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A Critical Appraisal of Karl Olivecrona's Legal PhilosophyLegislation

A Critical Appraisal of Karl Olivecrona's Legal Philosophy: Legislation [Olivecrona’s account of legislation follows a reliably realist pattern in that it is concerned not with the capacity of legislative products to establish legal relations, but with their capacity to cause human behavior. Rejecting as he does the view that legal rules have binding force and can confer rights and impose duties, Olivecrona argues instead that they are independent imperatives, which possess a suggestive character by virtue of which they influence the citizens (and the legal officials) on the psychological level. For, as we have seen, he holds that the citizens (and the officials) are disposed to obey the independent imperatives because they revere the constitution. On such a realist understanding of law, one important task for anyone who wants to understand legislation and its role in the world of law is to explain how the independent imperatives become incorporated into the legal machinery. Although such incorporation is of course mainly done nowadays through the process of legislation, Olivecrona points out that custom and judge-made law also play a role. In this chapter, I therefore present Olivecrona’s account of how legal rules become incorporated into the legal machinery by means of legislation, and to some extent by means of custom and judge-made law, and add a few critical remarks on this account.] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

A Critical Appraisal of Karl Olivecrona's Legal PhilosophyLegislation

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Publisher
Springer International Publishing
Copyright
© Springer International Publishing Switzerland 2014
ISBN
978-3-319-06166-5
Pages
195 –205
DOI
10.1007/978-3-319-06167-2_12
Publisher site
See Chapter on Publisher Site

Abstract

[Olivecrona’s account of legislation follows a reliably realist pattern in that it is concerned not with the capacity of legislative products to establish legal relations, but with their capacity to cause human behavior. Rejecting as he does the view that legal rules have binding force and can confer rights and impose duties, Olivecrona argues instead that they are independent imperatives, which possess a suggestive character by virtue of which they influence the citizens (and the legal officials) on the psychological level. For, as we have seen, he holds that the citizens (and the officials) are disposed to obey the independent imperatives because they revere the constitution. On such a realist understanding of law, one important task for anyone who wants to understand legislation and its role in the world of law is to explain how the independent imperatives become incorporated into the legal machinery. Although such incorporation is of course mainly done nowadays through the process of legislation, Olivecrona points out that custom and judge-made law also play a role. In this chapter, I therefore present Olivecrona’s account of how legal rules become incorporated into the legal machinery by means of legislation, and to some extent by means of custom and judge-made law, and add a few critical remarks on this account.]

Published: Jun 18, 2014

Keywords: Legal Rule; Judicial Review; Legal Scholar; Realist Understanding; Psychological Level

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