Karl Olivecrona on Judicial Law-Making

16 Pages Posted: 17 Nov 2009

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Abstract

The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term “evaluation” in a sense that is broad enough to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false.

Suggested Citation

Spaak, Torben, Karl Olivecrona on Judicial Law-Making. Ratio Juris, Vol. 22, Issue 4, pp. 483-498, December 2009, Available at SSRN: https://ssrn.com/abstract=1505731 or http://dx.doi.org/10.1111/j.1467-9337.2009.00436.x

Torben Spaak (Contact Author)

Stockholm University ( email )

S-106 91 Stockholm
Sweden
46 8 16 45 89 (Phone)
46 8 612 41 09 (Fax)

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