Scandinavian Legal Realism
– Some Unfinished Business
Toni Malminen1
Abstract: This essay reviews some recent literature
on legal realism in general and Scandinavian rea-
lism in particular. Gazing forward, it also proposes
two further lines of investigation. It suggests that
historical studies should illuminate legal realism as
part of a long-term (c. 1860-1960) intellectual shift
in Western social thought, a shift precipitated by
socio-economic changes, such as the second indu-
strial revolution, the advance of secularization, and
the coming of the regulatory welfare state, as well
as by such intellectual transformations as the bre-
akthrough of scientific materialism and naturalism.
Moreover, instead of portraying legal realism nearly
exclusively as a criticism of legal formalism and con-
ceptualism, intellectual historians should discuss le-
gal realism as an intellectual antidote to the various
1. LL.D., Faculty of Law, University of Helsinki,
toni.malminen@helsinki.fi. This review essay
draws on the author’s doctoral dissertation,
The Intellectual Origins of Legal Realism, pub-
licly defended at the University of Helsinki on
the 10th of June 2016 (available on request from
the author). The dissertation discusses the Ger-
man, American, and Scandinavian intellectual
origins of legal realism by focusing on the 19th
and early 20th century debates on the relation-
ship between law and history, law and religion,
and law and the notion of conflict. While I bear
full responsibility for possible mistakes in this
review essay, I should like to thank Gregory
Alexander, Jukka Kekkonen, and Heikki Pihla-
jamäki for commenting on my study at its vari-
ous stages of completion and inspiring, among
other things, this review essay.
Retfærd | Nr. 4 | 2016
authoritarian and totalitarian intellectual currents
so characteristic of the 1920s and 1930s.
Key words: Scandinavian legal realism, Ameri-
can legal realism, anti-formalism, comparative
legal history, philosophical naturalism, the
Cold War, Oliver Wendell Holmes
1. Introduction
It has not been the best of times for Scandina-
vian legal realism – half a century of dwindling
influence and flagging enthusiasm. While the
chief works of leading Scandinavian realists
once captured the attention of eminent legal
theorists and political philosophers around the
world, philosophical and jurisprudential inter-
est in Scandinavian realism began to fade in
the 1970s.2 Brian Leiter, a leading contemporary
student of American legal realism, has even sug-
gested that Scandinavian legal realism is now “a
museum piece.”3
Nevertheless, things are not quite as bleak
as they sometimes seem. Recent decades have
also witnessed some brilliant lines of reinter-
pretation that portray Scandinavian realism as a
lively intellectual tradition.4 For instance, histo-
2. Rawls (1955), Hart (1959), Kelsen (1959), and
Stone (1960).
3. Leiter (2014).
4. One can detect a surge of interest even in the
Anglophone world – where Scandinavian re-
alism has been far less influential than on the
Continent – as demonstrated, among other
Side 57
Scandinavian Legal Realism – Some Unifinished Business
rians have produced superb scholarship on the
Uppsala school of philosophy, downplaying its
parochialism and tracing its philosophical ori-
gins variously from the neo-Kantian philosophy
of science to Friedrich Nietzsche’s critique of
morality.5 Moreover, a transnational perspec-
tive on legal realism has become more popu-
lar in recent years, bringing the international
tenor of the realist project into sharper relief
– although scholars continue to disagree over
the degree of similarity and difference between
various early 20th century critical legal philoso-
phies.6 Finally, Leiter, Torben Spaak, Thomas
Mautner, Jakob v.H. Holtermann, and others
have reinterpreted legal realism as a form of
philosophical naturalism, suggesting that legal
realism may have contemporary relevance for
various philosophical and jurisprudential de-
bates.7
things, by the publication of a wide-ranging
collection of essays, Axel Hägerström and Mod-
ern Social Thought (2014), the retranslation into
English of Alf Ross’s masterpiece, Om ret og
retfærdighed (Forthcoming 2017), and Stephen
P. Turner’s engagement with Hägerström in
his important study Explaining the Normative
(2010). See Turner (2010), Elieason, Mindus &
Turner (2014).
5. On Axel Hägerström’s neo­Kantianism, see
Nordin (1984), pp. 27-52. On Nietzsche’s influ-
ence on Hägerström, see Ruin (2000), pp. 3-27.
See also Mindus (2009). For a good account of
recent scholarship on the Uppsala school of
philosophy and Scandinavian legal realism, as
well as a superb contribution in its own right,
see Strang (2010a).
