RB 65


            The Olin Foundation for Legal History INSTITUTET FÖR RÄTTSHI STORI SK FORSKNING s toc k hol m 2 0 0 6

g raph i c de s i gn : Pablo Sandoval cove r p i cture: Axel Hägerström(1868-1939) art i st : Harry Bergman (1903-1987) pape r : Lessebo Bok natur vit typog raphy: Bembo p r i nt i ng : Åtta.45 Tryckeri ab, Stockholm2006 bookb i nd i ng: Bengt Perssons Bokbinderi AB      -  --     -   The depicted medal of Johan Stiernhöök, engraved by C.M. Mellgren, was made on behalf of the Swedish Academy in 1837.

RÄTT SH I S TOR I SKT B I BL I OTEK d i s t r i bue ra s av r önne l l s ant i k var i at ab band 65

Max Lyles


a ca l l f o r s c i e n t i f i c p u r i t y 9 h i s dissertation has been written under the auspices of the Faculty of Law at the University of Stockholm. The subject of this study was determined in cooperation with my supervisors, Professors Claes Peterson and Marie Sandström. I am deeply grateful for their valuable support and inspiration in the completion of this task. During the final stages of revision and proofreading, the comments and advice given by Mr Brian Moore (UK) have been invaluable. The Institutet för Rättshistorisk Forskning, the Olin Foundation for Legal History, kindly provided the financial means necessary for the realization of this project, including the economic support needed to attend conferences and other gatherings both at home and abroad. In addition, the Olin Foundation has accepted this study for publication in its series Rättshistoriskt Bibliotek. For all of this, I am greatly indebted. I extend my sincere thanks to the Faculty of Law, which during my post-graduate studies provided workspace, a shorter term of employment, the opportunity to teach, and to have access to certain travel funds. Finally, my warmest thanks to Jan Hellner’s foundation, Stiftelsen den 28 oktober 1982, for the awards of several grants for the purchase of necessary literature, as well as providing me with the opportunity to travel abroad for the purpose of study. T Foreword

p r e f ac e 10 Having expressed my gratitude and appreciation to all of those above, I now take the opportunity of conveying my heartfelt thanks to my wife Stina, and my children, Edith and Stella, whose love, patience and indulgence (as well as encouragement during those inevitable moments of difficulty and frustration) provided me with the necessary stability and support to bring this project to its conclusion. It is to them that I dedicate this work. Stockholm, October 2005 max ly l e s

a ca l l f o r s c i e n t i f i c p u r i t y 11 Hi stor i cal or Ph i lo soph i cal Method and Ap p roach ? Purpose of Investigation Choice of Approach and Method Choice of Material Bibliographical Notes Correspondence between Philosophy and History, Formalism and Empiricism General Plan Häge r ström about Häge r ström Kantian Influences, Negative and Positive Christopher Jacob Boström’s Rational Idealism Hägerström’s Idealism The Critique: Nihilism in Transcendentalist Philosophy The New Po s i t i on : The Reve r sal of Ph i lo soph i cal Causal i ty A problem:The Relationship between the Objective and the Subjective Synthetic Knowledge The Objectivity of Knowledge The Copernican Revolution: From Subjective Necessity to the Necessity of Reality’s own Self-identity The Copernican Revolution: Historical Reference to Kant Contradictions in Immanuel Kant’s Rationalism Two Epistemological Revolutions Correspondence and Coherence: The Nature of Objective Knowledge Refutation of Epistemological Idealism The Spirit of the “Umwälzung”, a Shift of Perspective The Copernican Revolution:The Self-identity of Reality 1 1.1 1.2 1.3 1.3.1 1.4 1.5 1 1.1 1.1.1 1.2 1.3 2 2.1 2.2 2.3 2.4 2.4.1 2.5 2.6 2.7 2.8 2.9 2.10 23 23 28 29 29 30 31 33 35 36 37 40 44 46 54 57 59 60 62 65 69 71 73 75 78 79 Part I Theoretical Philosophy: “Die kopernikanische Umwälzung” Part II Introduction Contents

c o n t e n t s 12 Sub j ect iv i sm - Ob j ect iv i sm: Häge r ström’s Cope rn i can Revolut i on Cont i nue d The Subjectivistic Confusion of Epistemological Necessity for Ontological Necessity Descartes’ Influence on Modern Philosophy Anti-subjectivism1908 and 1929 “Reality” and “Self-identity” Correlativity and Identity “Selbstidentität” - Determinateness: Metaphysical Connotations Materialistic Ontological Monism Restatement of the Epistemological Dilemma: The Principle of Identity Essential Metaphysics in “Das Prinzip der Wissenschaft” Real Concepts and Unreal Concepts “Das Prinzip der Wissenschaft’s” Consequences for Hägerström’sProgram of Conceptual Analysis: Conceptual Analysis Made Impossible Excursus: Indeterminateness vs.Vagueness Summary and Conclusions (Conceptual Theory) I nduct i on : The Road to Ob j ect - knowle dge Hägerström’s Analysis Hägerström’s Analysis of the Aristotelian Theory of Knowledge Solution to the Aporia of Inductive Reasoning Inductive Knowledge: Absolute or Relative? A posteriori Certainty vs. A priori Certainty The Transcendent Argument The Formal Invalidity of the Transcendental Argument Excursus: Dogmatism as a Scientific Premiss Denying Inductive Inferences:A Logical Impossibility? Induction: Conclusions A. Induction is Based upon Empirical Data and Refers only to Empirical Data B. Inductive Inferences are only StatisticallyVerifiable, not DeductivelyVerifiable C. Induction is neither Other-worldly nor Transcendental D.There Exist neither Absolute Concepts nor Absolute Knowledge Summary Ob j ect iv i ty, the Sc i e nt i f i c Wor ld Vi ew, and the Pr i nc i p le of Par s imony The Principle of Parsimony: One world, one Reality, one Context 3 3.1 3.2 3.3 3.3.1 3.3.2 3.3.3 3.3.4 3.3.5 3.3.6 3.3.7 4 4.1 4.1.1 4.1.2 4.2 4.2.1 4.2.2 4.2.3 4.2.4 4.2.5 4.2.6 4.2.7 4.2.8 5 5.1 82 84 84 89 91 92 94 96 97 99 102 106 107 108 111 112 113 116 118 120 124 125 130 131 132 133 135 138 139 139 141 142

