Personally I have developed w hat I have called a relationistic or pluralistic the
ory of law .05) Law is not ju st a system of norm s, a prediction of the behaviour of
the authorities, com m ands to the authorities or the citizens, a legal concept, ideology, behaviour, sanctioned norm s of conduct or custom . Law is all this and other things - at the sam e time. T he different definitions select a single relation which is then hypostatized as »law«. But the different definitions are only models and analogies by w hich the special interest in cognition is expressed and by this often a further political interest.
It is w ithout any d o ubt no coincidence th at law in the socialist countries is de
fined in accordance w ith H ans K elsen’s view as com m ands of the state backed by threats and th at legal science is only recognized as the theory of Law and State.
O n the other hand, it is equally obvious th a t sociological definitions like those of A m erican realism and the G erm an Niklas L u h m a n ’s system theory, accord
ing to which law is a rolling system of procedures by which social life is adapted to developing social needs, reflect the ideas of a m arket economy.
But also in the other cases definitions of law reflect the n atu re of the questions asked and to whom they are addressed. In au th o rita ria n state definitions the state is, as m entioned, the legal actor, in Anglo-Saxon tradition the judges are usually regarded as the honoratiores whose actions are often identified w ith the law, whereas in G erm any the legal professors have been regarded the authentic interpreters of law regarded as general concepts. It is quite clear th a t w hat advo
cates are interested in is the probable outcom e of concrete cases, »the bad m a n ’s law«, b u t it is equally clear th at from the ju d g e ’s perspective definitions of th at kind are not satisfactory, neither are definitions concerning his feelings of being obliged. T o him law m ust be obligatory norm s derived from recognized sources.
T he dogm atic legal theorist is interested in seeing law as binding rules w hich he interprets and integrates in a system atic context. Legal dogm atics is usually the m ost im p o rtan t p a rt of legal science, because of its consultative function for legal practice. Therefore, extrem e form alistic or sociological definitions and philos
ophies of law have not been of lasting im portance.
O f course, H ans K elsen’s and H erb ert H a r t’s form al-analytical philosophy of law like legal logic has been of great im portance to the understanding of the struc
ture of law. But by excluding valuations and pragm atic considerations from their analysis, they cannot produce a theory of legal decision and interpretation. T he same is true of m ost so-called »realistic« theories, especially the Scandi
navian realism . Therefore it is essential th at legal philosophy deals w ith m oral, economic and political values not only to provide legal dogm atics w ith a rational theory of argum entation and decision b ut also to involve itself in a dialogue with the other social sciences: anthropology, psychology, sociology, economy and po
litical science, to contribute to the analysis of w hat is the »good society«. T he long history of legal philosophy has developed an u n derstanding of the im
port-anee of the function of w hat we call »justice« in com petition w ith utility arg u m ents, and how legal norm s and expectations are necessary to cope w ith the cen
tral social task: to m ake the optim al distribution of freedom and security.
T here also seems to be a daw ning understanding w ithin the social sciences th at law is not only a plum bing or am bulance service designed to repair defects and deal with emergencies in the functioning of society, b ut a condition preced
ent for its organisation and functioning.
Notes
1) See, for instance R. W. H. Dias, Jurisprudence (4th ed, 1976) p. 639 ff; Lord Lloyd of Hampstead, Introduction to Jurisprudence (4th ed, 1979) Ch. 8; Julius Stone, Legal System and Lawyers’ Reasonings (1964) p. 92-93; Wolfgang Fikentscher, Methoden des Rechts II (1975) p. 322 ff; Alfred Verdross, Abendländische Rechtsphilosophie (2.
Aufl. 1965) p. 196 ff. See further H.-H. Vogel, Der skandinavische Rechtsrealismus (1972); Stig Strömholm and H.-H. Vogel, Le »Realisme Scandinave« dans la Philoso
phie du Droit (1975); Enrico Pattaro, II Realismo Giuridico Scandinavo (1975); Jes Bjarup, Skandinavischer Realismus (1978); Silvana Castignone, II Realismo Giuridico Scandinavo e Americano (1981); Karl Olivecrona, The Legal Theories of Axel Häger
ström and Vilhelm Lundstedt, in: Scandinavian Studies in Law, 3 (1959) 125; Folke Schmidt, The Uppsala School of Legal Thinking, in: Scandinavian Studies in Law, 22 (1978) 149.