6. See, for example, Herget & Wallace (1987), Re-
imann (1996), Martin (1997), Duxbury (2001),
Alexander (2002), Pihlajamäki (2004), Ken-
nedy (2006), Zamboni (2007), Bix (2009), Spaak
(2009), Tuori (2009), Rabban (2013), and Tuori
(2015), pp. 101-149. For a good discussion on
the similarities and differences between Amer-
ican realism and Scandinavian realism, see
Leiter (2012). See also Sandström (2010).
7. See, for example, Leiter (2007), Mautner (2010),
Holtermann (2014), Spaak (2014), and Holter-
mann & Madsen (Forthcoming 2016). See also
Holtermann & Madsen (2015).
Side 58
This review essay surveys some of this re-
cent literature. In doing so, it also suggests some
further lines of research. In particular, it propo-
ses a historical research agenda that highlights
the long-term and transnational dimensions of
legal realism, an agenda that would also align
the historical study of Scandinavian realism
with some of the major contemporary concerns
of our time.
2. Rewriting the History of Legal Realism
The history of legal realism has long been re-
counted as a critique of legal formalism or con-
ceptualism; whatever the differences in key jur-
isprudential tenets between the German Free
Law Movement, Scandinavian realism, and
American legal realism, they at least had a com-
mon enemy in conceptualism and formalism.8
The received view on legal formalism has
been challenged, however. For instance, Nor-
dic legal historians have begun to highlight the
Nordic realism or pragmatism of the 19th cen-
tury. Despite the prestige of German scholar-
ship, idealism and conceptualism had only a
moderate impact on Nordic legal academics,
with most scholars acknowledging legislatures,
not legal mandarins, as the preeminent legal
authorities.9 Similar reassessments have been
undertaken in Germany and the United States.10
8. See, for example, Helin (1988), pp. 11-260,
Duxbury (1995), pp. 9-64, and Pihlajamäki
(2000).
9. Björne (2002), pp. 208-258. See also Blandhol
(2005).
10. Historians of German legal thought have reha-
bilitated many historicists and conceptualists.
Joachim Rückert and James Whitman have ar-
gued, respectively, that instead of being a legal
conservative, Friedrich Carl von Savigny was a
middle-of-the-road moderate and a visionary
constitutionalist reformer. Rückert (1984), p.
227, Whitman (1990), pp. 92­199. On Georg
Friedrich Puchta, see Haferkamp (2004). On
Bernhard Joseph Hubert Windscheid, see Falk
(1999). This revisionist upsurge has been mir-
rored in American scholarship. For overviews,
see Siegel (2002), and Schmidt (2014).
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As legal realism has long been understood
as a revolt against formalism, the net effect of
historical revisionism has been a kind of real-
ism fatigue: once seen as an intellectual revolu-
tion, the rise of realism has begun to look like
a non-event. Discussing the standard German
narrative, Hans­Peter Haferkamp calls Rudolf
von Jhering’s famous about-face of the 1860s
– his shift from his early legal constructivism
toward a more realistic theory of law – a “pub-
licity stunt.”11
Brian Z. Tamanaha argues that the revision-
ist project has demonstrated that the story of
American formalism is “largely an invention”
and American legal realism “substantially mis-
apprehended.”12 In his magisterial history of
Nordic legal scholarship, Lars Björne contends
that Scandinavian legal realism was both intel-
lectually untenable and largely inconsequen-
tial.13 The underlying sentiment of some of the
recent revisionist literature on formalism has
thus been one of doubt toward legal realism.
If the conventional wisdom on formalism has
been bogus, this literature seems to suggest,
perhaps the traditional narrative on the realist
assault on formalism has been spurious as well.
It is here, however, in countering these
doubts about the novelty and significance of
legal realism, that fresh lines of interpretation
are warranted. In the remainder of this essay,
I will therefore outline a few novel perspecti-
ves on the history of legal realism, perspectives
that shed light on intellectual developments in
Germany, Scandinavia, and the United States
alike. More precisely, I will argue that legal re-
alism is best viewed as a long-term historical
phenomenon consisting of three distinct stages:
its inception in the 1860s and subsequent early
11. Haferkamp (2010), p. 106.
12. Tamanaha (2009), p. 3. For critical assessments
of Tamanaha, see, however, Leiter (2010), and
Brophy (2013).
13. Björne (2007), pp. 315-371. For a critical view,
see, however, Helin (2009).
