T o u nderstand the above-m entioned relationship between »Scandinavian« and
»Nordic« realism it is necessary to m ake a short historical outline. From ancient times there has existed a close political, legal and cultural co-operation between on the one hand D enm ark and N orway, which were united from 1397 to 1814, and on the other hand between Sweden and Finland, which were united until 1809.
A com m on basis of the developm ent w ithin law 3) in all the N ordic countries, Iceland included, is found in the so-called »landskabslove« (provincial laws) from the 12th and the 13th centuries containing records of an older custom ary law w ith substantial comm on features. Late codifications (D anske Lov 1683, Norske Lov 1687, Svenske Lov 1734) are to a considerable extent conservative com pilations of the rules of the provincial laws supplem ented by the successive laws of posterity. Real, com prehensive codifications in a m odern E uropean sense were never introduced in the N ordic countries. O n the other hand particu lar law reforms were introduced in each individual field from the end of the 19th century partially on a comm on N ordic basis. From 1872 N ordic »jurists’ m eet
ings« were held at regular intervals. Since 1953 »Nordisk Råd« (The N ordic Council) has been a consultative body for N ordic p arliam entarians, and at
regu-lar intervals the N ordic m inisters of justice m eet to discuss comm on problem s concerning legislation.
T he lack of codification, on the other hand, was in favour of a further develop
m ent of the an tiq u ated and incom plete law m aterial through theory and legal usage. Even though Sam uel Pufendorf lived and acted in Sweden for twenty years from 1668, the rationalist n atu ral law did not gain a footing in legal usage - and later in legal theory - until the 18th century.4) However, a real, independent legal philosophy and legal science did not exist until the 19th century.
Nordic Realism. A. S. Ørsted
T he D anish lawyer and politician A. S. Ørsted (1778-1860) is generally considered to be the father of D anish-N orw egian legal s c i e n c e .H e was influenced - like von Savigny - by K a n t’s critical philosophy, and he therefore rejected the ratio n alist n atural law theory and favoured a positive and realistic jurisprudence.
W hile von Savigny pointed out the spirit of the people and history as the source of law, Ø rsted - like Montesquieu - referred to »the natu re of things« (»nature des choses«, »N atur der Sache«) as the subsidiary, supplem enting source of law.
T he concrete social conditions and comm on sense are the basis necessary for the right supplem enting of the law and for the right legal policy. W hile Jeremy Bent- ham pointed out public utility as the purpose of the law, Ø rsted referred to the
»public benefit«.6)
As already m entioned, M ontesquieu assum ed th at there existed »rapports ne- cessaires« between »les choses« and »des lois«, i.e. necessary connections am ong the n atural phenom ena and between these and the social laws. K an t, however, divided the world into »the realm of necessity«, the world of nature, which pre
supposes the law of causation, and »the realm of freedom«, the spiritual world, which presupposes the law of responsibility. In this way K a n t m anaged to com
bine em piricism with rationalism : on the one hand he had to agree with H um e th at the law of causation cannot be proved em pirically, b u t on the other hand he found th at our ap p a ra tu s of cognition cannot function w ithout such ideas as time, space and causation. W hat is beyond cognition, »das Ding an sich«, can be reached only by m eans of intuition.
In contrast to M ontesquieu, K a n t - as m entioned - did not find th a t there existed a necessary connection between cognition and valuation. O n the contrary the concept of responsibility had to imply the freedom of the will, which makes it impossible to infer an »is« from an »ought«.
T hus, K a n t on the one hand separated »thought« (idea) and »reality«, and on the other lim ited cognition to the p a rt of reality which corresponded with the idea, w hereas Hegel w ent all out identifying reason with reality, w hich was con
sidered to be constituted of and by the idea, w hich is also concretized in actual m orality and law.
It is clear th at Ø rsted, like M ontesquieu and B entham , built upon an em piri
cal theory of cognition and a realistic theory of law although he never gave up his religious belief. N either M ontesquieu nor B en th am 7) could take into consider
ation K a n t’s fundam ental criticism of cognition, which m aintained th at it is not possible to deduce m oral and legal laws from n atural laws. Therefore, in his socio
logical theory M ontesquieu could assum e th at there are certain »rapports ne- cessaires« deciding divines, social and n atu ral laws; and from his psychological theory th a t h um an beings are in fact in search of happiness B entham could con
clude th a t happiness therefore ought to be the aim.