2) See my previous articles: Grundzüge der Entwicklung der skandinavischen Rechts
wissenschaft, in: Juristenzeitung (1970) 529; Skandinavische Rectswissenschaft 1850-1950, in: österreichische Zeitschrift fiir öffentliches Recht, 27 (1976) 241;
Legal Science during the Last Century, in: Rotondi, Inchiesti di Diritto Comparato, 6 (1976) 504; On Legal Theory in Denmark, in: Enrico Pattaro, Legal Philosophical Li
brary: and International Bibliography of Philosophy and Theory of Law, Denmark (1980) p. 25 ff; Über die allgemeine Rechtslehre in Dänemark, in: Archiv fiir Rechts
und Sozialphilosophie (ARSP) Beiheft Neue Folge, Nr. 13 (1979) 25; Entwicklung und Methode des Privatrechts, in: Stig Jørgensen, Vertrag und Recht (1968) p. 49 ff;
Die Bedeutung Jherings fiir die neuere skandinavische Rechtslehre, in: F. Wieacker und Chr. Wollschläger, Jherings Erbe (1970) p. 116 ff; Typologie und Realismus, in:
Nachrichten der Akademie der Wissenschaften in Göttingen, I Philologisch-Histo
rische Klasse (1971) Nr. 3, 17.
3) See to the following Stig Jørgensen, Traits Principaux de l’Evolution des Sources du Droit Danois, in: Revue Internationale de Droit Comparé (1971) 65.
4) Roman Law had at an earlier date been introduced in Sweden, which since the Thirty Years’ War had controlled large possessions on the Continent. Stig Jägerskiöld, Roman Influence on Swedish Case Law, in Scandinavian Studies in Law, 11 (1967) 175.
5) See also Stig Jørgensen, Grundzüge ... (supra n. 3) and Vertrag und Recht (supra n. 3) p. 76; Ditlev Tamm, Anders Sandøe Ørsted and the Influence from Civil Law upon
Danish Private Law at the Beginning of the 19 th Century, in: Scandinavian Studies in Law, 22 (1978) 243.
6) See Stig Jørgensen, Natural Law Today, in: Jørgensen, Values in Law: Ideas, Prin
ciples and Rules, (1978) p. 135 ff.
7) See Jørgen Dalberg-Lar sen, Retsvidenskaben som samfundsvidenskab (with a German summary) (1977) p. 230. A. S. Ørsted, Af mit Livs og min Tids Historie (abbreviated ed. 1951) p. 126.
8) See Stig Jørgensen, Idealism and Realism in Jurisprudence, in: Values in Law (supra n. 7) p. 33.
9) A. S. Ørsted, Over de første Grundregler for Straffelovgivningen, in: Eunomia, 2 (1817).
10) Juridisk Tidsskrift, 23 (1834) p. 332.
11) See Stig Jørgensen, Grundzüge ... (supra n. 3) p. 531; same, Vertrag und Recht (supra n. 3) p. 78 fT.
12) Stig Jørgensen, Grundzüge ... (supra n. 3) p. 531; same, Vertrag und Recht (supra n. 3) p. 81.
13) Stig Jørgensen, in Jherings Erbe (supra n. 3) p. 123; same, Grundzüge ... (supra n. 3) p. 531.
14) Stig Jørgensen, in Jherings Erbe (supra n. 20) p. 123 ff; same, Grundzüge ... (supra n.
3) p. 532.
15) Stig Jørgensen, Grundzüge ... (supra n. 3) p. 533, same, in Jherings Erbe (supra n. 3) p. 122.
16) The former method is represented by among others Ragnar Knoph, Kirsten Ander
son, and Carl Jacob Arnholm, and the latter by among others Per Augdal, Johs. An
denæs, and Sjur Brækhus. See Stig Jørgensen, Grundzüge ... (supra n. 3) p. 533.
17) StigJørgensen, Grundzüge ... (supra n. 3) p. 533; same, in Jherings Erbe (supra n. 3) p. 123.