Retfærd | Nr. 4 | 2016
Toni Malminen
development, spearheaded by Jhering in Ger-
many, Holmes in the United States, and Hä-
gerström in Scandinavia; the coming of mature
legal realism in the 1920s and 1930s, the phase
most scholars tend to associate with legal rea-
lism; and a period of gradual decline commen-
cing in the late 1930s, when a number of pun-
dits began to associate realism with fascism and
godless communism.
I will also propose novel historical perspe-
ctives for approaching each of these successive
stages. With regard to the first, I suggest that
more attention be paid both to the rise of scien-
tific materialism and naturalism in framing the
intellectual background of early legal realism,
as well as to three substantive positions held
by early legal realists: their critical historicism,
demystified or disenchanted attitude toward re-
ligion and values, and emphasis on social con-
flict. With regard to the age of mature legal re-
alism, I submit that legal realism was as much
a critique of such political ideologies as classi-
cal liberalism, contemporary conservatism, and
nascent totalitarianism as it was of legal forma-
lism. Finally, I will briefly argue that the golden
age of legal realism came to an end with the
beginning of the Cold War.
I believe it has never been explicitly argued
in the scholarly literature that legal realism in
fact consisted of three distinct phases.14 While
most students of legal realism acknowledge
the decisive influence of Jhering, Holmes, and
Hägerström on the development of the subse-
quent legal realism of K.N. Llewellyn and Alf
Ross and others, they have hesitated to count
them as genuine legal realists, sometimes pre-
ferring to speak of “proto-realism.”15
It is often better for historians to define
historical processes rather than non-historical
states, however, and if one conceives of legal
14. See, however, Sebok (1998), pp. 76-78, who dis-
tinguishes between three phases of American
antiformalism.
15. Pihlajamäki (2000).
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Scandinavian Legal Realism – Some Unifinished Business
realism as a historical process, it is convenient
to begin with the antiformalist polemics of Jhe-
ring and his followers in Germany (including
the representatives of the Free Law Movement),
the United States (where Holmes played a key
role in brokering Jhering’s diatribes), and Scan-
dinavia.16 It was the key insights of these early
realists – stretching from the need for empirical
legal study to non-cognitivism in ethics and val-
ues and to a novel theory of adjudication – that
the mature legal realists of the 1920s and 1930s
wished to bring to fruition.
What was it exactly that these early legal
realists opposed so vehemently? It should be
stressed at the outset that their critique of con-
temporary legal thought was only partially
fixed on alleged mechanical, deductionist for-
malism – the “abuse of deduction” – and the
positivism of the late 19th century. All too of-
ten, scholars have forgotten that in addition to
legal formalism and conceptualism, historicist,
idealist, and religious elements were still very
much present in legal thought as late as the turn
of the century, the high tide of legal formalism.
Consequently, when legal realists began to
voice their dissatisfaction with contemporary
legal thought, they also confronted philosophi-
cal idealism, legal historicism – widely influen-
tial throughout the Western world during the
16. On the importance of defining historical pro-
cesses rather than non-historical states, see
Fischer (1970), p. 280. The phrases “Amer-
ican legal realism” and “Scandinavian legal
realism” have conceptual histories of their
own, yet to be written. Legal realism was es-
tablished in America in connection with the
Pound-Llewellyn debate of 1930-1931. The
phrase “Uppsala philosophy” was originally
deployed by the school’s critics to convey a
sense of parochialism, but the expression was
widely adopted; in the 1940s it began to de-
note, however, a distinct phase of Swedish phi-
losophy preceding the breakthrough of ana-
lytic philosophy. “Scandinavian legal realism”
became a common expression only after World
War II.
Side 60
19th century – and natural law theories.17 What
many legal realists wished to offer – and by le-
gal realists I again refer to the broad coalition of
anti-formalist, empirically-minded writers that
began with Jhering in the 1860s – were such
novel perspectives as critical legal historicism,
secular moral skepticism, and conflict theories
of law and morals.
These perspectives have not been investi-
gated as thoroughly as they should; taken to-
gether, they amounted to the beginning of
modernism in legal thought. Such approaches
as critical legal historicism, secular moral skep-
ticism, and conflict theories of law transcend
conventional topics of jurisprudence, such as
adjudication and legal validity. As they are not
specific to civil law or common law, they also
facilitate transnational scholarship, while cap-
turing at the same time some of the key tenets of
realists’ worldview and jurisprudential mind-
set.18 Let us begin, then, by briefly discussing
critical historicism, disenchantment, and ago-
nism as aspects of legal realism.
