Naturalism and Non-Naturalism in Legal Philosophy: Hägerström on Kelsen
AXEL HAGERSTROM AND MODERN SOCIAL THOUGHT, Sven Eliaeson, Patricia Mindus, Stephen Turner, eds., Oxford: The Bardwell Press, Forthcoming
16 Pages Posted: 24 Sep 2012 Last revised: 31 May 2013
Date Written: September 24, 2012
The spiritual father of Scandinavian realism, Axel Hägerström, erected his theory of law on, and formulated his critical remarks on other theories of law from, a philosophical foundation consisting of ontological naturalism and ethical non-cognitivism. The author of the Pure Theory of Law, Hans Kelsen, on the other hand, rejected ontological naturalism out of hand, arguing that law belongs in the ‘world of the ought’, a realm of norms and values beyond the world of time and space, and that any theory of law that locates law in the world of time and space cannot but fail to grasp the specific meaning of law. His meta-ethical position, as we shall see, is not crystal clear, though he appears to have been a meta-ethical relativist. Unfortunately, there was not much intellectual interaction between these two important legal philosophers. While Hägerström occasionally turned his attention to Kelsen’s writings, Kelsen does not appear to have directly addressed Hägerström’s theory or criticism of Kelsen’s theory, though he (Kelsen) did engage with Alf Ross’s realist jurisprudence, especially with the critical remarks made by Ross on Kelsen’s theory (see especially Kelsen 1959/60).
In this article, I intend to take a closer look at Hägerström’s criticism of Kelsen’s theory as it was put forward in a 1928 review essay, especially the claim that Kelsen’s theory should be rejected on the grounds that it cannot be squared with Hägerström’s naturalistic theory of reality. I am going to argue, more specifically, that while Hägerström’s objection to Kelsen’s non-naturalism is plausible, Hägerström’s theory of reality is not without its problems, and that Kelsen could in any case meet Hägerström’s criticism by abandoning his non-naturalism and adopting instead a naturalist, and more specifically, a conventionalist analysis of the existence of legal norms. I am also going to argue that Hägerström’s claim that Kelsen’s theory shows a strong affinity to primitive positivism, in assuming that the act of legislation necessarily and immediately gives rise to the existence of valid (in the sense of binding) legal norms, is undermined by Hägerström’s failure to appreciate that Kelsen saw the presupposition of the basic norm as being conditional upon a wish on the part of the person who makes the presupposition to conceive of the legal raw-material as a system of valid norms.
Keywords: naturalism, non-naturalism, Hägerström, Scandinavian legal realism, Kelsen, Popper, legal conventionalism
Suggested Citation: Suggested Citation