18) See Aulis Aamio, On Finnish Legal Theory in the 20th Century, in: Legal Points of View (1978) p. 1 ff; and Hannu Tapani Klami, Legal Philosophy in Finland (1982).
19) See Karl Larenz, Methodenlehre der Rechtswissenschaft (4. Aufl. 1979) p. 64; Dieter v. Stephanitz, Exakte Wissenschalt und Recht (1970) p. 214.
20) On this subject see Thomas Kuhn, The Structure of Scientific Revolutions (1967).
21) William James, Principles of Psychology (1981); same, The Varieties of Religious Ex
perience (1902); same, Pragmatism (1907).
22) Edmund Husserl, Logische Untersuchungen (1901).
23) Karl Larenz, (supra n. 20) p. 64 ff and p. 406 ff; A. Kaufmann and W. Hassemer, Einfüh
rung in Rechtsphilosophie und Rechtstheorie der Gegenwart (3. Aufl. 1981) p. 52 ff.
and p. 94 ff.; Heinrich Henkel, Einführung in die Rechtsphilosophie (2. Aufl. 1977) p.
371 ff.; Reinhold Zippelius, Rechtsphilosophie (1982) p. 49 ff.
24) John Dewey, Studies in Logical Theory (1903); William James, Pragmatism (1907).
25) G. E. Moore, Refutation of Idealism (1903).
26) Axel Hägerström, Das Prinzip der Wissenschaft. Eine logischerkenntnistheoretische Untersuchung, in: Die Realität (1908).
27) Vilhelm Lundstedt, Die Unwissenschaftlichkeit der Rechtswissenschaft I-JI (1932- 1933), in: Legal Thinking Revised (1956).
28) See on the contemporary Danish jurist Fr. Vinding Kruse, StigJørgensen, in Jherings Erbe (supra n. 3) p. 124; same, Grundzüge ... (supra n. 3) p. 532.
29) Karl Olivecrona, Law as Fact (2nd ed. 1971).
30) Viggo Bentzon, who in note 1 of his book, Skøn og Regel (1914) refers to Henri Berg
son’s inspiration, was philosophically influenced by the book by the Danish philos
opher HaraldHøffding, Filosofiens Historie I-II (2. ed. 1903-1904), which took psy
chology as its starting point. In his publications Bentzon attaches importance to psychological features in man’s identification of himself with the rules and their ap
plication, and to custom: »the criteria of the sources of law develop from legal usage«, he writes in his book Retskilderne (1905) p. 136 and p. 74, and in: Svensk Juristtid- ning (1929) p. 533 ff. He distinguishes between rules, for instance rules of law, which the courts must apply, and other rules - including custom and usage - which the courts may apply (Retskilderne, p. 76 and p. 82).
31) See A lf Ross, Some Reflections on the Method of Legal Science and on Legal Reason
ing, in: Scandinavian Studies in Law, 12 (1968) 49.
32) The English version of A lf Ross’ book On Law and Justice (1958) mentions in its pref
ace only Kelsen and Hägerström. Ross mentions that from Kelsen he has learned logical conclusion, from Hägerström about the emptiness of moral methaphysics and from Bentzon a realistic juridical method.
33) English version: Towards a Realistic Jurisprudence (1946).
34) See to the following Ch. 1-2 of On Law and Justice. In the Danish version of the book (p. 41, note 1) Ross admits that in his Virkelighed og Gyldighed (Towards a realistic Jurisprudence) he one-sidedly defined law as a real phenomenon. He refers to the re
view (in Tidsskrift for Rettsvitenskap (1952) 38 (58)) by the Norwegian philosopher Harald Ofstad as his source of inspiration to the conception that law is idea as well as phenomenon.
35) A lf Ross, On Law and Justice (supra n. 33) p. 34 if., p. 68.
36) A l f Ross, On Law and Justice (supra n. 33) p. 70 ff. (p. 71, note 1); although Ross himself repudiated this name (l.c. p. 72). In his later book: Directives and Norms (1968) Ross develops his theory still further, and recognizes that »obligation« has a purely logical side as well.
37) A lf Ross, On Law and Justice (supra n. 33) p. 38 ff.