a ca l l f o r s c i e n t i f i c p u r i t y 13 The Contextual Character of Empirical Knowledge - “relative Subjektivierung” Conce p t s and Un ive r sal s Idealism, Realism, Nominalism, Conceptualism and the Program of Conceptual Analysis Reificated Concepts Hägerström’s Conceptual Realism Conclusion: Critique of Metaphysical Philosophy Sensualistic/Subjectivistic Philosophy Anti-subjectivism or Objectivism: Summary and Conclusions Summary and Conclus i ons : A Definition of Science “Praeterea censeo metaphysicam esse delendam” Reality, Self-identity, Determinateness, and Knowledge Monism in Ontology and Epistemology: The Correspondence Theory of Truth Alternative Interpretations of Hägerström’s Philosophy Concepts and Correspondence between Subject and Object Ontology:The Nature of Reality A Definition of Science Scientific argumentation Cont i nu i ty The Identity between Object and Subject in Das Prinzip der Wissenschaft Cas e Study: “Botanisten och Filosofen” - An Attempt to Save Science To whom do the Relativity of Synthetic Truths a Posteriori Pose a Problem, to the Philosopher or the Botanist? The Limited Range of Truth in Empirical Sciences The Law of Causality: the Unempirical Foundation of Empirical Science Skepticism? Three Objectives of “Botanisten och filosofen” A Theory of Universals Conceptual Realism Difference, Reality, and Existence The Determination of Objects Realistic Elements in “Botanisten och filosofen”? Concluding Remarks Cas e Study: Till analysen af det empiriska själfmedvetandet - Anti-subjectivism and Critique of Idealism 5.2 6 6.1 6.2 6.2.1 6.3 6.4 6.5 7 7.1 7.2 7.3 7.3.1 7.4 7.5 7.6 7.7 1 1.1 2 2.1 2.2 2.3 2.3.1 2.3.2 2.4 2.5 2.6 2.7 2.8 2.9 3 144 146 146 148 149 149 155 156 160 160 162 162 163 164 165 167 168 170 172 173 175 177 179 181 183 186 187 188 193 194 196 198 200 The Leading Principle: The Necessity of a Doctrine of Knowledge Part III

c o n t e n t s 14 Objectives:The Groundwork of a Non-subjectivistic Theory of Philosophy The Principle of Reality: Logical Determinateness Epistemology and Practical Philosophy Ernst Logren’s Analysis of the Principle of Logical Determinateness Ontological Principles Selfbeing Excursus: Reality and Existence The Theory of Judgments and other Epistemological Perspectives The Elements of a Judgment The Cognitive Hierarchy The Definition and Formulation of a Judgment The Existence-judgment - Metaphysical Connotations The Nature of the “Self ” Metaphysical Consequences Connected to the Idea of an Absolute “Self ” or Subject Empirical Self-consciousness: Scientific Problems Summary and Conclusions The Lead i ng Pr i nc i p le s of Häge r ström’s Sc i e nt i f i c Work Hägerström’s Ontology: a Logicistic Concept of Reality - the Principle of Identity Logic, Ontology and Epistemology - Principle of Parsimony Epistemology vs. Ontology - the Correspondence Theory of Truth The Nature of Judgments and Propositions Summary: The General Character of Hägerström’s Philosophy Moral Theory : Ax i olog i cal Ni h i l i sm The Relationship between Normative and Theoretical Reality Normative Expressions and their Function Values and Scientific Argumentation Case Study: “Kritiska punkter i värdepsykologien” - Moral Philosophy “Primär värdering” - “PrimaryValuation” - not only a Subjective Position, but also a Form of a Judgment The Distinction between Theoretical and Practical Judgments 3.1 3.1.1 3.1.2 3.1.3 3.2 3.2.1 3.2.2 3.3 3.3.1 3.3.2 3.3.3 3.3.4 3.4 3.5 3.6 3.7 4 4.1 4.2 4.3 4.4 4.5 1 1.1 1.2 1.3 2 2.1 2.2 203 206 206 208 210 210 212 213 215 217 218 219 221 222 225 227 228 230 231 232 234 235 241 241 242 243 244 246 247 250 Moral Philosophy: “moral science may not be a teaching in morals, but only a teaching about morality.” Part IV

