The Question:

1. Hägerström’s anti metaphysical and naturalistic approach is followed by Olivecrona and

Ross. Scandinavian Realists share a commitment to use the method of conceptual analysis
to remove abstract concepts and metaphysical entities about law.

Critically discuss the approach of the Scandinavian Realists in challenging the traditional
ways of legal thinking which they opine should be replaced by scientific thinking about
morality and law.

Understanding the concepts:

What is the method of conceptual analysis that the Scandinavian
Realists talk about?
What is meant by conceptual analysis?
- (Methodology) Conceptual analysis consists primarily in breaking down or
analyzing concepts into their constituent parts in order to gain knowledge or a better
understanding of a particular philosophical issue in which the concept is involved
(Beaney 2003).
- The primary reason for using conceptual analysis is to understand the meaning of an
idea or concept. The secondary reason is to determine how that idea or concept
relates to other philosophical problems.

What is the abstract concept that the Scandinavian Realists talk about?
- An abstract concept is an idea that people can understand that has no physical form.
- Examples of abstract terms include love, success, freedom, good, moral, democracy,
and any -ism (chauvinism, Communism, feminism, racism, sexism).

What about the concept of metaphysical entities about the law? What is that
concept?
- Metaphysics is a type of philosophy or study that uses broad concepts to help define
reality and our understanding of it.
- Metaphysical studies generally seek to explain inherent or universal elements of
reality which are not easily discovered or experienced in our everyday life.
- Metaphysics might include the study of the nature of the human mind, the definition
and meaning of existence, or the nature of space, time, and/or causality.
Answering the questions:
What is the view of the Scandinavian Realist?
- Realism denounces traditional legal rules and concepts
- They wanted to get rid of thinking about law of all the mystifying references to
abstract concepts and metaphysical entities.
- Hagerstorm: concepts are embedded in the facts of physical reality that make an
impact upon the minds of human beings using their senses of sight and touch to arrive
at knowledge of reality to be expressed in meaningful words in terms of concepts that
can be used to express judgements since the truth of a judgement is the reality of the
thing.
- Use a conceptual analysis in order to determine whether words correspond to facts
and thus express concepts or rather are words devoid of meaning.
- Modern law is equally a ritualistic exercise: words and gestures had a magical effect
the act was a ritual.
- Emphasise the psychological significance of legal ideas.
- Practical implications.
- The notion of binding force of law only exists in the mind of a person because of the
psychological pressures which exert an influence on his conduct and motivates him
for regularity of behaviour which is an attribute of a legal system.
- Independent imperatives: when thoughts of unlawful acts enter the mind of a person it
is soon counteracted by the involuntary moral impulse and calculations of the risks
involved.
- Principal rules of law are founded on an abstract norm; or that the law is founded on
our ideas of justice.
- The law certainly cannot be a projection of some innate moral convictions.

What is the approach of the Scandinavian Realists in challenging the traditional

ways of legal thinking?
- Realism: Concentrates more on what the courts do in reaching the final decision in the
case before them.
- The Scandinavian approach: substantive law and in their legal science remained
outside the main legal families of the world.
- Their law is less codified, as a result, more judge oriented.
- Scandinavian penchant for social welfare.
- The jurists’ rejection of metaphysics comes out in the rather down-to-earth
Scandinavian approach to crime and its treatment.
- Approach: replace traditional way of legal thinking to a scientific thinking of morality
and law.
Why do they opine that the traditional ways of legal thinking
should be replaced by a scientific thinking about morality and
law?
- They wanted to find solution to the practical problems of man in society by moving
towards a scientific thinking of morality and law.

What are the traditional ways of legal thinking as they talked about?
- The law is a set of customs, practices and beliefs that are accepted as obligatory rules
of conduct by indigenous peoples and local communities.

What is wrong with the traditional ways of legal thinking?

- Tensions and inconsistencies between those embedded in legal doctrine at any time
are bound to occur.

What is the scientific thinking?

- It refers to both thinking about the content of science and the set of reasoning processes
that permeate the field of science: induction, deduction, experimental design, causal
reasoning, concept formation, hypothesis testing, and so on.

What is the relation between morality and law?

- Law and morality are intimately related to each other. Laws are generally based on
the moral principles of society. Both regulate the conduct of the individual in society.
They influence each other to a great extent

What is the scientific thinking about morality and law they talked about?
- Practical implications and not just depends on the theorical sides.

How the moral standards of every single individual are

fashioned? What is the influence of the use of force according to
the rules of law in this respect?
- Character of a person is formed under the influence of his surroundings.
- Ideas of a person are also branded by the society where we live in.
- The law cannot be a projection of some innate moral convictions since it existed long before
a person was born: when a person grows up and becomes acquainted with the conditions of
life, he is subjected to its influence.
- A firm psychological connection is established between the idea of certain actions and
certain imperative expressions: a moral influence of the law is required for its effectivity.

How the rules of law can thus be absorbed by the whole people?
- The suggestive effect of the imperatives is enormous when there is power behind them-
here the majestic power of the state, working relentlessly according to the rules about
sanctions. This power is surrounded by august ceremonies and met with a traditional and
deep-rooted reverence. All this combines to make a profound impression on the mind,
 causing us to take the fundamental “commands” of the law to heart as objectively
binding. We do it all the more readily since we understand, at least instinctively, the
necessity of these rules for the maintenance of peace and security.
- The first requirement is that the rules appear as reasonable to most people (generally
recognised as desirable), otherwise the rules will have no moral effect or may even arouse
moral indignation.
- The application of sanctions must also be regular as well as impartially fair.

Cases to support:
1.