Austin and Scandinavian Realism

The imperative theory of law exemplified in the work of John Austin is the object of much criticism in the movement of Scandinavian legal realism (SLR). The very core notions of command, sovereignty and will are targeted. This paper explores the Scandinavian readings of Austin’s theory, chiefly by reconstructing the main arguments of Axel Hägerström’s criticism of the will-theory and Karl Olivecrona’s reading of the imperative character of law. Special attention is paid to the affinities between the various outlooks and to their core differences. On one hand, strong resemblances can be discovered in the common methodological afflatus and respect for Hume’s principle. On the other hand – apart from contrasting opinions on minor aspects (such as tacit consent grounding custom) – among the unbridgeable divergences mention should be made of the view on morals: Austin embraced a form of cognitivism, while the Scandinavians supported a strict form of non-cognitivism. In order to assess the originality of the Scandinavian attack on the imperative theory of law, the aim of the paper is to test to what extent it stimulated the seminal work on the question of law’s authoritative dimension in SLR.