a ca l l f o r s c i e n t i f i c p u r i t y 15 Boström’s Use of Teleological (Evaluative) Standpoints in his Theoretical Philosophy Evaluations,Values, and Science with Reference to Knowledge and Truth Confusion of Value for Knowledge: Effects Hägerström’s Refutation of ObjectivisticValue Theory Cas e Study: “On the Truth of Moral Propositions” Unsolved Problems in Objectivistic Moral Philosophy Evolution Supernatural Reality: A Supernatural Will Hägerström’s Critique of Kant’s View Metaphysical Defense The Actual Origin of Morality and Customs The Reification of Norms: Religious Influences and Ideas The Determination of Moral Truths Duty and Obligation - Feelings The Foreign Element TheValue-objectivistic Redefinition of Truth: A Self-contradiction Legal Significance The Possibility of Establishing Moral Obligations Summary and Conclusions:The Epistemological Futility of an Objectivistic Moral Theory Addenda: Is it Possible to refute Hägerström’s Moral Theory? I nte rnal Vi ew - Exte rnal Vi ew, Practical and Theoretical Consequences Limi tat ion of the Reach of any Ethical Sci ence Practical Importance. Moral Program. Naïve Idealism? Tran s i t i on f rom Moral Ph i lo sophy to Legal Ph i lo s ophy and Theory Häge r ström’s Pe r spe ct ive: Philosophical and Historical, External and Genetic Philosophy and Jurisprudence Separated - a New Role for the Philosophy of Law Definition of the Range and Scope of Jurisprudence An Introductory Definition of Natural Law: “… natural law, i.e. merely abstractly conceived, but unrealized law” Reasons for the Critique of Natural Law Are Natural Law and the Metaphys i c s of Law Dead ? 2.2.1 2.2.2 2.3 3 3.1 3.1.1 3.1.2 3.1.3 3.1.4 3.2 3.3 3.4 3.5 3.5.1 3.6 3.7 3.8 3.9 3.10 4 5 5.1 6 1 1.1 1.2 1.3 1.3.1 2 251 253 256 259 261 262 263 265 266 267 270 271 273 274 275 277 278 279 280 282 284 286 287 289 292 292 294 297 299 302 308 Legal Science: “Quid Saulus inter Prophetas?” Part V

c o n t e n t s 16 Definitions of Law:The Real Difference between Natural Law and Legal Positivism Mutual Inconsistencies of Natural Law and Legal Positivism The Scientific Necessity of a Non-transcendental Philosophy of Law The Current Status and State of Jurisprudence Legal Theory i n a Nut she l l [1] Critique of Legal Science and the Will-theory of law: “Positive law is not a declaration of will from the side of the state” Fundamental Elements of the Will-theory Philosophical Reasons for the Critique of Legal Positivism Imperative-theory and Declarative-theory Circular Definitions and Unnecessary Hypotheses in the Non-metaphysical Explanations of the Law-makingWill TheWill of the State Determined by Law The Law-makingWill:An Autonomous Spiritual Reality Sociological Positivism and Sociological Jurisprudence - Non-circular Definitions of the Law-makingWill [2] Rejecting the Corollary to the Will-theory: Positive Law is not: “… an authoritative prescription of each person’s rights and duties.” Residual Natural Law Theory in Positivism [3] The Real Legal Order: Positive Law: “… is only a system of rules for the so-called organs of the state - themselves defined in the rules - a system of rules which is actually carried through.” [3.1] Positive Law: “is only a system of rules for the so-called organs of the state - themselves defined in the rules” [3.2] Positive Law is: “a system of rules which is actually carried through” The Legal Order [4] Critique of Legal Science: “The idea of rights in another sense than the advantages which the individual is granted through the system of rules, is an idea of super-sensible powers. And since the super-sensible cannot be conceived alongside the sensible, every such idea is false.” The Ideas of Rights and Duties - Logical Inconsistencies and Insufficient Correspondence between Legal Theory and the Facts of Law The Rights of Property,Things, and Possession as Natural Rights 2.1 2.1.1 2.2 2.3 3 3.1 3.2 3.3 3.4 3.4.1 3.5 3.5.1 3.6 3.6.1 3.6.2 3.6.3 3.7 3.7.1 3.7.2 312 314 317 319 322 324 325 326 328 330 331 335 336 343 343 347 349 353 353 356 357 359

3.7.3 3.7.4 3.8 4 4.1 4.2 1 1.1 1.2 1.2.1 1.2.2 1.2.3 1.2.4 1.2.5 1.2.6 1.3 1.4 1.4.1 2 2.1 2.1.1 2.1.2 2.1.3 2.1.4 2.2 The Rights of Property,Things, and Possession as Positive Interests Comments [5] Positivism: “The explanation of legal propositions from the consciousness of law is false. For this consciousness is itself controlled by the interest in society or the interests in a class, which are ultimately determinative for it.” Re late d I s sue s : The Consciousness of Law Legislation, and the Application of Law Law: Concepts and the Interpretation of Law Interpretation of Norms De r römi sche Obl i gat i onsb eg r i f f I & I I The Facts to which Law should Correspond Fictions and the Determination of the Law: The Will-theory in its Different Guises The Monarch’s Will in the Monarchical State The Will of Parliament in a Parliamentary State The “Will of the State”:The Constitutionally Indifferent Will-theory Law as a Machinery Fuelled by Emotions The Will-theory’s Abolition of Jurisprudential Fundamentals Some Observations on the Critique of Hägerström’s Studies of Roman Law Historicism and Reification of Legal Concepts: Problems The Ultimate Principal Premiss of Legal Positivism - Factual Veracity Interdependency between the Will-theory (Positivism) and Unrealistic Constructions Cas e Study :The Promise - Its Binding Power according to, on the one hand, Roman Law and, on the other, Natural Law Rights and Duties, Fundamental Categories of Modern Jurisprudence Obligatio, Obligare and Obligatus, and Vinculum Iuris Dominium: The Supremacy over the Species of a Thing The Systematic Relationship between Obligatio and Dominium The Theories of Rights and Duties of Natural Law and Modern Jurisprudence: Summary and Conclusion An Unfinished Scientific Project: Legal Positivism a ca l l f o r s c i e n t i f i c p u r i t y 17 The Will-theory Part VI 361 362 366 369 370 371 375 375 377 380 380 381 382 383 384 385 387 391 392 396 397 399 401 402 405 407