3. Critical Historicism
While most realists were not professional legal
historians and much of their historical scholar-
ship has fallen into obscurity, several legal re-
alists wrote on the philosophy of history or on
the genealogy of various legal doctrines.19 Many
legal­philosophical treatises written by realists
also contain historical discourses seeking to il-
luminate the fallacies and primitive thinking
17. On legal historicism in the United States, see
Rabban (2013a), pp. 153-380.
18. The common law/civil law division may have
acted as an intellectual barrier to transnational
studies in general and to comparative studies
of legal realism in particular. While useful to
lawyers, however, this distinction is not al-
ways important to social scientists and intel-
lectual historians. For a fine discussion, see
Whitman (2007), pp. 350-354.
19. See, for example, Hägerström (1909), pp. 65-70
and, Frank (1945), pp. 31-32.
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still lingering in modern legal thought.20 Such
historical ventures were undertaken in the spirit
of critical historicism, professing non-fatalism
as well as an instrumentalist attitude to law as
a tool of socio-legal reform.
Like Savigny and other legal historicists,
Jhering, Holmes, and Hägerström recognized
the omnipresence of historical change. Unlike
Savigny, however, theirs was a tough­min-
ded view of the past; in stressing contingency,
discontinuity, the secular nature of historical
change, and liberation from the past, they were
heralds of modernism in social thought. Dra-
wing sustenance from contemporary philoso-
phy and the social and natural sciences, their
historical studies discarded idealist metaphy-
sics, undermined the nobility of the past, and
historicized such venerable traditions as Ro-
man and common law. With one foot planted
in the 19th century culture of historicism and the
other reaching toward 20th century modernism,
these critical historicists bridged legal and mo-
ral thought from romantic historicism and phi-
losophical idealism to the age of legal realism
and instrumentalism.
Offered as an alternative to metaphysical
conceptions of history, such as those professed
by Savigny and Georg Wilhelm Friedrich He-
gel, the critical historicism of Hägerström and
others drew on contemporary cultural anthro-
pology to gain a less parochial perspective on
law and morals, a perspective that informed Hä-
gerström’s writings on the law’s magical featu-
res in particular. With its novel historical con-
sciousness, marked by a debunking spirit and
instrumentalist vision of law and morals, critical
historicism mediated a shift from 19th century
20. Ross, for example, studied the magical origins
of modern law with Hägerström in the 1920s,
and most of his studies, including Om ret og
retfærdighed (1953), juxtaposed the scientific
approach, including legal realism, with magi-
cal, religious, and metaphysical attitudes about
law and social life. Blandhol (1999), p. 84.
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Toni Malminen
historicism toward 20th century modernism and
legal realism.
The spirit of critical historicism pervades
such classics in the realist tradition as Holmes’s
The Common Law (1881), Hägerström’s Der rö-
mische Obligationsbegriff im Lichte der allgemei-
nen römischen Rechtsanschauung (1927), Charles
Austin Beard’s An Economic Interpretation of the
Constitution of the United States (1949), Gunnar
Myrdal’s Vetenskap och politik i nationalekonomien
(1930), Ross’s Kritik der sogenannten praktischen
Erkenntnis: Zugleich Prolegomena zu einer Kritik
der Rechtswissenschaft (1933), and such brilliant
historical surveys of commercial law as Walton
Hale Hamilton’s The Ancient Maxim Caveat
Emptor (1931).
Despite the significance of such a historical
approach for legal realists, however, historians
have yet to explain fully the allure of critical
historicism in the first half of the 20th century.
4. Legal Realism as the Advance of
Secularization
Did the rise of legal realism represent the ad-
vance of a philosophy of atheism, materialism,
and immoralism? That, at least, was the position
of some of its detractors in the Interwar years. In
the United States, a group of Jesuit legal schol-
ars, eager to demonstrate the vitality of natural
law theory in a secular age, argued that it was
legal realism that was being practiced by Ad-
olf Hitler, Joseph Stalin, and their henchmen.21
While Sweden lacked a strong Catholic constit-
uency to support a revival of neo-Thomism, in
the 1920s and 1930s Scandinavian realists were
in like fashion accused of robbing Swedish cul-
ture of its soul through nihilism and immoral-
ism, thus paving the way for fascism.22
Since the 1960s, however, the realism­ver-
sus-natural-law debate has been overshadowed
by the realist reaction against conceptualism
21. Lucey (1942), p. 523.
22. Ahlberg (1941).
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Scandinavian Legal Realism – Some Unifinished Business
and formalism.23 Nonetheless, it was an import-
ant event in the secularization of Western social
thought, and historians should probe deeper
into the relationship between secularization and
legal realism.24 Although secularization was a
major historical trend in the age of legal realism
and realism was a distinctly secular approach
to law and morals, no specialized study on the
relationship between legal realism and the secu-
larization of legal thought has been undertaken.