38) A lf Ross, On Law and Justice (supra n. 33) p. 32 ff.
39) A lf Ross, On Law and Justice (supra n. 33) p. 40 ff.
40) See Stig Jørgensen, Values in Law, (supra n. 7) p. 151 ff. and p. 9fT., in: ARSP (supra n.
3) p. 30; same, Die rechtliche Entscheidung und ihre Begründung, in: Rhetorische Rechtstheorie (1982) p. 337.
41) Tidsskrift for Rettsvitenskap (1943) p. 174 ff.
42) Torstein Eckhoff and Knut Sveri, En lov i søkelyset (1952); Vilh. Aubert, Rettssosiologi (1968); Torstein Eckhoff, Justice (1974); Theodor Geiger worked in Denmark in the 1940s and wrote here among other things Vorstudien zu einer Soziologie des Rechts (1947).
43) A. Peczenik, Juridikens metodproblem (1974).
44) Aulis Aamio, On Legal Reasoning (1977); same, Denkweisen der Rechtswissenschaft (1979); see also Kaarle Makkonen, Zur Problematik der juridischen Entscheidung
(1965); see also Otto Brusiin, Über die Objektivität der Rechtsprechung (1949); see also Preben Stuer Lauridsen, Retspolitisk argumentation (1974); same, Retslæren (1977).
5) Stig Jørgensen, Law and Society (Recht und Gesellschaft (1971)); same, Values in Law (supra n. 7) same, Norm und Wirklichkeit, in: Rechtstheorie (1971) p. 1 ff.;
same, Hermeneutik und Auslegung, in: Rechtstheorie (1978) p. 63 ff.; Hannu Tapani Klami, Confessiones Methodologicae (1981); Stig Strömholm, Allgemeine Rechtslehre (1976).
5) See Stig Jørgensen, (supra n. 46); same, Pluralis Juris: Towards a Relativistic Theory of Law. Actajutlandica LVI (Aarhus, 1982); see also Tor stein Eckhoff, (supra n. 43).
7) Frede Castberg, Forelesninger over Rettsfilosofi (1965), in which the author points out that human rights and justice must be respected by a valid legal system (p. 25 if.); a new cultural legal idealism has been formulated by Jacob Sundberg, Från Eddan till Ekelöf (1978).
B) Nils Jareborg, Värderingar (1975).
5) Torstein Eckhoff, (supra n. 43).
D) C. H. von Wright, Handlung, Norm and Intention (\§ll)\StigK anger, Law and Logic, in: Theoria (1972) p. 105 ff.; Stig Jørgensen, Pluralis Juris (supra n. 47).
1) Torstein Eckhoff and Nils Kr. Sundby, Rettssystemer (1976).
2) PerEklund, Rätten i klasskampen (1974); Lars D. Eriksson, Marxistisk teori och rätts- vetenskap (1980).
3) Stig Strömholm, (supra n. 46); A. Peczenik, (supra n. 44); Preben Stuer Lauridsen, (supra n. 45); Stig Jørgensen, (supra n. 46).
4-) Jacob Sundberg, (supra n. 48).
3) Stig Jørgensen, Pluralis Juris (supra n. 47); same, Law and Society (supra n. 46) Ch. 1.
Pluralis Juris
T he title »Pluralis Ju ris« m ay seem a bit confusing, b u t it is at the sam e tim e the title of a little booklet, which I published recently. T he direct translation of the title would undoubtedly be plurality of law. You m ay then ask why I have chosen to use a L atin form and not plain English. You m ust believe me w hen I say th a t it is not exclusively reflecting academ ic snobbery, b ut at least two other regards.
T he title is m eant to be a little striking, so th a t it makes people notice and re
m em ber and sometim es even think about the m eaning of the title. T his purpose you will easier achieve when the title is additionally a little am biguous. As I m en
tioned before the plain m eaning of the title be som ething like the plurality of law.
T here m ight be another nuance or an alternative interpretation which concurs with my idea of connection between law and politics. Pluralis ju ris can m ean also: m ajority for the law or p u t in another way th at law in our p a rt of the world is a reflection of a dem ocratic political system, and on the other h and th at law is the device for governing a pluralistic society.