c o n t e n t s 18 The Historical Ties between Natural Law and Legal Positivism: Practical Problems and Goals Consensus (Mutual will) and Promises Summary and Conclusion Case Study : Hägerström’s Critical Analysis of Jurisprudence, An Example from Private Law The Declaration of Intention: An Explanation to the Existence of Legal Facts and Legal Consequences The Will-theory’s Effects upon the Formal System of Law Conclusion of Hägerström’s Critique of the Will-theory Case Study : Stat och rätt (1904) - An Investigation into the Fundamentals of Late 19th Century Jurisprudence - Mediaeval Realism in Modern Jurisprudence Analysis of Public Law Theory Epistemological Issues in the Science of law (1904) Definition of Natural law (1904) Hägerström’s Kantian Conception of Legal Dogmatics (1904) Defining Legal Philosophy and Legal Science, and their Relationships to one another Legal Concepts, Jurisprudential Concepts, and Positive Law Rights and Duties (1904) Target : The Non-positive Elements of Jurisprudence Definitions (Legal Norms, Facts, Consequences, and Causality) Legal Facts and Consequences in the Construction of Subjective Rights Legal Causality and the Tacit Premisses of Law Distinction between two Concepts of Legal Causality - General Description and Definition Lundstedt on Legal Causation and Causality in Tort and Penal law Legal Scholasticism - Begriffsjurisprudenz Conclusion: Hägerström’s Conceptual analysis and Begriffsjurisprudenz Conce p tual Analys i s i n Pract i cal F i e lds of Legal Sc i e nce Substances of Law and Substantive Concepts of Law Stat och rätt: Illegality and Legality as Notions of Public Law Illegality in Penal Law and the Law of Torts Obligations in General, the Moral Obligation, and in Particular, the Legal Obligation 2.3 2.3.1 2.4 3 3.1 3.2 3.3 4 4.1 4.2 4.3 4.3.1 4.4 4.5 4.6 5 5.1 5.2 5.2.1 5.2.2 5.2.3 5.3 5.4 6 6.1 6.2 6.2.1 408 409 417 419 422 423 426 429 433 434 436 439 441 443 445 447 447 450 453 455 456 460 461 463 463 464 467 468

a ca l l f o r s c i e n t i f i c p u r i t y 19 6.3 6.3.1 6.3.2 6.3.3 6.4 6.4.1 6.4.2 6.4.3 6.4.4 6.4.5 6.5 6.5.1 6.5.2 6.5.3 6.5.4 6.5.5 7 7.1 7.1.1 7.2 7.2.1 7.2.2 7.3 7.3.1 7.3.2 The Development of Jural Basis in Penal Law Illegality and Guilt in Private Law According to the Imperative-theory Private Law; Property law; and Tort Law in Particular Summary and Conclusions: Illegality “Naturrätt i straffrättsvetenskapen?” (1920): Critique of Concepts in Jurisprudence Liability and Illegality Hägerström’s purpose The Relationship between Modern Jurisprudence and Natural Law Three Questions and Three Authors Karl Binding: Die Normen und ihre Übertretung Illegality and Guilt in Penal Law According to the Imperative-theory Hagströmer: Svensk straffrätt Thyrén: Den moderna straffrättens grundåskådningar General Observations Modern Penal Jurisprudence Saturated with Natural Law Concluding Remarks on the Subject of Illegality The Origin of the Idea of a Personally Commanding Legal Order Illegality - a Corollary to the Metaphysical Characteristics of the Binding Powers of the Norm (the Imperative-theory) The Imperative-theory and the Idea of Just Retribution The Metaphysical Contamination of Modern Jurisprudence Conclusions Cas e Study : “Om svikligt förtigande såsom straffbart efter 22:1 sl” - Deconstructing a Construction The Legitimacy and Authority of Jurisprudence, and Jurisprudential Doctrine The Limits of the Scientific Argument The Imperative-theory of Law - Effects upon Legal Science and the Application of Law Jurisprudential Deduction Arguments de Lege Ferenda and de Lege Lata Conclusions:The limits of the Constructive Mandate of Jurisprudence The Authority of Jurisprudence Restated: Jurisprudence in Need of a New Type of Authority The Scientific Defects of the Constructive Method: Deduction Confused for Analogies and Fictions 470 472 474 476 478 480 482 483 484 484 485 487 489 491 493 495 498 500 503 504 505 507 509 511 512 514 515 516 518 519

c o n t e n t s 20 7.4 8 8.1 8.1.1 8.1.2 8.2 8.3 8.3.1 8.3.2 8.4 8.4.1 8.4.2 8.4.3 8.4.4 8.5 8.5.1 8.5.2 8.5.3 8.6 1 1.1 1.1.1 1.2 1.3 1.3.1 1.3.2 1.3.3 1.3.4 1.3.5 2 2.1 2.1.1 Summary and Conclusions: Hägerström’s Judgment over the Constructive method Le gal Methodology and Theory of Law Statute Interpretation and the Application of Law The Enigma Methods of Interpretation Positive Law and the Sources of Law Legal Positivism and Method The Notion of Valid Law According to Hägerström’s Variety of Legal positivism Valid Law: Lex Lata and Lex Ferenda Doctrine of Legal Sources: Positive Law andValid Law Normative Understanding of Valid Law The Positive Task of Jurisprudence Congruence between Theory - Doctrine, and Practice - Application Validity by means of the Legislator’s will? Interpretation of Statutes Eliminating Metaphysics from the Doctrine of Statute Interpretation The Positive Purpose of Law Interpretation According to the Spirit of the Law Conclusions: Legal Methodology and Theory of Law I us Naturale : The Metaphysical Notion of Law and Legal Science Antiquity: the Era of Roman Law Lawyer-made Law in Rome The Middle Ages: Antiquity to Scholasticism Modern Era:The Axiomatization of Natural Law 16th - 17th Century:The End of Scholasticism 17th - 18th Century:The Cartesian Revolution - Universal Science - Jurisprudence “More Geometrico” Scientific method: General Trends of the 17th and 18th Centuries 18th Century:Wolff ’s Demonstrative Method - The Objective Axiomatization and DualisticValidity of Rationalistic Natural Law Summary and Conclusions I us Po s i t ivum : Law as an Expression of Historical Facts Theoretical and Historical Origins Legal Positivism: A Question of Law or Science? 521 525 527 528 529 531 533 538 540 542 542 544 546 547 550 551 552 554 557 561 561 566 571 573 580 580 586 587 592 597 598 598 598 A Short History of Jurisprudence Part VII

