REVIEWS
| Published date | 01 March 1954 |
| Date | 01 March 1954 |
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb00263.x |
REVIEWS
INQUIRIES
INTO
THE
NATURE
OF
LAW
AND
MORALS.
By AXEL
HXGERSTROM. Edited by
KARL
OLIVECRONA, Professor of Junis-
prudence, University
of
Lund, Sweden. Translated by
C.
D.
BROAD, Knightbridge Professor
of
Moral Philosophy, Trinity
College, Cambridge, England. [Stockholm
:
Almqvist
&
Wiksell. 1953. xxxii and 366 and (Bibliography and Index)
11
pp.
Sw.
cr.
25.00,
bound
Sw.
cr.
30.00.1
AXEL
HAGERSTROM
(1868-1939)
has exercised
a
dominating influence, whether
by attraction
or
repulsion, on the contemporary generation of Scandinavian
philosophers. His disciples have already done something to bring his ideas
before the English-reading world, but this volume for the first time presents
us with
a
selection of his own writings (of various dates from
1916
to
1939)
on the philosophy of law and morals. They have been translated by Professor
Broad and edited with
a
most valuable expository preface by Professor
Olivecrona.
Hagerstrom taught in the University of Uppsala for forty years and
his
influence in his native country,
so
his editor tells
us,
depended more on his
oral teaching than on his published work. Both translator and editor testify
to the difficulty of his writing, due partly to the complexity of his thought
but
still
more to the involved Germanic style in which he expressed it.
Professor Broad merits both
our
commiseration and
our
congratulation.
His
translation, in Professor Olivecrona’s judgment, actually reads more easily
than the original.
It
is not
always immediately clear whether some passages are
to
be read
as
oratio
obliqua
or
oratio
recta
(whether, for instance, some of the sentences on p.
293
are to be read as stating the theory under discussion
or
Kelsen’s criticism
thereof
or
even Hagerstniim’s criticism of Kelsen) nor
is
it easy to tell (for
instance, on p.
351)
which of the many sentences beginning with “But”
merely attach
a
minor qualification to what has just been said, without
diverting the main stream of argument, and which are meant to reverse the
stream by introducing the antithesis to the preceding thesis. Moreover, there
are in Hagerstriim’s writing not
a
few traces (for instance, on p.
283)
of
what Professor Olivecrona tactfully calls
“
a
certain polemical acerbity
”
;
his
representation of the views of others
is
sometimes strained almost to mis-
representation
(cf.
the passages of Kelsen referred to
at
p.
268,
n.
2)
and
in controversy he could resort to quibbles and confusions in his desire to score
at
every point.
Examples of these faults will be found in the opening pages of this
volume (especially pp.
23),
pages which in other ways may reduce the lawyer
to bewildered exasperation. Hagerstriim is here seeking to prove that what
lawyers call the right of property is memingless. “We must notice that the
State does not step in as protector unless
I
have actually lost possession of
the thing.
.
.
.
But the right of property would seem to be a right to the
thing itself,
i.0.,
a
right to retain possession valid against every other person.
Can the State guarantee this? Of course not. All that it can do is to enable
me to regain the house if it should already be in possession of another person.”
This overlooks the possibility of interdicts
or
injunctions against threatened
eviction, to say nothing of remedies against trespass, nuisance and other forms
of disturbance falling short
of
actual eviction. Perhaps Hagerstriim, who was
writing with his eye on Roman law, would say that such remedies are based on
possession rather than on
dominiurn
and that it is the abstract notion of
1’74
Yet it is still difficult and sometimes obscure.
MARCH
1964
REVIEWS
175
domi.Niz*unn
distinct from possession that is meaningless; but if he had looked at
the remedies for the protection of movable property he would have found that
under the Lex Aquilia
“
the State stepped in as protector” of the
dominus
whether he
was
in possession
or
not, and the protection under the law of theft
was based not on possession but on an interest
rem salvam
esse
which more
often resided in the
dominus
than in the possessor. To the lawyer the notion
of
dominim
as
distinct from possession does mean something, even if Hager-
strom could not explain what it means.
“
Who ”-he continues-“ would make the right of property dependent on
the question of proving the title? Yet in a lawsuit
I
can obtain legal protec-
tion only if
I
can bring forward proof.” This typically scornful remark,
incomprehensible to the lawyer-why should one not make the right of property
dependent on proof of title?-perhaps gives a clue to all this confused page.
Hlgerstrom is asking what are the “real facts” of the situation in which
lawyers find, or, as he would doubtless say, imagine,
a
right of property, and
he has failed to understand that
a
title, such as a previous conveyance, is,
just
as
much as
a
present possession,
a
fact on which legal remedies can be
based.
It
is not surprising that Hagerstrom concludes that
“
there are insuperable
difficulties in determining the fact which corresponds to what we call a right
of property.” The difficulties are mainly of his own making and naturally he
cherishes them.
But we must not be put
off
by such passages of quibbling thought and
arrogant expression.
It
is clear that for all his tiresome faults Hagerstrom
was
a
powerful and original thinker whose opinions must be seriously con-
sidered. There is much force in his attack on the imperative theory of law.
Some of his arguments can doubtless be met. Thus, in order to attack the
view that the right of property rests on
a
command by the State to all persons
to respect, under threat of penalty for disobedience, the possession of the person
entitled, he refers (p. 3) to the commoa case of
a
dispute in which both parties
believe themselves to be in the right.
“
No
one here has been disobedient. For
disobedience implies that one was aware of the command. But suppose
I
believe that
I
am in the right, and therefore that the State has not commanded
me to give up the thing to my opponent. Then
I
am in no way disobedient.”
(This, incidentally, is an argument which could have been more widely applied.
The lawyer holds that
ignorantia
juris
nerninem
ezcusat
and he also knows
of
many cases where a man incurs legal liability for facts which he was unable to
control or of which he was blamelessly ignorant; in all these cases it niay well
seem inapt to speak of disobedience to
a
command.) But the imperative theory
of law can perhaps be saved if we look at the moment
at
which the normative
rule calls for human action, and others of Hagerstrom’s difficulties can be met
by remembering that the practical application of rules is conditional upon the
proof
of
the facts to which they relate. Thus we might say that in Hlgerstriim’s
example the “command” really is:
If
it is proved that
A
has a better title
to the possession of the thing than B, then B must surrender it to him, and on
this point B must accept the judgment of
a
court against his own private
belief. Hagerstrom is more successful in his demonstration that, if we insist
on
regarding law as a command
or
as based on will, we can seldom, if ever,
identify any existent factual entity which commands or wills, and that those
who resort to imagining some personified abstraction, like the State,
as
the
commander do nob succeed in explaining
why
the will or alleged will of this
abstraction should have binding force. Yet we may suggest that fictions, even
if bad masters, can be good servants, and the fiction or metaphor of a command
is
a
useful and indeed almost indispensable aid to our attempts to analyse and
explain the normative structure of legal thinking. If the fiction of the State
as commander is deemed
too
dangerous (and it unquestionably is dangerous),
the fiction of the law itself
as
commander, whose metaphorical character is more
obvious, is surely harmless. Sir Frederick Pollock throughout an entire book
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