O
Olivecrona, Karl
Carla Faralli
Alma Mater Studiorum – Università di Bologna,
Bologna, Italy
Karl Olivecrona (1897–1980) is recognized, next
to Alf Ross, to be among the leading exponents of
Scandinavian legal realism (Bjarup 1978;
Castignone 1974; Hierro 2008; Strömholm and
Vogel 1975; Vogel 1972). He was a pupil of
Axel Hägerström, describing the latter as his
“beloved and venerable teacher” and remarking
that his own inquiry into law “would not have
been possible but for the foundation provided by
Hägerström’s speculation.”
In fact, Olivecrona works Hägerström’s novel
conclusions into what is properly a general theory
of law developed from a realist point of view, a
theory that finds completion in the second edition
of Law as Fact (Olivecrona 1971). This second
edition is described by Olivecrona as an “entirely
new book,” even as he retains the same title as the
first edition (Olivecrona 1939), signaling that his
basic approach to the study of law remains
the same.
Olivecrona also embarks on historical inquiries
along the lines suggested by Hägerström, seeking
to trace the origins of the concepts of Roman
law (Olivecrona 1949), at the same time as he
takes up other investigations, looking into natural
# Springer Nature B.V. 2019
M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy,
https://doi.org/10.1007/978-94-007-6730-0_291-1
law thinking (Olivecrona 1969) and ancient
Swedish law.
From a critical standpoint, Olivecrona’s theory
takes aim at both natural law theory and legal
positivism. The latter is found to be at fault for
continuing to rely on metaphysical notions, fore-
most among them that of will, for which reason its
theory of law, despite its pretenses, fails to be
scientific (Pattaro 1972).
In the positive, or constructive part, he con-
nects some brilliant but otherwise disconnected
insights offered by Hägerström and Anders
Vilhelm Lundstedt, weaving them into a theory
based on an analytical method applied to the lan-
guage of law (Spaak 2014, 2016).
The language of law, according to Olivecrona,
is a directive language: it uses terms, such as right
or duty, that have no semantic referent, in the
sense that nowhere in the spatiotemporal world
is there a phenomenon that can be pointed out as
corresponding to them. Thus there is no objective
reality corresponding to the concept of a right, and
yet this is an operative concept, for on its basis
changes are made affecting the behavior and con-
crete situations of those who are subject to the law.
Hägerström explained this phenomenon by
pointing to the magical and psychological origins
of the concepts of rights and duties, understood as
real powers and constraints. Lundstedt, the most
radical among the authors who have denied that
there is any objectivity to rights and duties, did not
manage to do away with the corresponding terms
2 Olivecrona, Karl
and settled for a solution that would have us use
them in quotation marks.
Olivecrona clarifies that – whatever origin
these concepts may have: be it magical or psycho-
logical or both – they are so ingrained in our
common way of thinking, and so entrenched in
the machinery of the law, that we can no longer do
without them.
Their function is not descriptive – in a manner
that even such natural lawyers as Hugo Grotius
and Samuel von Pufendorf might have thought
conceivable, for they explicitly believed in the
reality of powers and constraints of a spiritual
kind created by the will – but is rather directive,
in that they tend to influence behavior. The term
right, for example, functions as a sign and is
almost unreplaceable in that respect, for it signals
a permission to the rightholder, while signaling a
prohibition to everybody else. The rightholder, in
other words, can behave in relation to a good in
ways that all other legal subjects may not.
Even so, the terms right and duty cannot sim-
ply be considered as signs serving to replace a set
concrete facts or reduce it to a condensed form, for
they also contain an imperative element that acts
psychologically to drive or rein in the behavior of
legal subjects.
It is a function entirely similar to the one
performed by the red and green of a stoplight.
Olivecrona revisits legal concepts born in
social and cultural concepts quite different from
ours, and pregnant with meanings that now appear
unacceptable from a scientific standpoint, in what
seems like an effort to reuse and justify these
concepts on a realist approach.