a ca l l f o r s c i e n t i f i c p u r i t y 21 2.2 2.2.1 2.2.2 2.2.3 2.3 2.3.1 2.3.2 2.3.3 2.3.4 2.3.5 German Influences on Scandinavian and Swedish Legal Theory 19th Century - The Historical Revolution - Historicism and Systematization The French Development: Ecole de l’exégèse German Development: Die Historische Schule Doctrine of sources:The Practical Downfall of Natural Law Formalization:The Pandectists and the Pandektenrecht The Development of the Historical School “Die höhere Jurisprudenz oder die naturhistorische Methode”: Die Begriffsjurisprudenz Late 19th and early 20th Century developments Interessenjurisprudenz Die Freirechtsschule American Legal Realism Die reine Rechtslehre - Kelsen Ius naturale redivivum Philosophy Scientific Reasoning Legal Science Legal Realism or Legal Dogmatism? 602 605 606 606 609 618 621 624 634 634 636 637 638 639 641 641 644 645 650 658 674 Summary, Final Remarks, and Conclusions Part VIII Index Bibliography

The purpose of the first part of this study is to illuminate and describe the development of certain ideas characteristic of the scientific output of Axel Hägerström (1868-1939), in particular his jurisprudential production.This choice of perspective immediately gives rise to issues of how the passage of time in relation to the sources should be dealt with. How should the historical dimension of Hägerström’s philosophical development be dealt with, in contrast to the purely philosophical dimension of those sources and his works?This problem expresses itself through the fact that alterations over time in the use and meaning of concepts “In reality, philosophy and the special sciences are dependent upon each other. Empirical research, without philosophy, lacks a comprehensive picture both over itself and over that soil on which it works. But philosophy, if torn asunder from all that is empirical, withers away, because its principles apply precisely to the empirical world. Hence, all disputes concerning principles are in reality grotesque, and depend upon the fact that the adversaries in question are unclear about their own limitations.”1 a ca l l f o r s c i e n t i f i c p u r i t y 23 Introduction part 1, chapter 1 1 hi storical or phi losophical method and approach? 1 Hägerström, Botanisten och filosofen: om kunskapsfilosofiens nödvändighet (1910), p. 66.My translation. Swedish:“I själfva verket äro filosofi och fackvetenskap hänvisade till hvarandra. Empirien utan filosofi saknar totalvyer öfver sig själf och den mark, hvarpå den arbetar. Men filosofien, lössliten från all empiri, förtvinar, därför att dess principer ha sin användning just på erfarenhetens värld. Därför äro alla principiella klammerier i själfva verket barocka och beroende på, att de stridande icke ha klart för sig sin egen begränsning.”

and terms will always raise questions as to whether or not such changes have actually had any substantial effect upon the main principles of Hägerström’s philosophy. Furthermore, it would be non-historical, counterfactual, and unscientific to disregard the evident fact that a person’s philosophy is more likely than not to evolve over time, which in turn will give rise to an even more pressing problem - to what extent is it defensible to consider an evolving object as being identical over time? At what level will changes in a person’s philosophy become extensive enough to justify the conclusion that it now represents two substantially different philosophical systems?Which “Hägerström” represents the “authoritative” system, the “early”or the “later”? In such a case what are the objective grounds for deciding which system that should take precedence in the exegesis of the subject matter? There are at least two alternative methods available with which the correct answer to these questions can be decided.The first is a purely historical approach, where the passage of time and the events therein are used as the sole principles, the objective grounds determining the authoritative standpoint of any given moment.The second is a philosophical approach, in which philosophical principles are used as the sole principles according to which the authoritative standpoint shall be determined. However, neither standpoint is unproblematic. The purely historical approach only reveals the change, the dynamics of a person’s ideas and is in its purest form actually nothing more than a complete chronology, for example,of a person’s scientific endeavors. Due to the predominantly chronological perspective of this approach, the chronological account can hardly take any systematic or other philosophically relevant questions and issues into consideration. On the other hand, the purely philosophical approach gives a false account of a person’s ideas, portraying them as expressions of a complete and static system of ideas cleansed from all inconsistencies and contradictions. The purely philosophical approach is thus employed predominantly p a r t 1 , i n t r o d u c t i o n 24

without any consideration given to the system’s own historical change and development. Respectively, the historical and the philosophical approaches undeniably focus on objective features of the subject matter, the object of investigation. However, since these features, viewed isolated from one another, constitute the opposites of one another, one dynamic, the other static, this may cause problems for the investigation at hand. In this investigation, the reasons for the problems indicated above are due to the genetic understanding of science that I wish to present, which is the development of ideas, the history of ideas as explained by reference to their interaction with, or application to, external facts such as, for instance, law - which is of central interest. Hence, the prime premiss is that if a specific idea of science has a specific content; it will interact with facts in a specific, content-driven manner. In science, determinations internal to the idea thus interact with external facts. Hence, a specific theory of science will develop under the pressure of external realities such as law and society, while the specific theory of science will invariably have a corresponding effect on law and society. However, from the scientist’s point of view there is the problem of finding a balance between the internal and the external elements of the scientific explanation. One difficulty is that the choice of focus (be it historical or philosophical) will affect the general outline of the investigation, running the risk that the investigation is conducted at the expense of its epistemological opposite, whereby important clues needed to solve the problems at hand, as well as clues needed to complete the research task, risk being ignored.The inconsistencies of a complete philosophical system can probably be resolved or at least explained if a historical dimension is added to the (purely) philosophical dimension of the investigation. In a philosophical investigation, the introduction of a chronology will probably reveal that, with the passage of time, apparently inconsistent and a ca l l f o r s c i e n t i f i c p u r i t y 25

