In essence, the Freirechtsschule was concerned more with the application of law than with the construction of a valid theory of law. Rather than understanding the legal application of law as being the result of a formally objective and logical process, taking objective law as its premiss, the Freirechtsschule effectively denied that the judge was objectively bound by statute, and held that the judge’s decision was ultimately to be based upon intuitive considerations - considerations that were the shortest route to justice. In fact, judges were considered to have a near absolute freedom to adduce justice, and use the sense of justice, whenever needed to decide a problematic case.298 If Hägerström’s theory of legal science and its demands for consistency in argumentation and corroboration of findings were to be applied to the doctrines of the Freirechtsschule, then Hägerström’s reaction to it follows naturally. In essence, Hägerström observes that the Freirechtsschule leaves the field open for all kinds of interpretations, as the judge is endowed with an almost absolute freedom to interpret and apply the law as he sees fit, even contra legem299 - which is no method answering to objective standards, and at best could be likened to natural law in all its indeterminacy and unpredictability. InLegal Realism,American and Scandinavian(1997) Michael Martin compares American and Scandinavian Legal Realism and illustrates the considerable differences existing between the two Schools.300 While the former is preoccupied with the sociology of law, a ca l l f o r s c i e n t i f i c p u r i t y 637 the ideals of German legal decision-making at the beginning of the 20th Century. Fuchs, Die Gemeinschädlichkeit der konstruktiven Jurisprudenz, pp. 255-260. 298 See Koschaker, Europa und das römische Recht, pp. 192-193; Wieacker, History, pp. 457-458; Schlosser, Grundzüge, pp. 243-244. However, according to Muscheler, the free theory of law finally formulated by Hermann Kantorowicz (1877-1949) indicates that the application of law is to be held within certain bounds. See Muscheler, Relativismus und Freirecht: ein Versuch über Hermann Kantorowicz, pp. 173-174. 299 Hägerström, Objektiva rättens begrepp, pp. 20- 27; “The Notion of Law,” pp. 78-88; “Är gällande rätt?,” pp. 83-84; “Is Positive Law?,” pp. 42-43. 300 Martin, Legal realism,American and Scandinavian, passim. 2 . 3. 3 ame rican legal real i sm
RkJQdWJsaXNoZXIy MjYyNDk=