It is no coincidence, however, that the rise
of legal realism coincided with the fall of the
American Protestant Establishment and a cri-
sis in the Church of Sweden. Legal realists had
a secular outlook, and their scholarly program
was cosmopolitan and scientific in spirit. Hop-
ing to substitute science, moral skepticism, and
legal realism for religion, tradition, and natural
law, the realists established and legitimated an
expert culture founded on scientific rationality,
thus functioning as rationalizing intellectuals
whose work contributed to the demystification
or disenchantment of the world.25
Stretching from Hägerström’s non­cogni-
tivist moral theory to Ingemar Hedenius’s great
atheist diatribe, Tro och vetande (1949), Alva and
Gunnar Myrdal’s social engineering of Swedish
23. Some contemporary critics have sought to re-
invigorate the religious-ethical line of assault
on legal realism. In Law without Values (2000),
his debunking of Holmes, Albert W. Alschuler
writes that his interpretation of Holmes’s influ-
ence on American law differs from that of vir-
tually every other scholar because, to his mind,
“post­Holmes visions of law are the product of
a revolt against objective concepts of right and
wrong rather than a revolt against formalism.”
Alschuler (2000), p. 1. For an important study
discussing Ross’s legal philosophy as criticism
of natural law, see Blandhol (1999).
24. For a recent study highlighting the family
resemblance between the anti-metaphysical,
secular Weltanschauung of the Vienna Circle,
Scandinavian legal realism, and Kelsen, see
Stadler (2014).
25. On Gunnar and Alva Myrdal as rationalizing
intellectuals, see Eyerman (1985).
Side 62
family policy, and Ross’s life-long hostility to-
ward natural law, the Uppsala school and Scan-
dinavian legal realism played a significant role
in advancing the secularization of intellectual life
in the Nordic countries, ushering in an era of ra-
tional social policies characteristic of the Nordic
model of a highly secularized regulatory wel-
fare state. Nevertheless, the connections between
these phenomena have rarely been discussed.26
5. Into Conflict Theory
Finally, the emergence of legal realism amounted
to a turn toward conflict theories of law and mor-
als, a move driven simultaneously by contem-
porary political, economic, and social develop-
ments, including the rise of organized labor, and
various intellectual currents such as Darwinism.
Ranging from Jhering’s booklet on law as a strug-
gle, Der Kampf um’s Recht (1872), to Holmes’s The
Gas­Stokers’ Strike (1873) and Hägerström’s ni-
hilistic approach to values, realistic analyses of
law and morals sprang from a perception of con-
stant social and political struggle, with a particu-
lar emphasis on industrial strife.27
In the language made famous by Ferdinand
Tönnies, with the emergence of legal realism
legal and moral thought began to move from
Gemeinschaft images of society to a Gesellschaft
vision. This move precipitated, among other
things, the long-term decline of custom as a
source of law – such an integral part of 19th
century legal historicism – and made statutory
law – which after all emerges from democratic
struggles – seem the chief engine of legal evolu-
tion. It also necessitated hard-boiled analyses of
political democracy, a viewpoint that character-
ized the intellectual careers of Ross and Herbert
Tingsten in particular.28
26. The best Swedish studies deal with Hedenius’s
critique of religion. See, for example, Carls
(2001), and Nordin (2004).
27. Jhering (1872), Holmes (1873), Hägerström
(1911), pp. 7-8.
28. Strang (2010b).
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6. The Intellectual Background of Legal
Realism
In addition to probing deeper into these three
constellations of ideas, intellectual historians
would do well to trace the origins of legal real-
ism to the rise of scientific materialism and nat-
uralism in the course of the latter half of the 19th
century. This topic has been strangely neglected
in intellectual history: While an enormous num-
ber of studies have detailed the intellectual life
of the first half of the 19th century, with its ide-
alist and romantic currents, the materialist con-
troversies, which called idealism and pantheism
in question, have received far less attention.29
In legal history, too, the significance for le-
gal thought of the rise of Savigny and Hegel and
their successors is better understood than the im-
pact of their materialist critics.30 The latter half
of the 19th century has too often been assessed
one-sidedly from the perspective of legal formal-
ism. Although formalism or conceptualism was
an important phenomenon, it was hardly the
only notable intellectual current in legal thought
and perhaps not the most consequential, as the
late 19th century was an exceptionally fertile era
in Western intellectual history.