problematic ideas, concepts, and theories have been rejected and abandoned in favor of the less problematic and even new ideas. On the other hand, the development and change over time of a system of ideas might again only be possible to understand if one knows the systematic structure, methodological principles, and philosophical standpoints intrinsic to the system itself - that is, knows the purely philosophical reasons for the alteration of premisses, the redefinition of concepts, and the acceptance of new ideas and standpoints. What must be added is that, the historical and philosophical standpoints do not necessarily exclude one another which in fact is impossible. On the contrary, they complement and supplement one another as well as filling the gaps of a comprehensive description of a subject matter, and do so regardless of whether the general account is “historical” or “philosophical.” One could go so far as to say that the absolute division of science and epistemological understanding of reality into “historical” and “philosophical” investigations constitutes a misnomer, as reality and facts appear to be just what they are and nothing more, whereby the terms “historical” and philosophical” become merely technical terms used to refer to different aspects of a whole. This means that the predominantly temporally determined factors of change and permanence must be surpassed, but not circumvented, by the philosophical issues of logic, systematization, consistency, and so forth. Hence, in order to identify the leading dogmatic principles of Hägerström’s philosophy one cannot avoid proceeding inductively, examining facts, and asking certain questions.What has changed over time? What has not changed over time?What is recurrent?What are the fundamental characteristics that recur or are common throughout the changes in his philosophy? What are the characteristics that can be observed during different periods of his philosophy?Which characteristics of his philosophy wither away as time goes by? The goal of the inductive avenue of research is to identify the leading principles p a r t 1 , i n t r o d u c t i o n 26

of Hägerström’s ideas, in order that these may be applied inductively in another context.What new characteristics are added as time goes by?This does not entail that the predominately historical issues of an intellectual biography over Hägerström’s spiritual development is central to the analysis of his philosophy provided here. On the contrary, it is the ideas and doctrines thus identified and their effect upon a particular branch of science that is central. As a result, both the philosophical and historical aspects must be present not only in this type of research but in all types of research, for “history” and “philosophy” are in fact nothing less than the two elements that establish knowledge and science (here, history provides matter and content, and philosophy form and structure).“History” and “philosophy” if taken by themselves, are not in fact sciences proper, but are actually the forms in which we cast our knowledge. As forms of knowledge, they contain factual and chronological components or systematic and logical structures, but one cannot have one without the other in any account because that would eventually entail scientifically unsatisfactory effects.The account would either become a structure that lacked both an inner consistency and a logical form, or lacked external reference and material content. In science, oddly enough, there is a propensity to disregard the fact that these two perspectives are correlative. On the one hand, they presuppose one another and are therefore necessary elements in the process of acquiring knowledge; on the other hand, they attempt to exclude one another and therefore tend to complement one another. Hence, this predominantly philosophic-dogmatic investigation of Hägerström’s philosophy and theory of law and legal science will be concluded with a historical survey in PartVII A Short History of Jurisprudence. As a consequence of the aforementioned declarations an “intermediate” method of description has been chosen, a choice, however, that does not entail absolution from deference to the prina ca l l f o r s c i e n t i f i c p u r i t y 27

ciples of scientific research. In fact, the choices, decisions, and deliberations made in this respect will, due to the fact that two opposite aspects of scientific investigation are combined, entail that the demands of scientific rigor are increased. For the argumentation must satisfy two opposing sets of principles simultaneously, as well as uniting the results in one coherent context. The problem is thus to decide to what extent the investigation should rely on a particular method or approach, and which of them should precedence. Finally, one must justify why these decisions have been made. Any decision made in this respect will guide the general outline of the rest of the investigation.To begin, the key factors guiding the decisions and choices have taken into account fully the purpose of the investigation, and the subject matter itself. The general purpose of this investigation is twofold: 1) to uncover the leading principle’s, the scientific genesis, and scientific forces behind Professor Axel Hägerström’s analysis of law, especially his critique of legal science; and2) and place them in a historical perspective, namely in a jurisprudential context. In order to carry this investigation to completion the balance between philosophy and history must be reflected upon. Hägerström’s vantage point is invariably philosophical, which forces the investigation to take primarily into account the philosophical perspective, but as the chosen subject matter is Hägerström’s analysis of the historical category, law, especially legal science, the historical vantage point for the investigation reveals itself.What, from a historical perspective, becomes of interest are the subjects of legal science and jurisprudence up until Hägerström’s own time.Accordingly, the investigation will oscillate between philosophical and scientific parameters, on the one hand, and historical, positive facts, that is, theories and doctrines of legal science, on the other. p a r t 1 , i n t r o d u c t i o n 28 1. 1 purpose of inve st igat ion

Because the purpose of this investigation is to uncover and analyze the principles of Hägerström’s analysis of law and his theories of law and legal science, the emphasis of this investigation of Hägerström’s philosophy of science and of law is primarily philosophical.The presentation of Hägerström’s ideas will therefore be more systematic in outline than historical.2 Furthermore, the philosophical approach is of greater explanatory value than a historical approach when explaining the intellectual impact of Hägerström’s condemnation over the subject of legal science. However, this does not mean that the historical development of Hägerström’s philosophy, or the historical setting of his ideas, will be disregarded. In addition, the emphasis of a philosophical perspective helps to illustrate the purpose of this investigation, namely an analysis of the foundations of legal science, especially dogmatic jurisprudence. Thus, the historical approach is only emphasized when it becomes essential to an understanding and explanation of the chronology of events leading to the final form of Hägerström’s philosophy and ensuing critique of science. Here, an immediate theoretical stance is taken, namely that law is only directly accessible by means of observation of facts - that is positively. Throughout this investigation, the terms positivism and legal positivismwill be used to designate any legal theory taking the positive sources of law alone as the material point of departure for legal argumentation. In this analysis of Hägerström’s ideas and work secondary sources, commentaries and literature have been disregarded in favor of primary sources.The reason for this choice is methodological, for a ca l l f o r s c i e n t i f i c p u r i t y 29 1. 2 choice of approach and method 2 Cf. Jes Bjarup, in his doctoral thesis Reason, Emotion and the Law(1982) decided neither to choose a method nor to explain why he should choose a certain method. Accordingly, his account of Hägerström’s philosophy is distinguished by an unstructured approach towards the subject matter as well as an eclectic approach towards facts. 1. 3 choice of mate rial

