Brief Historical Background of A V Lundstedt Lundstedt (1882-1955) was a Swedish jurist and a proponent of Scandinavian Legal Realism. He was also a professor of Law at the University of Uppsala in Sweden, from 1914 to 1952. Similarly to Haegerstrom, Ross and Olivercrona, he resisted the exposition of rights as metaphysical entities- contending that realistic legal analysis should dispense with such ideology. Beyond being a prominent tort law scholar, Lundstedt was also a social democratic member of the Swedish Parliament from 1929 to 1948.
The body of his work can be viewed as an attempt to revolutionise the field of jurisprudence by transforming the law into a catalyst for political and social reform. Legal Knowledge and Legal Science Lundstedt is regarded by some as the most extreme and buoyant of the Scandinavian realists. Lundstedt advocated that legal science should be conceived of as a real science, and to that end he rejected traditional legal science. His main objection to traditional legal science was that it employed metaphysical concepts; inter alia, “right”, “duty”, “wrong –doing” and “guilt”.
The focal point of his theoretical work was his sustained attacks towards what he termed the method of justice. The method of justice is the turn of phrase used by Lundstedt to denote traditional legal science, (derived from the traditional method of natural law), which holds that human beings are persons endowed with legal rights and duties. He was of the view that the term “right” and other metaphysical concepts employed by traditional legal science, were all illusory concepts ; that they were naught else but an intellectual play with expressions of feeling – as if something real were designated thereby.
Such concepts could not be used because they did not refer to any natural facts – therefore the terms were devoid of any conceptual meaning. To cement the sphere of legal knowledge as a bonafide, real science – legal science must be an empirical science, which deals with social facts: “As a science jurisprudence [legal science] must be founded on experience, observation of facts and actual connections, and consequently be a natural science. ” He perceived that terms such as “legal order” and legal rules” are not concepts but merely empty words that ought to be replaced with the term “legal machinery”.
Legal machinery in this vain, is used to denote the psychological factors that determine human behaviour in relation to the use of legal vocabulary. He postulated that legal concepts such as “right” and “duty” are also bereft of any conceptual meaning and should be abandoned. Therefore, the legal vocabulary of traditional legal science is to be understood as a matter of using words and noises to cause the appropriate behaviour; these words and noises are not concepts which could be said to be the reasons for human conduct.
However Lundstedt conceded in his writings that, there are some realities that correspond to the concept of “rights”- namely, a position of advantage and safety, which is a result of the regular enforcement of certain legal rules and the psychological effects this had on the minds of people. In short, because the courts come to one’s aid when a person alleges an infringement of a “right”, a layman is left with the psychological impression that his/her right is real because the courts have sought to address the “wrong” they were done.
As discussed earlier, the term “right” does not designate anything observable, tangible nor anything capable of sensory perception. One cannot show you their right- and thus Lundstedt argued that a “right” is a fictitious entity. It must be borne in mind that Lundstedt’s line of reasoning is not what is understood by the term “rights” when referenced in legal science nor in the public mind, and therefore he argued that it would be better still, to do away with the concept altogether.
This stringent scientific attitude of Lundstedt’s , was committed to replacing the magical/metaphysical terms associated with traditional legal science scholarship, with scientific concepts having a basis in reality. In Lundstedt’s view, the scientific concepts were essentially empirical laws, stating the causal relations between the legal words and their effects upon human behaviour. The Method of Social Welfare Lundstedt was of the view that there was no objective means to define the requirements of justice, and that invocations of justice cloaked purely subjective preferences – i. e. he divergences of opinion concerning whether the death penalty is just. Alternatively he argued that such invocations of justice were representations of unacceptable metaphysical claims – i. e. in ancient Rome it was believed that the Emperor was the chosen emissary of God. For this reason, Lundstedt endeavoured to replace the method of justice with the method of social welfare, in solving legal problems. The method of social welfare is premised on social aims- that the aim of all legal activities such as judicial decision making, and the promulgation of legislation should be geared toward benefiting mankind.
He emphasised that his notion of social welfare was not a moral or philosophical principle, but that the term should be understood in a descriptive sense; representing the actual valuations of people in society. He ardently denied that his method of social welfare was in anyway way related to the ethical theories of Jeremy Bentham or John Stuart Mill, as his theory was criticised as just another version of utilitarianism. For example, Lundstedt stated the purpose of punishment is not for revenge, but to maintain a system that is for the benefit of all i. . a system in which a thief is held liable for his damages. Were the purpose of the law to be “justice”, he opined that it could be argued that theft should be condoned if the thief is considerably worse off than the person(s) from whom he stole. (An illustration of why he rejected the concept of justice) Lundstedt argued that the method of social welfare is a scientific approach, as it is premised upon the reality of human needs and wants; and that the aforenamed are facts to be known by science.
Lundstedt believed that his method should inform and shape legislation; as it was centred on the objective study of social conditions, and on the practical effects and capabilities of the law in improving society for all its members. In furthering his views that the law should be used as a vehicle for social reform, Lundstedt used this method as a line of argument against a proposed prohibition law in the 1920s. He was of the view that such a ban would harm the public respect for the law.
In the 1930s he once again used his method to advocate for the decriminalization of homosexuality, which was quite a radical stance to take, taking into account the times in which he lived. Lundstedt’s arguments have been criticised as being not altogether convincing, as he failed to prove that people generally and truly supported the values he advocated. Moreover, he did not provide a measure for those situations in which the valuations of people differed greatly. ——————————————– [ 1 ].
J Bjarup, The Philosophy of Scandinavian Legal Realism (2005) [ 2 ]. J-O Sundell, Vilhelm Lundstedt- A Biographical Sketch , (2010) [ 3 ]. Supra [ 4 ]. J Strang, Two Generations of Scandinavian Legal Realists,(2009) [ 5 ]. T Spaak, Naturalism in Scandinavian and American Realism: Similarities and Differences, [ 6 ]. Supra [ 7 ]. J Bjarup, The Philosophy of Scandinavian Legal Realism (2005) [ 8 ]. M Freeman & P Mindus, The Legacy of John Austin’s Jurisprudence [ 9 ]. A. V. Lundstedt, Legal Thinking Revised, (1956) 10 ]. M Freeman & P Mindus, The Legacy of John Austin’s Jurisprudence, [ 11 ]. Supra [ 12 ]. M Freeman & P Mindus, The Legacy of John Austin’s Jurisprudence [ 13 ]. J Strang, Two Generations of Scandinavian Realists,(2009) [ 14 ]. Supra [ 15 ]. J Bjarup, The Philosophy of Scandinavian Legal Realism, (2005) [ 16 ]. Supra [ 17 ]. Some believe that it is the retribution of society that justifies the death penalty, whilst others aver that it is not for mortals to deprive the ‘killer’ of life.
Whichever side of the coin you fall, your perception as to what is just and moreover whether the death penalty is or is not an injustice depends heavily upon your feelings and values concerning human life. [ 18 ]. J Bjarup, The Philosophy of Scandinavian Legal Realism, (2005) [ 19 ]. Supra [ 20 ]. J Strang, Two Generations of Scandinavian Realists,(2009) [ 21 ]. Supra [ 22 ]. J-O Sundell, Vilhelm Lundstedt- A Biographical Sketch , (2010) [ 23 ]. J Bjarup, The Philosophy of Scandinavian Legal Realism, (2005)
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