REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1958.tb00494.x |
| Published date | 01 September 1958 |
| Date | 01 September 1958 |
REVIEWS
LEGAL
Tm”o
REVIBED:
MY
VIEWS
ON
LAW.
By
A.
VILIIELM
LUNDBTEDT,
Emeritus
Professor
of
Civil
and Roman Law,
former
member
of
the
Swedish Riksdag.
[Stockholm
:
Almquist
8z
Wiksell.
1956.
406
and (Bibliography and Table
of
Contents)
14
pp.
Sw.
kr.
19.00.]
ANDERE
VILHELM
LUXDSTEDT,
who died in
1955,
hnd been
n
member of the
Swedish Riksdag, Professor of the University of Uppsnln, nn active teacher
and
a
prolifrc writer. He mennt the present volume
to
be the conclusion of
his
life’s
achievement, an outline of his views
on
fundnmentnl questions of law
and society.
“I
hold these views of mine
.
.
.
,”
he wrote, “to be nothing
short of
a
bnsic reshaping of legal thinking.” The work, in proof
at
the time
of
hb
death, has now been published by the Faculty of Law of his University
under the editorinl guidance of Professor Per Olof Ekcliif.
Its
four pnrts nre
entitled: Genernl Criticism of Prevailing Jurisprudence; Jurisprudence
as
n
Science;
Are
Ddnrntions
or
Statements
of
Written
or
Unwritten Lnw
to
be
Chnrncterised
88
Rules of Lnw?; Viewpoints on Anglo-Americnn
Jurisprudence.
Lundstedt was perhaps thc most extreme of the writers inspired by
Axel
Hiigerstriim who
to
us
nre known
as
“the Scnndinnvinn Realists.” His
“renlism”
involves
n
rejection of all “metnpliysie,”
n
refusal to ndmit the
reality
of nnything but “facts,” nnd
n
refusal to ndmit the validity of nny
method
of
thinking different from thnt of the scientist.
He
denies, repentedly
and vehemently, that there is nny objective renlity corresponding to the
‘‘
fnlse
notions” of right, duty, obligntion,
guilt,
linbility, etc.
(cf.
p.
16
of the present
volume);
the
only
reality
he will nllow them
is
psychologicnl,
na
feelings in
our
minds.
He
denies
that
vnlue-judgments hnve any meaning, and therefore
be
dcnies thnt nomtive
lnngunge
(using such words
as
“ought,” “should,”
“
must
”)
hns nny meaning, save in the empiric sense,
e.g.,
f‘
You
must leave
now, if you want
to
catch
your
train”). He denies, of course, thnt lnw is
imperntive. “‘Lnw,”’ he writes on
p.
8,
is “nothing but the very life of
mnnkind in
orgnnised
groups and the conditions which make possiblc the
peaceful co-existence of masses of individunls
in
socinl
groups nnd their
co-operntion for other ends thnn
mere
existence nnd propagation
.
. .
‘lnw’
is an intricnte mnchinery which
is
essentially kept going
.
. .
by means
of
psychological impulses arising in various ways from
the
nnture
of
mnn, his
senses,
his instincts, nnd his emotions.” They too
knew something of these
“
psychologicnl impulses
”
coming from the
appetitus
rocietdis.
But the old nnturnl lnwyers
(so
far
ns
they founded themselves on
observed nature and not on supernnturnl revelntion) made
n
Iogicnlly illegiti-
mate trnnsition from
Bein
to
Bollen,
proceeding from the observation thnt
man hns certnii impulses nnd does certnin things to the conclusion thnt man
ought
to follow these impulses nnd do these things.
So
did such opponents
of traditional nnturnl law
ns
the Utilitnrinns, when from the observation thnt
men
seek
pleasure they concluded that men
ought
to seek plcnsure, and
Duyit, when from the observntion thnt men live in society he inferred
n
duty
to promote socinl solidnrity. Kelsen snw more clearly when in his early
writings he offered
nu
nccount of law stated purely in ternis of
Bollerr
Lundstedt
snw
more clearly nnd tried
to
present an nccount purely in terms
of
Bein.
This is what he mennt by
n
philosophic
or
scientific nccount.
Did he succeed
?
