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A Critical Appraisal of Karl Olivecrona's Legal PhilosophyThe Binding Force of Law

A Critical Appraisal of Karl Olivecrona's Legal Philosophy: The Binding Force of Law [Olivecrona rejects the view that law has binding force, on the grounds that the (alleged) binding force is such a peculiar property that one must locate legal rules that have binding force in some sort of supernatural world, where this property can make sense, and that there can be no connection between such a world and the world of time and space. He also maintains that since legal rules do not and cannot have binding force, they cannot confer rights and impose duties, or more generally, establish legal relations. This critique is at the foundation of Olivecrona’s substantive legal philosophy. I argue, however, that while Olivecrona is right to maintain that legal rules do not have binding force in the strong, moral sense that he contemplates, and that they cannot establish legal relations in this sense, legal rules can nevertheless establish legal relations in a weaker, non-moral sense, and that we can account for the existence of legal relations by invoking the idea of a convention. Following Eerik Lagerspetz, I propose that we say that a source of law, SL, exists if the members of the relevant group of people (1a) believe that SL exists and (1b) believe that the others in the group believe that SL exists, and (2) act accordingly, that is, speak of SL as existing and, if occasion arises, treat SL as existing, at least partly because they have the beliefs (1a) and (1b). If we do, we may then say that a legal rule exists if it can be traced back to such a source of law.] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

A Critical Appraisal of Karl Olivecrona's Legal PhilosophyThe Binding Force of Law

Part of the Law and Philosophy Library Book Series (volume 108)
Spaak, Torben
Springer Journals — Jun 18, 2014
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15 pages

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Publisher
Springer International Publishing
Copyright
© Springer International Publishing Switzerland 2014
ISBN
978-3-319-06166-5
Pages
111 –125
DOI
10.1007/978-3-319-06167-2_7
Publisher site
See Chapter on Publisher Site

Abstract

[Olivecrona rejects the view that law has binding force, on the grounds that the (alleged) binding force is such a peculiar property that one must locate legal rules that have binding force in some sort of supernatural world, where this property can make sense, and that there can be no connection between such a world and the world of time and space. He also maintains that since legal rules do not and cannot have binding force, they cannot confer rights and impose duties, or more generally, establish legal relations. This critique is at the foundation of Olivecrona’s substantive legal philosophy. I argue, however, that while Olivecrona is right to maintain that legal rules do not have binding force in the strong, moral sense that he contemplates, and that they cannot establish legal relations in this sense, legal rules can nevertheless establish legal relations in a weaker, non-moral sense, and that we can account for the existence of legal relations by invoking the idea of a convention. Following Eerik Lagerspetz, I propose that we say that a source of law, SL, exists if the members of the relevant group of people (1a) believe that SL exists and (1b) believe that the others in the group believe that SL exists, and (2) act accordingly, that is, speak of SL as existing and, if occasion arises, treat SL as existing, at least partly because they have the beliefs (1a) and (1b). If we do, we may then say that a legal rule exists if it can be traced back to such a source of law.]

Published: Jun 18, 2014

Keywords: Legal Rule; Legal Norm; Binding Force; Moral Sense; Legal Positivist

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