Hägerström, Axel (1868–1939)

Axel Hägerström was a Swedish philosopher and founder of the Uppsala School, the cradle of Scandinavian legal realism. Hägerström's wide scholarly output spanned philosophy, religion, psychology, sociology, political science, morality, and legal theory. Framing all of these areas of research was his socalled reality thesis. In brief, there was a dualism between subject and object whereby, in the cognitive act, the subject encountered an object and, hence, a reality other than the self, rather than a modification of the subject's conscience.

He formulated this thesis in opposition to the epistemological subjectivism informing the idealistic philosophy that held sway in Sweden through the late nineteenth century, with Christopher Boström (1797–1866) as its most influential exponent. Hägerström had espoused Boström's conception in his youth, but he then parted with it by following the lead of the so-called critical Boströmism of Karl Sahlin (1824–1917) and Erik Burman (1845–1929) in his 1902 Kants Ethik and 1908 Das Prinzip der Wissenschaft (The Principle of Science).

With the reality thesis, Hägerström proceeded to launch in science, philosophy, morality, and law an attack against metaphysics, which he understood subjectivism supported. In his assumption that metaphysics was nothing more than a group of words connected by emotion, he expressed his intent to counter it not only in the form it took in philosophical systems, but also in scientific thought.

As applied to law, the reality thesis led to a linguistic therapy designed to uncover the empirical facts corresponding to each of the basic concepts of legal language. In Hägerström's ontological view, rights and duties proved to be unreal, on a par with values and self-contradictory concepts, because there was no objective entity corresponding to them in the spatiotemporal world. Only what was real could become an object of knowledge. Therefore, Hägerström concluded, there could not be a science of rights and duties; he criticized legal positivism for presenting itself as a science of law.

Hägerström's critique affected legal theory mainly through his pupils, Vilhelm Lundstedt (1882–1955), Karl Olivecrona (1897–1980), and Alf Ross (1899–1979), all of whom were jurists. Although Hägerström was more of a philosopher than a jurist, he did outline some ideas for a scientific study of law requiring sociopsychological inquiry, with the aim of singling out the psychical and linguistic phenomena that stood behind ideas of law and duty. He also wanted to explain how these ideas influenced behavior and what functions they served in society. There should be historical inquiries into the origins of ideas of rights and duties.

In the 1920s and 1930s, Hägerström turned to the early Roman world, finding that rights and duties there were identified with supernatural powers and connections. They were an object of primitive, animistic beliefs about forces and relations that, however magical and invisible, “existed” and were susceptible to human control by way of appropriate acts of verbal, imitative, and symbolic magic (such as possessio, mancipato, sponsio, and promissio). Even when these beliefs in a magical world faded away, the accompanying conceptions of rights and duties as nonphysical forces and connections pertaining to a dimension other than that of nature held up, either by habit or because they had been integrated into indispensable techniques of social life.

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