How ever, Ø rsted not only knew K a n t’s philosophy, but he even began his scientific work by defending K a n t’s m oral and legal philosophy. L ater on he re
jected it, because it - in his opinion - rem ained too abstract. H e then for some time subscribed to F ichte’s theory, b u t repudiated it, as it developed in a speculative and system atizing direction, like the theories of Schelling and Hegel. Especially because he had to continue his practical career as a lawyer, a ju d g e and a politi
cian, he gave up philosophy and concentrated on his activities concerning legal dogm atism and legal politics. H e found a sam ple of the »public benefit« in the interplay between theory and practice8) and initiated the publication of law reports at regular intervals. I f the study of and consideration for the social conditions (in D enm ark-N orw ay) and the »public benefit« m ust be the foundation of the law, it is - in his opinion - not only for m oral reasons b u t also because a conditionof law being obeyed in the long run is th a t the population acceptsit as being rig h t.9) As we shall see, this socio-psychological basis of the law is characteristic of the later
»N ordic« and »Scandinavian« realism .
Ø rste d ’s legal theory was adopted by the Norw egian professor A. M . Schwei- gaard, who in a well-known publication rejected the G erm an legal philosophy from W olff to von Savigny as vague, m etaphysical and abstract. H e em phasized Ø rste d ’s analytical-descriptive m e th o d ,10) which becam e the norm of one of the m ovem ents in the later N orw egian legal theory and legal science.
Ø rsted had no direct influence on D anish legal philosophy, w hich was repre
sented by C. Bomemann.U)B ornem ann fully adopted H egel’s and P u ch ta’s system
atic-constructive school, which found the basis of the law in the developm ent and m anifestation of the spirit of the people in society, and attached only second
ary im portance to consideration of expediency. O n the other h and Ø rste d ’s ac
tivity had an extrem ely great influence on D anish legal practice and on certain parts of the dogm atic legal science.
Carl Goosn) tried to com bine Ø rste d ’s practical realism w ith B ornem ann’s
idealism . In his theory of unlawful actions, which contained elem ents of K a n t’s categorical im perative as well as of S tu art M ill’s utilitarianism , Goos endeav
oured to establish general rules of the limits of the liberty of action. These rules were laid down on the basis of a balancing of regard for the citizens’ liberty of action on the one hand and of regard for the interests of society on the other.
From the same considerations he defined the concept of subjective right as a
»m orally protected good«. T hus he arrived at a conception akin to R udolph von Jh e rin g ’s contem porary realistic definition of the right as a »legally protected
interest«.
However, his dualistic legal philosophy was m anifested in the distinction be
tween the purpose of the law and the grounds of the law. T he practical purpose of the crim inal law is to prevent crimes, w hereas its ethical grounds m ust be sought for in the punishm ent of the sane will. T h e grounds of the private law is - on the one hand - to be found in the »principle of person« and the »principle of will«, but - on the other hand - w ithin the law of property this principle m ust compete w ith the »principle of society«. These grounds attaching decisive im portance to the »interests of commerce« and to the »principle of reliance« result in the estab
lishm ent of a »principle of expectation«, which competes w ith the »principle of will«. From the end of the last century this »principle of expectation and reli
ance« leads to the developm ent of an objective law of contract and obligation in the uniform Scandinavian legislation.
J h e rin g ’s legal philosophy had a rath e r great direct influence on the two N or
wegian jurists. Francis HagempXVl was influenced especially by the young J h e rin g ’s »constructive« and »natural scientific« m ethod, w hereas Frederik Stang14) to a higher extent was influenced by the elder J h e rin g ’s »cultural scientific« legal conception. H agerup - like the G erm an »lnteressenjurisprudenz« - insisted on a logical-system atic control of the practical balancing of interests derived from the purpose of the law. Stang (and the later G. Astrup H o e iyb) - like the »G erm an Freirechtsschule« and the »sociological theories« - endeavoured to develop a
»cultural scientific« or »sociological« theory, w hich derived legal decisions from a direct balancing of the interests involved. T his so-called »epic-lyrical« m ethod has w ithin m odern Norwegian legal science com peted with the above-m en
tioned em piric-analytical m eth o d .16)