The present reviewer some years ngo, when commenting
Grotius
or
Pufendorf might almost hnve written these words.
.
566
SE~.
1958
REVIEWS
567
on the work of Lundstedt’s teacher Hiigerstrom, confessed his own inability
to see how any practical science can be conducted on the sole basis of the
empiric knowledge that
a
leads to
x
and
b
leads to
y;
surely we must choose
whether to aim
at
x
or
at
y;
we must make the value-judgment that one of
these is better than the other. Lundstedt struggled to avoid
this
conclusion.
In his jurisprudential writing he often refers (as he did in his practical work
as
legislator and publicist) to
‘I
social welfare
”
as the end of law. He explains
on
p.
144
of the present work that this does not import any value-judgment
but simply the factual constatation that the overwhelming majority of
human beings “wish to live and develop their lives’ possibilities”; there is,
then, “nothing else to be determined
for
the developing of legs1 machinery
than the consideration of what is required in order that the actual aspirations
of men just indicated may be realiscd to the most practicable extent’ To
the present reviewer this seems to beg
a
dozen questions. Why, in the
first
place,
shovld
men’s aspirations be realised? Why should their possibitia
be developed
?
Are
all
possibilities equally
worth developing
?
Suppose
I
have-suppose many men havcan aspiration
to make money and
a
latent talent for making it by false pretences, is
this
a
possibility to be developed? Who is to decide? Apparently not the
individual concerned but the legislator. Then what
are
we to say about the
tyrannical dictator
?
Is
“social
welfare” just whatever the dictator chooses
to impose upon
his
people? Lundstedt does attempt to meet the
case
of
the dictator by pointing out that the dictntor
at
least
pretmdu
to his people
that he has their welfare
at
heart and that in fact the dictator must maintain
the minimum essentials of social economic life and must maintain
a
certain
feeling of security; but he is obviously not well content with his answer and
admits (p.
148)
that dictatorial reigns of terror have “very little to do with
the legal order in the ordinary meaning of Western civilisation” and (p.
1.M)
that his own presentation of social welfare
“as
a
guiding motive
for
legal
activities as well
as
legal science” is in eiTect “limited
to
the consideration
of
a
country such
as
Sweden.”
If
this
were all, Lundstedt would have no
great
claim
to
be considered
a
philosophical thinker. But in other passogeehe
is
so
rambling and verbose
a
writer that it is difficult to grasp
all
the inter-connections of his thought-
we get indications of an answer which, in some ways, is more acceptable.
“Science in the philosophical,
i.e.,
epistemological, sense is one thing, while
science
as
practised in society is another
”
and the latter
‘I
can be evaluating
as
well
”
(p.
268).
In other words, the
phibdophy
or
dCi8nce
of law
is
limited
to observation of how law works towards an end, without judging whether
the end is good or bad, but in “constructive” jurisprudence, that is, in
practice,
the legislator, the courts, the public and the writer on jurisprudence
(including,
as
he admits, Lundstedt himself) may and indeed must introduce
their own notions of what
is
good and what
is
bad.
To the reviewer the following comments suggest themselves:
(1)
In the
philosophy
or
science
of law
‘‘
social welfare
”
would seem thus to be emptied
of content and reduced to
a
purely formal term.
(2)
In
“constructivq”
evaluating jurisprudence, if
a
notion of “social welfare” is to serve
“as
a
practical
guide,” we need what Lundstedt does not give
us,
namely,
a
systematic social ethic, otherwise “social welfare” will become just another
of thcse meaningless magical incantatory terms which Lundstcdt is
so
anxicus
to banish from
our
thinking.
(a)
The practical employment of legal machinery
surely involves the use of concepts and rules; is the study
of
these not
part
of Jurisprudence
?
Lundstedt’s answer
to
the last of these questions would appenr to be
a
grudging and qualified affirmative.
His
discussion of “rules
of
law”
is
not
easy to understand, particularly for onc who is imperfectly ncq?lainted with
the iniplicntions of the Swedish term
riitt33nts
(equivalent to the Gerninn
Rocht~satz)
and hns not kept up to dnte with recent argument on the relation
between
Rechtsnomn
and
Rechtssatz.
It
seems, however, that Lundstedt is
What is mennt by “develop”
?
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