Legal Realism and Legal Positivism

Abstract

In this chapter, I argue that even though Olivecrona explicitly rejects legal positivism, conceived as the theory that law is the content of a sovereign will, he is best understood as a legal positivist as this theory is understood by contemporary jurisprudents. Having discussed Olivecrona’s critique of will theories of law, which follows closely Hägerström’s critique of such theories, and having pointed out that Olivecrona introduces a distinction between voluntarist and non-voluntarist theories of law and maintains that a competent theory of law must fall into the latter category, I argue that the category of non-voluntarist theories of law is too heterogeneous to play a meaningful role in the debate about the nature of law. I also discuss the main tenets of contemporary legal positivism and argue that there is to be found in Olivecrona’s legal philosophy a commitment (1) to an abstract, but not to a more concrete, version of the social thesis, (2) to the separation thesis, and (3) to the thesis of social efficacy, but not to the semantic thesis. In addition, I discuss Olivecrona’s illuminating distinction between English (or naturalist) legal positivism and German (or idealist) legal positivism and its relevance to certain questions raised in the well-known Hart/Fuller debate about wicked legal systems. Finally, I argue that while many contemporary legal positivists conceive of law as a system of norms or rules, and while Olivecrona does maintain that law is a matter of rules, he does not see law as a system of rules.