Karl Olivecrona on Judicial Law-Making

Abstract:     
The Scandinavian Realist Karl Olivecrona maintains that courts necessarily create law when deciding a case. The reason, he explains, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. I am not convinced by Olivecrona's analysis, however. The problem is that Olivecrona uses the term 'evaluation' in a broad enough sense to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and that therefore his claim that judges must evaluate issues of law or fact in order to decide a case is false.

I begin with a consideration of the structure of Olivecrona's argumentation in support of the claim that courts necessarily create law when deciding a case (Section 2), adding a few words about the distinction between law application and judicial law-making (Section 3). I then consider Olivecrona's tacit assumption that the occurrence of non-objective judicial evaluations must lead to judicial law-making (Section 4), the central claim that courts must evaluate issues of fact or law in order to decide a case (Section 5), and Olivecrona's meta-ethics (Section 6). Having done that, I consider and reject an alternative interpretation of Olivecrona's confusing ideas about evaluations (Section 7). I state my conclusions in Section 8.

Number of Pages in PDF File: 12

Keywords: Scandinavian Realism, Karl Olivecrona, Evaluations, Conventions, Judicial Law-Making

Accepted Paper Series