Hägerström on Law-Making

Abstract

The relationship between law and politics is one of the most debated topics in legal theory. There is no consensus on the range and scope of the political and the legal element in law. Legislation or law-making is conceptually ambiguous because it indicates the law which has been promulgated, and therefore the primary object of many modern theories of law, but also the process of making it, that many theories of law usually locate outside the scope of jurisprudence and more specifically in the realm of politics. The first section sets the problem of legislation by distinguishing a number of different problems that often appear indistinctly under this label. Standpoints can be viewed according to a spectrum stretching from legal theories holding politics to essentially permeate the law to those claiming the opposite (Section B). The aim is to situate Hägerström's view on law-making along this spectrum. My claim is that Scandinavian realism holds middle ground in that ideological constructs structurally affect the law yet legal normativity cannot be reduced to the will of de facto holders of power: law cannot be reduced to any idea of will, including that of the majority or of the people. To substantiate this claim the article investigates Hägerström's view on the foundation of a new constitution pursuant to a political revolution (Section C), the ultimate touchstone for maintaining the (in)distinctiveness of law and politics. His bottom line is that the problem cannot be explained in terms of discovery of public interest (Section D), because of his non-cognitivist approach (Section E). But it cannot be explained in terms of decision-making either (Section F). Law-making here amounts to access and control of technical procedures grounded in a form of faith, or in his own terms 'ideas governing men's minds' (Section H).

Keywords: Hägerström, Legal Theory, Political Theory, Scandinavian Legal Realism, Jurisprudence, Ethics, Meta-ethics, Constitutionalism, Revolution