In order for these terms to serve a directive
function as signs, they need not have any specific
semantic referent: what matters is that we are
accustomed to receiving a certain sign in a con-
stant and uniform way in keeping with commonly
accepted rules.
After all, examples of this kind abound in
ordinary language, where words are legion that
no longer have a semantic referent and yet have
practical effects of great consequence.
A case in point is the word for currency such as
the pound sterling or the US dollar (Olivecrona
1957): certainly it does not correspond to the piece
of metal or paper bearing a pound sterling or US
dollar design and denomination. In times past,
when gold coins were in use, one might have
thought that the word currency stood for a certain
amount of gold as its semantic referent, but today
it works as an ordinary word used in accordance
with well-established conventions, and it is in this
way that it can carry out the essential function it
serves in economic and social life.
Norms are not commands but “independent
imperatives,” that is, representations of models
of behavior expressed in the imperative form.
Indeed, in contrast to an actual command –
which implies a face-to-face interaction between
a command issuer and an obeyer, as well as a
relation of subordination between the two, and
which is episodic – a norm is a “depersonalized”
command, in that the commanding is done by an
abstract entity (a legislative body) and the recipi-
ents consist of the whole of the citizenry, and its
validity lasts indefinitely, until the norm is
amended. The coercive impulse to do what a
norm requires is not directed at any single subject
but takes shape as an awareness of an objectively
existing duty.
Next to the norms prescribing that we do or not
do something, there are others that govern the way
in which we may gain, transfer, or lose rights or
have a certain status conferred on us (as when
someone enters into marriage, is appointed
judge, or is elected as a member of parliament).
These norms can take a declarative form without
naming any addressees, and in order to account
for what they do, Olivecrona draws on the work of
J. L. Austin (1975), characterizing them as per-
formatory imperatives, examples of which are the
words uttered in christening a ship or marrying a
couple. Even though these performatives are
expressed in the indicative mood, they do not
describe a situation but either prescribe or bring
it into being: their effect is not to create real
qualities or relations but to change the standing
of certain persons in relation to others. Outside the
legal and social context in which performatives
are used, they are no more than meaningless
words.
The language of performatives, according to
Olivecrona, traces its origins to the magico-
Olivecrona, Karl
religious sphere: it was once thought that words
could change reality and that by describing events
yet to take place, they could turn these into reality
proper through the power exerted by the utterance
of magical formulas. On a realist approach, words
are tools suited, not to modifying reality in virtue
of an inherent power they supposedly possess, but
to carrying out functions of social control.
The theory of law outlined by Olivecrona can
be qualified as realist-normativist (Pattaro 1980):
the law is conceived as a fact, that is, as a social
mechanism, a psychosociological reality. Norms
are not the expression of a higher will but the
resultant of a complex play of social forces, mean-
ing that no de facto power creates norms, but, on
the contrary, norms create powers. In the norms
that govern the exercise of power lies the founda-
tion of the power exercised by certain people: if
lawmakers enact laws that are observed and
judges issue rulings that are enforced, it is because
they are lawmakers and judges according to the
constitution, which in turn is observed for histor-
ical, psychological, and social reasons.
A valid norm is one that is felt to be binding
and is observed by a given social group, especially
judges, but norms cannot be equated with the
behavior through which they are enacted: a legal
norm is the cause; the behavior of its addressees is
the effect. No norm can be valid if it is ineffica-
cious (i.e., if it does not cause its addressees to
comply), but in order to be efficacious, it needs to
be perceived as socially binding. This psycholog-
ical element (the sense of a norm’s bindingness) is
what makes it possible to recover the normative
element, the distinctive trait of Scandinavian
realism.
Having shown that the legal concepts currently
in use are not scientific, Olivecrona applies to
directive language the theory by which analytical
philosophy explains the functions of language.
Concepts such as “norm,” “rights,” and “duty”
do not belong to a reality of their own distinct
from the social, empirical reality in which they
3
perform their directive function as signs.
Olivecrona accordingly concludes that the lan-
guage of law is not descriptive but rather serves
a directive function: it is a language capable of
influencing behavior, and it functions as a tool of
social control.
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