T o begin at the beginning it is a substantial idea of my book th a t law like any other phenom enon in reality cannot be defined in one and only one way. Any definition which is a m ental construct isolating p articu lar elem ents of the phen
om enon and pu ttin g them together according to criteria in a preexisting m ental system is in the end governed by some general or special cognition interest. Defi
nitions are tools for the m ental activity called science, the purpose of w hich is to increase the knowledge of m an. Definitions or concepts are abstractions of some p a rt of reality, abstractions which m ake it possible for m an to com m unicate in a symbolic way, inform ation from one individual to another. Concepts m ay be vague and open-ended, the so-called type-concepts, which are commonly used in everyday language and in the social sciences. In m athem atics and n atu ral sciences delim inating concepts or definitions are usually contrary to type-con
cepts which are characterized by the intensity of elem ents. T he delim inating con
cepts or definitions are characterized by exact num bers and relations between the elem ents. O f course the use of delim inating concepts makes it possible to
derive exact conclusions and to predict process consequences according to the general logical and scientific system according to which they are defined. But of course such certainties are achieved at the expense of plasticity. I f you have de
fined m an according to an anatom ical system you cannot at the sam e tim e under
stand m an as a biological or physiological phenom enon and not at all as a social or cultural creature. But even if you have chosen to talk about phenom ena ac
cording to one system of criteria it m ay be difficult to operate w ith delim inating concepts due to the general vagueness of the language. Especially sciences, which are dealing with daily life, the so-called social sciences in general and legal science in particular, you have to deal with concepts which are already existing in general language and in the legal system. Therefore the interpretation of law in legal science is dealing with concepts which have an ordinary or general linguistic m eaning w hich is not delim inated, for instance wood, house, public street, neg
ligence, fraud and so on. W e m ust never forget th at legal rules are not theoretical expressions, assertions or allegations neither are they expressions of a rt which m ay be interpreted individually. But legal rules are m eant to affect reality by in
fluencing the m inds of the population conveying a m eaning which is not u n d er
stood if it does not refer to the concepts which are already in operation in the m inds of the addressees. It is generally assum ed th at the am biguity of the con
cepts in the language is the necessary preconditions for the economy of speach. If concepts could not be used in a variety of different m eanings the languages had to contain m any times as m any words and concepts as they already do. V ague
ness is so to speak a necessary aspect of language so th at context, interest and purpose decide which interpretation of the concepts is valid in the given speach act.
It is com m on knowledge for everybody today th at science is not and cannot be entirely objective. Science m ust be dependent on a m eta-science or philosophy of science w hich lies behind science as a guiding principle. W h at is known as m eta-science does not constitute a subject of its own b u t is the science of science.
Like philosophy it deals w ith the basis of science, b ut it does not, however, treat the question of cognition as such as an essential problem b u t rath e r focuses on the m ethods applied by science. T he ideal of the so-called logical-em piristic or positivistic m eta-science of the V ienna circle, which dom inated from the 1920s to the 1950s, was th a t science be value-free. But as we have already m entioned this is an ideal which has not the sam e credibility after the progress of linguistic analyses of the last decades. W e have always known th at there has been so to speak built in a m oral dem and to science in the dem and for truth. B ut tru th is not only a m oral dem and b u t also a condition of scientific com m unication and col
laboration. T he above-m entioned positivism of the V ienna circle had the superior
purpose of keeping science free from political, ideological and religious usurpation in the growing totalitarian tendencies in Europe. In the centre of the theory was the linguistic expression. O nly statem ents, i.e. assertions, which can be em piri
cally verified or which are analytically, i.e. logically, self-evident can be accepted as scientific statem ents. M etaphysical assertions, which cannot be verified, and statem ents containing evaluations are of no scientific relevance. These de
m ands on science have been applied w ith great success in m athem atics and the natu ral sciences since the days of Descartes and Galileo. T he new practice is to make the sam e dem ands for objectivity on other sciences: the social sciences and the hum anities.
