psychological point of view of law




Ross supported the logical point of view by Olivecrona ,(directives to court) but later on states that in practice the psychological point of view exists 2 set of Norms: Norms:
 

Rules addressed to citizens (primary norms) Rules addressed to the judges and officials (2ndry norms)

He relates the two by saying that rules addressed to citizens are felt psychologically to be binding because it would be the grounds for the reactions of the authorities (judges and officials)

Contd.


Later Ross states that there is no need to employ a double set of norms. Ross reason: to know these (secondary) rules is to know everything about the existence and content of law Examples : Sec 302 Penal Code

Law as Rules about force




Ross expressly rejects that a sanction is a necessary conditions for a valid law. (rejects law is obeyed to fear of sanctions or coercion, but is obeyed because of the feeling of obligation or mental compulsion- I must do so and so with consciousness compulsionthat a contrary conduct will be met by disapproval) Nevertheless sanctions and force are central to an understanding of how law works as it influences the effectiveness of the law. (Sanctions reinforce the psychological feeling of being bound). Without the monopolization of the use of legitimate force, psychology would not be effective (when the force does not exist, the feeling afraid in mind in breaking the law will not be triggered)

Criticism on Ross
Does not take into account law that has never been applied by the courts, i.e law in statutes. A rule (directive) is only a valid rule of law if it is effectively applied by the court. Follow logical positivism which has been demonstrated to be defective The verification principle that Ross relies on exists in the realm of metaphysics, which he denies (law valid if it can be predicted that the ct will apply it). The verification principle therefore must be rejected by the Scandinavian realist. (reason: SR uses priori reasoning ) A proposition is capable of being reached by the application of human reason
Law is seen as rules about force, even more since laws are norms addressed to officials (misrepresented as power-conferring laws); the main function of setting standards of behaviour is disregarded.

Does not look at how courts justify their decision. Ross merely states that understanding the rule is necessary to understand the judicial process and to predict the likely income of the case.
The place of the judge in Ross theory

The observer will not know the actual reason the judge applies the rule, whether due to the experience of validity or due to fear or indifference

The theory itself is no assistance to the judgejudges do not predict their own behaviour when reading their own decissions

If our reaction to law is a knee-jerk reaction caused by our psychological condition then why is it that people often disobey the law. So that means that SR rest on false psychology

SCANDINAVIAN REALISM V AMERICAN REALISM


Scandinavian American realism(AR) realism(SR)  narrower area of interest  look at the legal system as a ( all law is judge-made whole (judge made law will law ) be valid law if they are followed - felt to be binding  valid rules are those by the society) which are followed in  valid rules are those which practice. are followed in practice +  concentrates on the felt to be binding judge  concentrates on the psychological effect on officials

AR predict of the courts decision come from many factors such as the judges wide discretion, the influence of inarticulate major premises (i.e unacknowledged social, moral and economic considerations). AR do not accept stare decisis and the quest for certainty. For them, the judges should play a more creative role to create legal fluidity

SR basically do not look behind the personality of the judges. The higher prediction that the courts will use the nom/rule in making decisions, the higher degree of the validity of the law. SR do accept some role of established stare decisis because they thought it might create a higher degree of prediction.

Both interested in the legal system and highlight the position of court

Both reject metaphysical explanation of law like natural law (i.e God decreed law) and try to explain the law in terms of observable behaviour, in terms of cause and effect .

Both are empiricists and claim that empiricism was the only approach that could produce meaningful results. However, only the AR put their empiricism into practice

Both reject formalism and emphasize on the reality of legal experience

The END

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