LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
JURISPRUDENCE LECTURE OUTLINE
ALL STUDENTS PLEASE NOTE:
The outline below is intended to assist students in following the
lectures in the course and in understanding the recommended
reading. The outline is not a substitute for the lectures and
reading. The outline is not intended to be comprehensive.
Students who have merely familiarised themselves with the outline
but not attended the lectures and read the prescribed text and
readings will be inadequately prepared for the exam and at
substantial risk of failure.
Examination questions will increasingly ask students to apply the
concepts and arguments taught in the course to an issue or
problem. Students will be best prepared to deal with the paper who
have attended the lectures or weekend schools and read widely.
Dr C Birch (LEC Winter 2006 Session)
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LECTURE 5
SCANDINAVIAN REALISM AND HANS KELSEN
Introduction
The Scandinavian realists and Hans Kelsen were among the more significant legal
philosophers in Continental Europe at the end of 19th century and the first half of the 20th
century. Their theories were, like Bentham's, positivistic and anti-natural law.
Science Philosophy and Metaphysics
The late 19th and early 20th century saw a series of extraordinary breakthroughs in the physical
sciences, particularly in physics. The work of people such as Max Planck, Bohr, Einstein and
Heissenberg has made its way into popular culture. The beginning of the 20 th century saw
philosophers look to science as a paradigm for knowledge, and to inquire whether principles
might be derived from a study of science which could illuminate non-scientific areas of
thought.
Such crucial aspects of the scientific model of knowledge were seen as: -
1.
Being value free;
2.
Being based on experiment and the application of mathematics and logic; and
3.
Avoiding the postulation of entities that are not observable or that do not issue in
observable effects.
Some philosophers saw science as standing in contrast to traditional metaphysics which had
sought to uncover some knowledge about the nature and structure of the universe from pure
argument.
In the first decades of the 20th century this anti-metaphysical view of philosophy was
influential amongst a group of philosophers known as “the Vienna Circle” who stressed the
importance of empiricism as the foundation of knowledge.
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Scandinavian Realism
What marked all the Scandinavian realists was an attempt to produce an empirical description
of law.
Hagestrom (1868-1939) proposed radical reductionism. He argued that jurists should not
appeal to any non-natural entities when giving descriptions of law. Non-natural entities were
entities that did not form part of the spatiotemporal world.
To say that in Australia we have a valid law X was, Hagestrom would have argued, capable of
reduction to descriptions of human behaviour. These descriptions could include observed
patterns of human behaviour, mental states and predictions about future behaviour.
Karl Olivecrona (1892-1980) described the task of jurisprudence in the opening of his book
Law and Fact as “fitting the phenomena of law into the spatiotemporal world”. He likewise
sought to explain law by reference to descriptions of psychological states.
Some criticisms of radical reductionism
Law involves complex intentional mental states including beliefs and thoughts about or
expressed in language.
It is a controversial issue at the forefront of contemporary philosophy of mind as to whether all
of our mental phenomena are capable of explanation in reductionist terms. Is it possible that we
will one day be able to give a complete description to all of our thoughts couched in terms of
descriptions of brain states and neurological phenomena?
A related difficulty is that a reduction of the sort proposed by the Scandinavian realists even if
possible is un-illuminating about the true nature of law. Such a description would not be
capable of being used for any conceivable practical purpose.
Alf Ross (1899-1979) attempted a reductionist description, although without going to such an
extreme as Hagestrom.
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
Alf Ross described laws as directives to legal officials.


A law exists if the postulation of such a directive allows one to predict with accuracy
the behaviour of legal officials.


Ross’ description has two unusual features. Firstly, he treats laws as directives to
officials not to the community as a whole. This is not how we normally view law.


Secondly, Ross treats laws as predictions about how legal officials will behave in the
future.
This is quite close to the way in which law was described by some of the American realists.
Hans Kelsen (1881-1973)
Kelsen describes his theory of law as a pure theory of the science of norms.
Kelsen wanted to isolate what was unique to legal structures. It was a pure theory because it
would describe law without reducing it to psychology, sociology or the like. This distinguished
Kelsen’s views from the Scandinavian realists.
In describing it as a science of norms Kelsen wanted a description of the structure of law that
was free of evaluative terms.
Kelsen characterised laws as rules or norms. Laws are always part of a system of norms having
relationships of validity which they derive from higher norms. A norm was a valid norm if a
higher norm authorised the making of the lower norm and it had been made in accordance with
the higher authorising law.
The Grundnorm
Kelsen recognised that the chains of validity do not regress indefinitely and one will ultimately
run out of higher authorising valid norms. What confers validity on the system as a whole is
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not therefore another positive rule of law but what Kelsen called the grundnorm sometimes
translated as ‘basic norm’.
Kelsen described the grundnorm as the fundamental assumption made by people in society
about what would be treated as law. It is not the constitution which for Kelsen was another
positive norm.
It is apparent that what particular grundnorm applies in a society simply depends upon what
fundamental assumptions are made by the members of that society. The identity of the
grundnorm is ultimately a matter of sociological fact.
Some people have argued that it follows from Kelsen’s theory that if the assumption should
change as a result of a revolution or coup d’état, and people apply the new assumption, then
laws made with the new assumption will be valid. Kelsen’s theory appears consistent with
maxim “might is right”.
Whether or not this controversial assumption flows from Kelsen’s theory has been considered
in cases involving radical norm change. See
Madzimambuto v Lardner-Burke [1969] AC 645
The Republic of Fiji v Chandrika Prasad (Court of Appeal of Fiji Islands, 1 March
2001) and;
Lindell, Why is Australia’s Constitution Binding, Federal Law Review, volume 16,
1986, p.29.
On a decision in Australian law about what appears to constitute the grundnorm see Trethowan
v Attorney General for New South Wales [1932] AC 526.
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