Karl Olivecrona on Legislation

Abstract

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. But the interest among legal philosophers in questions concerning legislation seems 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, his account of legislation follows a reliably realist pattern in that it is concerned not with the capacity of legislative products to establish legal relations, but with their capacity to cause people to behave in one way or another. More specifically, 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 the basis of this account of legislation, Olivecrona identifies important similarities (and some differences) between ordinary and revolutionary legislation. Olivecrona's account is not without its problems, however. One may, for example, wonder precisely what it means to say that independent imperatives have a suggestive character, and that the citizens (and the legal officials) revere the constitution. These questions will be addressed in the lecture.