In opposition to positivism various m ovem ents am ong the cultural sciences have fram ed a herm eneutic-dialectical or critical-scientific ideal. T he point of departure in recent times has to be looked for in the French and G erm an phenom enology of the 1930s and the 1940s. T o the functional descriptions of its objects adhered to by positivism H eidigger raised the objection th at any h um an activity is based on a conscious or unconscious intentionality. H um an conduct is purpos
ive. I f therefore science confines itself to a description of hum an activity, th at de
scription will at m ost be a very im perfect one. It will be able only to answ er the question »how« and not the question »why«. Science cannot deal scientifically w ith the interpretation of the m eaning of the activity. M oreover linguistic theory acknowledges th at language is in itself filled with a hidden m eaning and interpretation of reality. It is impossible to apply a linguistic expression w ithout at the sam e tim e speaking intentionally. You cannot for instance m ention the word »table« in a sentence w ithout having also said som ething about the use of this piece of furniture. W hen analysing other words, concepts and sentences one m ust end up w ith a theoretical assum ption th a t it is impossible to pronounce on anything w hatever w ithout having a preconceived opinion of it. T his is the so- called herm eneutic circle. A nother branch of phenom enology, the so-called structuralism or semiology, seems to regard reality as a reflection of linguistic structures. A m ore relevant observation is perhaps the underlining by the ideol- ogy-critical F rankfurt School of the fact th at the basis of cognition is interest.
T he problem th at has to be solved is th a t of finding out w hat factors determ ine our choice of value-concepts in the form ation of theories as well as ideologies. It seems n atu ral to stress on anthropology or hum an biology, the fact th a t m an is created in such a way th at he is able to feel certain needs and consequently to have certain interests.
As a m atter of fact Im m anuel K a n t’s theory of cognition underlined in p rin ciple the limits, which are set to cognition by the hum an ap p a ra tu s of cognition.
T o this m ust be added th at biological assum ption of the influence of our needs on the direction of our interests and so on our interest in the direction of cogni
tion. It has already been m entioned th at cognition is an activity, which has an intellectual and therefore a linguistic character. O u r cognition is so to speak limited by our linguistic capacity. W hat cannot be form ulated in language cannot easily be m ade the object of cognition. T he analytical philosophy of language has been occupied especially w ith analysing everyday language on the assum p
tion th at it contains the culture or heritage of m ankind, which is held to have settled into the language through the process of culture and consequently of cognition. T his is exactly w hat the so-called herm eneutic science claims: th at there is so to speak no possibility of cognition and science w ithout regard to the cultural system and tradition lying behind the actual culture and the purposes and goals of m an according to his cultural background.
I have tried to illustrate the general situation of science directly by our abil
ities and interests w ith the parable of the elephant. In doing this I was inspired by an article by the A m erican legal philosopher Felix Cohen, who in his article
»Field T heory and Ju d ic ia l Logic« in the Yale Law Jo u rn a l, No. 59,1950, p. 238, took his starting point in E instein’s relativity theory and transferred to legal phil
osophy the insight of this theory th a t cognition depends on perspective and in
strum ent: »R ather does the field concept, which recognizes the lim ited and rela
tive validity of m any apparently conflicting views in the practical struggles of the law court and m arket place, point to the possibility th at m any conflicting schools ofjurisprudence m ay all be true and valid differing and lim ited perspectives and regions.«
But after having published my booklet my learned colleague professor M a n fred R ehbinder from Zürich has corrected me referring to his edition of K arl Llewellyn’s lectures on legal theory in D resden in 1931 »R echtsleben und Gesell
schaft« from 1977, p. 42, from which Felix Cohen m ight have borrow ed his el
ephant parable, which runs as follow: Seven blind sages were given the task of defining an elephant. O ne found th at the elephant was a wall, another th at it was a pillar, the third called it a snake, the fourth a spear, while n um ber five and six felt certain th at it was a whip and a big leaf respectively. T he seventh was convinced of its being a thunderstorm .
T he parable point to the fact th at our cognition is fragm entary delim ited by our ability to grasp reality by the instrum ent we are using in the cognitive progress and by the interests, w hich are lying behind the questions we put. It is obvious th a t we do not get an answ er to questions th at we have not yet put, and we get the answers th a t our instrum ents are capable of providing. T h a t does not