much of the secondary sources and commentaries to Hägerström fail to clarify his ideas and tend to isolate them, either separating the ideas from object sciences or by burying them in political analyses of his theory of law, thereby missing the central aspect of his analysis of law, namely his theory of jurisprudence, which is an expression of his combination of philosophy and science. In order to undertake this analysis of Hägerström’s theories of law and legal science I am thus forced - much in the same manner as Professors Curt and Lauritz Weibull at the beginning of the 19th Century when they stressed that historians must return to primary sources in the reconstruction of historical events - to rely principally on primary sources in this analysis of the ideas of the founding father of the Uppsala School of jurisprudence. However, for the rest of the investigation both primary and secondary sources and literature are used. For the benefit of those readers who do not read or speak Swedish, all direct quotes and excerpts will use either German or English translations, where such already exist, or the author’s own translations into English. In either case, translations are located in the main body of the text, while the Swedish original texts are located among the footnotes. Furthermore, I have chosen to neither refer to nor use any translations, if the original text originally was published in another language than Swedish - that is, German.All references in footnotes will refer to Swedish original text, directly followed by references to incident German and English translations. Finally, all interpretations and analyses of Hägerström’s texts have been conducted on the basis of the original language of publication - that is, Swedish or German. p a r t 1 , i n t r o d u c t i o n 30 1. 3. 1 b i bl iog raphical note s

In this study, the historical backdrop proper from which the ideas of the Uppsala School emerged will be cast in the light of the history of jurisprudence (PartVII). Hence, historical facts traditionally used to describe and explain the genesis to a set of ideas (what they reacted against and represented,what their agenda was - the subject’s life - as well as the general social political, economic, religious, and intellectual factors of his day and age) will be eclipsed by the formal conditions to the genesis of these ideas, namely science in general, and jurisprudence in particular - which will thus serve as material to the historical setting of Hägerström’s philosophy.This inquiry will therefore have to be conducted as an investigation typical to those of the history of philosophy, but must due to the choice of subject (legal history, from a doctrinal point of view) endeavor to keep within a strictly legal, that is dogmatic, framework. Thus, the general historical backdrop of society will not be analyzed, nor will the moral or political expediency of the Uppsala School’s ideas be discussed and evaluated. The decisive reason against a moral or political analysis of Hägerström’s theories is that such discussions, since they can not be given a proper scientifically valid answer, are best left outside any scientific investigations and discussions. The different details, legal problems and issues, of Hägerström’s philosophy will therefore, as far as possible, only be connected to a specifically legal context, which is restricted to legal science insofar as its results are to be understood to constitute a source of law - that is doctrine, which is the case according to the Scandinavian legal tradition - thus connecting the investigation of the jurisprudential issues to the specific methods and conditions of legal argumentation according to the predominantly German origins of the Swedish tradition.The philosophical analysis and account of Hägerström’s philosophy will therefore constitute the prolegomenon and propaedeutics to the legal part of this study. a ca l l f o r s c i e n t i f i c p u r i t y 31 1. 4 corre spondence betwe en phi losophy and hi story, formal i sm and emp i rici sm

In PartVII A short History of Jurisprudence the philosophic-dogmatic plan laid out for the analysis in Part I Introduction will be deviated from and a digression into the chronology of legal history will take precedence. Here the philosophic-dogmatic perspective of Hägerström’s analysis is contextualized and the emphasis of the analysis shifts to a chronological-empirical perspective, mainly describing the general traits of the central issue of jurisprudence from Roman antiquity to the 20th Century, namely the metaphysics of law, especially the metaphysics of qualified legal knowledge. Does jurisprudence correspond to the concept of ideal law or to the concept of positive law? The reason why such an empirical avenue must be introduced is that the philosophic-dogmatic analysis has its limitations, insofar as it, due to its formalistic nature, stresses internal congruency and coherency over correspondence to external reality and factual verification. The philosophic-dogmatic analysis may thus be internally consistent and coherent, and still lack correspondence to external facts and reality. In the historical part of the investigation the different dogmatic perspectives of law provided by natural law and various schools of legal positivism (the Historical School of jurisprudence, Begriffsjurisprudenz, Interessenjurisprudenz and so on) will serve as comparison material making a test of validity possible. Accordingly, the main purpose of Part VII is to reconnect the formal aspects of the investigation with its material, that is to say, to test whether or not the internal aspects of the investigation correspond to external facts. Hence, if the analysis of Hägerström’s ideas correspond to external, empirical facts - that is, correspond to the objective features of dogmatic perspectives of jurisprudence other than Hägerström’s - then the hypothesis of this investigation, namely that Hägerström’s critique was directed the unscientific elements of science and within the legal discourse that it constituted an attempt to safeguard the validity of jurisprudence, stands scrutiny and is accordingly verified. A further reason why the perspective shifts to the historical-empirical is p a r t 1 , i n t r o d u c t i o n 32

