Olivecrona’s Legal Philosophy: A Preview

Abstract

In this chapter, I offer an overview of Olivecrona’s legal philosophy in the hope that it might facilitate understanding of the exposition and critical discussion of it that follows in the coming chapters. I begin with a few words about Olivecrona’s main publications, and proceed to introduce two important themes in Olivecrona’s legal philosophy, namely naturalism and conceptual analysis, adding a few words about Olivecrona’s meta-ethics. I then briefly discuss six central topics in Olivecrona’s substantive legal philosophy, viz. (1) the critique of the view that law has binding force, (2) the analysis of the concept and function of a legal rule, (3) the analysis of the concept of a right, (4) the idea that law is essentially a matter of organized force, (5) the idea that courts necessarily create new law when deciding a case, and (6) the idea—which is in keeping with (1) and (2)—that the function of legislation is not to create binding legal rules, but to introduce independent imperatives into the legal machinery in a way that makes law part of the “chain of cause and effect.” I then discuss, equally briefly, (7) the distinction between the truth and the correctness of legal statements, (8) Olivecrona’s thoughts on some topics in the history of legal and political philosophy, (9) the relation between Olivecrona’s legal philosophy and the theory of legal positivism, and (10) the relation between Olivecrona’s legal philosophy and the legal philosophies put forward by Hägerström, Lundstedt, and Ross. Except for the question of judicial law-making, the division of Olivecrona’s substantive legal philosophy into the topics (1)–(7) tracks the presentation in the First Edition of Law as Fact, and allows us to see how Olivecrona’s legal philosophy developed over the years.