Review

Author(s): Albert A. Ehrenzweig and Barna Horvath

Review by: Albert A. Ehrenzweig and Barna Horvath
Source: The American Journal of Comparative Law, Vol. 3, No. 1 (Winter, 1954), pp. 116-119
Published by: American Society of Comparative Law
Stable URL: http://www.jstor.org/stable/837139
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116 THE AMERICAN JOURNAL OF COMPARATIVE LAW

of their anthology. Therefore, texts not fitting into that structure, however
important they may be, were not inserted. Furthermore,however learned a
scholar may be -and it must be stated that both Cohens attained a very high
level in this respect-he is not expected to possess a fully exhaustive knowledge
of the whole literature in his field in all languages. Felix S. Cohen, adopting a
most praiseworthy attitude, says in his preface that he looks to the criticism
of colleagues and students for aid to remedy omissions.
The introductions to each chapter, as well as the numerous footnotes, are
excellent and will give students very valuable help. These introductions clarify
problems dealt with in the following excerpts, and point out the relations of
individual doctrines with others.
LUIS RECASENS-SICHES*

HAGERSTROM,A. Inquiries into the Nature of Law and Morals. Edited by Karl
Olivecrona,Professor of Jurisprudence,University of Lund, Sweden. Trans-
lated by C. D. Broad, Knightbridge Professorof Moral Philosophy, Trinity
College, Cambridge,England. (Vol. 40, Acta Societatis LitterarumHumani-
orum Regiae Upsalensis). Uppsala: Almquist & Wiksell, 1953. Pp. xxxii
377.
Those of us who read or teach jurisprudencehave enjoyed the English writ-
ings of Vilhelm Lundstedt,' Karl Olivecrona,2and Alf Ross,3 whom we have
come to recognize as the foremost Scandinavianrealists. At the same time as
their Continental and American brothers in arms, though with greater vigor
and consistency, they discarded the teachings of both "naturalists"and "posi-
tivists" and struck out to create a new science of the law as a social fact. But
they all are willing and indeed anxious to give full credit for much of their
achievement to their common great teacher, Axel Hagerstr6m.
Axel Hagerstromwas born in 1868 and died in 1939. He was one of those rare
philosophers who, before attempting to analyze and disprove the opinions of
others, feel obliged to acquire "some real knowledge" (xii) of the facts on which
they hope to build. This true scientific spirit resulted in his greatest achieve-
ment and in what some of us may consider his greatest defeat. During more
than two decades he compiled and completed in part a monumental work on
Roman and Greeklegal history which by all accounts is an inexhaustiblesource
* Visiting Professor of Jurisprudence, New York University; Visiting Professor, The
Graduate Faculty of Political and Social Science, New School for Social Research; Social
Affairs Officer, United Nations.
' See e.g., Lundstedt, Law and Justice (1952); Superstition or Rationality in Action for
Peace (1925); Law and Justice: "A Criticism of the Method of Justice," Interpretations of
Modern Legal Philosophies (1947) 450; "The Responsibility of Legal Science for the Fate
of Man and Nations," 10 N.Y.U.L.Q.Rev. (1933) 326. See also Die Unwissenschaftlichkeit
der Rechtswissenschaft (1932); and Le droit des gens, danger de mort pour les peuples (1937).
2 Olivecrona, Law as Fact (1939); "Law as Fact," Interpretations of Modern Legal Philos-

ophies (1947) 542. See also Lagens Imperativ (1942).

3 Ross, Towards a Realistic Jurisprudence (1946). See also Kritik der sogenannten prak-
tischen Erkenntnis. (1933); Theorie der Rechtsquellen (1927); Virkelighed og Gyldighed i
Retslaeren (1934).

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 BOOK REVIEWS 117

for scholars in this field4but prevented Hagerstrom from giving us more than
glimpses into what may well have become one of the major systems of legal
philosophy.
What Hagerstr6mwas lookingfor was the essence of all law. In this endeavor,
like so many before him and after him, he felt compelled to take issue with
the buildersof that tower of Babylonwhichwelike to call a science composedof
the "schoolsof jurisprudence."5Thepresentvolume takes us throughthe various
phases of a mercilessfight against the will and commandtheories, the "natural-
ists" (including Binding and Stammler), and the positivists among whom
Kelsen is given a whole chapter. Hagerstrom'sprimary importance to us does
not lie however, in these polemics of which we have had too many before
and after, both in Europe and in this country, but, I believe, in the fact that he
is perhaps the only "realist" who, having discarded misleading formulations,
attempted himself to build on the debris. For to him, even a law deprived of
naturalist glory and positivist purity was worth studying as a human fact,
ascertainableas clearly and as securely as any other reality.
This attitude shared by few, and acted on by fewer, of our contemporaries
may, indeed, be the beginning of a new era of jurisprudence.It leads us, I
believe, necessarily to investigations into that twilight zone of law and psy-
chology in which Axel Hagerstr6m has made more visible the role l magic.'
As a contemporaryof Freud, he shared with him some of his sources and much
of the hostile reaction to his teaching.8But not until we shall have found the
answer to the question why it is that belief in and fear of magic bears so heavily
on our legal institutions and philosophies,shall we be able to replace magic by
reason in the legal order. If Hagerstr6m could not give us this answer, he
taught us how to phrase the question-and this is a great deal.
ALBERT A. EHRENZWEIG*

