Karl Olivecrona on Legislation
Theory and Practice of Legislation 1: 59-76 (2013)
14 Pages Posted: 21 Sep 2012 Last revised: 18 Jun 2013
Date Written: September 20, 2012
The multidisciplinary study of legislation, or Gesetzgebungslehre, as the Germans call it, has yet to fully penetrate the defense wall of legal philosophers, who have so far focused mainly on the more or less finished product of legislation, namely the legal system (in their inquiries into the nature of law), or on the activities of judges and other law-appliers (in their study of legal reasoning), or, in some cases, on normative or evaluative questions, such as whether there is an obligation to obey the law. The interest among legal philosophers in questions concerning legislation seems, however, to be on the increase.
Against this background, it is of some interest to note that the Scandinavian realist, Karl Olivecrona, touches on questions concerning legislation in his otherwise traditionally oriented writings on jurisprudence. As one might expect, Olivecrona’s view on legislation depends on a realist account of the nature of law. Olivecrona rejects the view that legal rules have binding force and can confer rights and impose duties, arguing instead that they are independent imperatives possessing (what he calls) a suggestive character by virtue of which they influence the citizens (and the legal officials) on the psychological level. This suggestive character depends in turn ultimately on the reverence (or respect) for the constitution on the part of the citizens (and the legal officials): They are disposed to obey the independent imperatives because they revere the constitution.
On such a realist understanding of law, one important task for anyone who wants to understand legislation and its role in the world of the law is to explain how legal rules in the shape of independent imperatives become incorporated into the legal machinery. Although such incorporation is of course mainly done nowadays through the process of legislation, Olivecrona points out that custom and judge-made law also play a role. In this article, I shall therefore present Olivecrona’s account of how legal rules become incorporated into the legal machinery by means of legislation, and to some extent by means of custom and judge-made law, and add a few critical remarks on this account.
Keywords: Scandinavian legal realism, Karl Olivecrona, naturalism, independent imperatives, binding force, revolution
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