that it serves a didactic purpose insofar as it compiles and structures the disparate issues addressed by Hägerström in his analyses of jurisprudence under two main issues of legal theory, natural law, and positive law.These are issues that on the one hand, follow one another chronologically, and on the other, constitute one another’s logical and causal opposites, denying what the other holds as being true as well as functioning as alternating historical reactions to one another. However, these issues will only be addressed from the scientific perspective insofar as they affect the practical status of the jurisprudential contribution to the sources of law.The direct political, ethical, and religious reasons why one theory of law and legal science has prevailed over the other will therefore only be referred to briefly, as any such analysis, strictly speaking, falls outside the scope of this inquiry. In the following parts of this work, Parts II Theoretical philosophy; III The Development after Das Prinzip derWissenschaft; and IVMoral Philosophy the intention is to briefly identify and describe the changes in Hägerström’s philosophy over the course of time.The purpose of this account is to establish inductively the leading principles of Hägerström’s philosophy and philosophical development, principles that will give a valid account of the philosophy of Hägerström after the idealistic and subjectivistic period of his (relative) youth.The plan is to use these principles as points of departure for the remainder of the investigation.The questions to be asked are these: Are there any common denominators in Hägerström’s philosophy? If so, what characterizes these common denominators? Since this part of the investigation has a predominantly philosophical dimension, the emphasis of these must be on a philosophical perspective.The purpose of the analysis in Parts II-IV is therefore to identify, depict, describe, and to give an account of those principles of Hägerström’s philosophy that the historically supported, but not guided, analysis will provide. a ca l l f o r s c i e n t i f i c p u r i t y 33 1. 5 gene ral plan

In the words of Friedrich Carl von Savigny (1779-1861), the historical analysis of the material will: “ ... jeden gegeben Stoff bis zu seiner Wurzel zu verfolgen, und so sein organisches Princip zu entdecken, wodurch sich von selbst das, was noch Leben hat, von demjenigen absondern muß, was schon abgestorben ist, und nur noch der Geschichte angehört.”3 Thereby are the leading principles of Hägerström’s science to be established. In Parts VLegal Science andVI The Will-theory the philosophical results from Parts II to IV are applied to an empirical material, namely Hägerström’s extensive critique of legal science, thereby reconnecting philosophy and science. Finally, in PartVII A Short History of Jurisprudence, the results of Hägerström’s own investigations are contextualized and contrasted to empirical reality in the form of the major trends of jurisprudence throughout the western history of law, namely the struggle between metaphysical law and positive law as standards for law proper. p a r t 1 , i n t r o d u c t i o n 34 3 Savigny,“Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft,” inThibaut und Savigny: ihre programmatischen Schriften, p. 109.

Hägerström’s investigations into the nature of knowledge. It is intended to show the substratum of Hägerström’s epistemological research, namely the dismantlement of metaphysics by the reconstruction of both the possibility and necessity of actual correspondence between subject and object in the cognitive relationship.This is a relationship whose existence is problematic to the metaphysical traditions investigated by Hägerström. Once this is clear we shall see that the primary object of Hägerström’s philosophical investigations is not so much philosophy for its own sake, as philosophy for the sake of object sciences, whose existence depends upon the possibility of correspondence between the ideas of the observer and the qualities of the observed.Hence, this section will illustrate Hägerström’s method of investigation, which is the subjection of the investigated material to a twin epistemological test, which amounts to his conceptual analysis. First, there is the investigation of formal validity (which is a criterion for reality); and, second, the investigation of material correspondence (so-called existence, which is a criterion for object-knowledge).This formulation of the problem, that the object sciences must be validated, entails a tacit principle of disposition to the following sections, according to which the subjectivism of science as well as its alternatives are thoroughly analyzed and tested in order to determine what the a ca l l f o r s c i e n t i f i c p u r i t y 35 Theoretical Philosophy: “Die kopernikanische Umwälzung” part i i , chapter 1 In the following part of this work, the focus will be upon

p a r t i 1 , c h a p t e r 1 36 knowledge seeking subject has scientific license to perform.The main subject matter of Hägerström’s philosophy is the analysis of metaphysics, which amounts to an analysis of subjectivism, and its incident phenomena idealism and realism. In general the terms are defined as follows: Subjectivism is the doctrine that the standards of valid knowledge and justified beliefs have their basis in our subjective beliefs; idealism is the doctrine that either, or both, reality and knowledge thereof is a function of the activities of the mind alone, and is spiritual to its nature; and finally, realism is the doctrine that reality exists independently of the mind and our perceptions of reality, in its extreme realism includes the notion that reality to its nature is incognizable (metaphysical realism). In1925 and 1929, Hägerström wrote two summaries of the general outlines of his scientific production and circulated them to a broader audience than his regular group of scholars and university students.1 In the first of these two summaries, a concise article entitled “Hägerström” published inFilosofiskt lexikon, Hägerström described his philosophy in a seemingly straightforward way as being mainly concerned with the fields of epistemology, moral philosophy, and legal philosophy.2 This characterization is rather interesting, since it shows the importance attributed to epistemological research. Furthermore, the characterization also indicates the general purpose of epistemological research, namely an ensuing application in specific fields of philosophy and science. In the latter summary, Die Philosophie der Gegenwart in Selbstdar1 häge r ström about häge r ström 1 Hägerström’s contribution to the philosphical series Hägerström, DieWissenschaft der Gegenwart in Selbstdarstellungen:Axel Hägerström, ed. Schmidt, vol.VII. Swedish translation: Hägerström, “Framställning av den egna filosofien,” in Filosofi och vetenskap. English translation: Hägerström, “A Summary of my Philosophy,” in Philosophy and Religion. The article Hägerström, “Hägerström,” in Filosofiskt lexikon. has also been translated into English. See: Hägerström, “The Philosophy of Axel Hägerström,” in Philosophy and Religion. 2 Hägerström, “Hägerström.”; “The Philosophy of Axel Hägerström.”