The respective merits of editor and translator, in preparing this volume,

could hardly be exaggerated. Professor Broad himself tells us how he profited
from his familiarity with "Hegelianised English," which "closely resembles
4 Der r6mische Obligationsbegriff im Lichte der allgemeinen romischen Rechtsanschauung
(2 vol. 1927, 1941). The third volume of this work and an earlier major manuscript on Greek
law have never been published.
6 See my Book Review (Lask, Radbruch and Dabin), 64 Harv. L. Rev. (1950) 355.
6 Pp. xvii, 8, 358, 366 ("unconscious complexes"). For a more elaborate explanation of
this concept see Hagerstrom, "Vergleich zwischen den Kraftvorstellungen der primitiven und
modernen Kulturvolker," Festskrift for Grotenfelt (1933). Lundstedt, Law and Justice
(1952) 45 describes law and justice as a "certain psychological disposition in man, an instinct
in him to build up a society and to maintain it." If I may trust my less than perfect famili-
arity with his language, Professor Ekelof of the University of Uppsala, too, shares my psycho-
logical bias. See his Straffet, Skadestandet och Vitet (1942) 23, 85, 92 et seq.
I Particularly Frazer's Golden Bough. See also e.g., Ross, Towards a more Realistic Juris-
prudence (1946) 225.
8 Beseler, one of the greatest German Romanists, refused to enter into a discussion with

"the mystic" Hagerstrom. 49 Sav. Z. Rom. Abt. (1929) 404.

* Board of editors.

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118 THE AMERICAN JOURNAL OF COMPARATIVE LAW

Hagerstrom's Swedish at its worst" (viii), while Professor Olivecrona assures

the reader that the translation "actually reads more easily than the original
text" (x). Hardly less difficult than the task of translationmust have been that
of selecting the most representative parts of Hagerstrom's writings. He was,
first and foremost, philosopher;his interest centered in epistemology and the
concept of reality. He started from Kant, but rejected subjectivism and es-
tablished, instead, an objective theory of knowledge. Perhaps it is regrettable
that Hagerstr6m'scharacterizationof his own philosophy (1929) has not been
included in this volume. A complete bibliographyof his works would have been
also welcome. A thorough understanding and criticism of a highly involved
legal theory, the vital philosophicalpresuppositionsof which are unaccessible
to him, is more than a readermay hope to glean from this volume.
However, the difficultyis much alleviated by Olivecrona'smasterly introduc-
tion. Here he tells us that Hagerstrom,in his inaugural lecture (1911) on the
truth of moral ideas, had already concluded that there can be no science of
duties, no science of the "ought." Consequently, he reduced legal philosophy
to sociology of law. His main work was concerned with criticism, discovering
contradictionsand confusions;but he paved the way for a thoroughly realistic
conception of law.
His criticism is directed, characteristically,at legal positivismno less than at
the doctrine of naturallaw. He shows that within the frameworkof the impera-
tive theory there is a constant confusion between the "is" and "ought," con-
stant infiltrationof ideas belonging to natural law. He baffles the readerby the
admission: "the confusion . .. is, in a certain sense, of essential importancefor
the scientific value of the theory" (254). Thus, Hagerstr6m not only criticized
but also tried to understand traditional theory, to explain the unavoidable
"confusion."This, perhaps, is his chief claim to novelty.
Though he sharply distinguishedwill, command, duty, and right, he showed
also the "easy transition" among them. In this, he seems to follow Hume;
only, if he had drawn all the consequences,would he not have concluded that
reality itself is tainted with "supersitition"?As it stands, his doctrine may be
summed up (in simplified shorthand terms) as distinguishing will (intention)
as a command (imperative) directed to oneself; command as a will directed to
the action of another (suggestion);and duty as a kind of auto-suggestion.None
of these three terms has anything to do with valuation (which seems to be
limited to our wishes). Logical inference (which supposes judgment) is impos-
sible in the cases of will and command, but feasible in the case of duty and
right (although nothing real is meant but merely an abstract "certain some-
thing"). These are perhaps the most characteristicfeatures.
He held firmly that duty and right cannot be reduced to command. In line
with this is the seemingly bafflingadmission that, under the "will-theorycom-
bined with the doctrine of natural rights," "there is certainly not in principle
any confusionbetween the willing of the state and its objectively valid establish-
ment of rights and duties" (255). This basic dualism determines also the lines

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 BOOK REVIEWS 119

of his ingenious, appreciative criticism of Kelsen. The dualism is applied in a

masterly way to the problem of Declarationof intentionin the sphereof private
law (1935) in which lawyers will find his doctrine in a nutshell and in their own
language.
Perhaps the finest formulation of the basic idea, pointing both to the hard
struggle for it in the past and to future prospects, is that we mean by rights
"actual forces, which exist quite apart from our natural powers; forces which
belong to another world than that of nature, and which legislation or other
forms of law-giving merely liberate" (5).
BARNAHORVATH*

visiting Professor,The GraduateFaculty of Political and Social Science,New School

V
for SocialResearch.

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