It was during the 1860s and thereafter,
during the first phase of legal­realist approaches
to law, that a materialist worldview, which
stemmed from the German materialism con-
troversies in philosophy as well as from higher
biblical criticism in theology and Darwinism in
biology, began to gain the upper hand in the
age­old battles between idealism and materi-
29. For an overview, see Bayertz, Jaeschke & Ger-
hard (2007). See also Schnädelbach (2013).
30. See, however, Gerhard Dilcher’s recent over-
view of 19th century German legal thought,
which notes the impact of the natural sciences
and evolutionary theory on the Germanist
legal historians of the late 19th century. It is
nevertheless instructive that while Dilcher dis-
cusses the objective idealism of Savigny, he
does not mention German scientific material-
ism. Dilcher (2016).
Retfærd | Nr. 4 | 2016
Toni Malminen
alism and reason and faith. Materialism also
called many of the fundamental assumptions
of Western law and morality into question. In
suggesting that there was no God, no free will,
no soul, and no immortality, materialism under-
mined the metaphysics underpinning Christian
morality and secular jurisprudence alike.31
Materialism also contested the classical the-
ories of criminal liability and freedom of con-
tract, with their stress on free will and indivi-
dual responsibility. On a methodological level,
in turn, materialism challenged a priori reaso-
ning and the reliability of human intuition, cele-
brating the achievements of the natural sciences
and suggesting that their methods should be
brought to bear in the humanities as well.
Jhering aligned his outlook with materialism
in the 1850s, a move that was precipitated by the
post-1848 crisis of Roman law.32 While Holmes
never embraced German scientific materialism,
he was influenced by Victorian scientific natu-
ralism, a worldview close in spirit to scientific
materialism.33 Hägerström was also influenced
by the materialist philosophies that abounded
in Europe, including Marxism. In fact, nearly all
the chief contentions of Scandinavian realists –
including their non-cognitivism about values,
hostility toward natural law, and their wish to
reconstruct law as an empirically based disci-
pline – were indebted to materialist and natural-
ist controversies, either directly, as in case of the
influence of Nietzsche and Karl Marx on Häger-
ström, or through the influence of neo­Kantian
opposition to materialism, which also inspired
Hägerström and his associates.
Despite the recent deeply rewarding efforts
of historians to trace the intellectual origins of
the Uppsala school and Scandinavian realism,
historians have yet to map the connections be-
31. Beiser (2013).
32. On Theodor Mommsen’s and Jhering’s com-
mercial reinterpretation of Rome, see Whit-
man (1990), pp. 213-228.
33. Burrow (1992).
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Scandinavian Legal Realism – Some Unifinished Business
tween scientific materialism and legal realism.
As naturalizing jurisprudence has been a ma-
jor jurisprudential motif in recent years, and as
20th century philosophical naturalism is also in-
debted to materialism, probing the relationship
between 19th century scientific materialism, the
Uppsala school, and Scandinavian legal realism
would also provide an opportunity to wed the
concerns of intellectual historians to those of
contemporary legal philosophers.
7. The Political Background of Legal
Realism
A novel historical sensibility, a secular world-
view, and an agonistic perspective on social life
– these were the three key perspectives shared
by realists in Germany, the United States and
Scandinavia. What, one might nevertheless ask,
made them so attractive in the 1920s and 1930s,
when mature legal realism began to emerge?34
It is here that the standard historical narra-
tive of legal realism as a revolt against forma-
lism is at its most unilluminating. Instead, the
allure of critical historicism, secular legal the-
ory, and agonism was based on their alignment
with three broader turn-of-the-century moder-
nist trends: progressive instrumentalism, an-
ti-fascism, and pluralism. The realist outlook
was attractive because it seemed to offer an in-
tellectual antidote to such jarring ideologies as
authoritarianism, fascism, totalitarianism, and
classical liberalism and conservatism, all flouris-
hing in the 1920s throughout the Western world.
34. I have sought to demonstrate in a previous
study that Finnish legal scholars were hostile
to the radicalism of Scandinavian legal realism
after the 1918 Civil War. See Malminen (2007).
The war, essentially a form of class struggle,
long divided Finland and provided a strong
impetus for right-wing politics and antisocial-
ist attitudes. It was this cultural legacy that
made legal realism, with its emphasis on value
relativism and agonism, such a fearsome phi-
losophy for the Finnish legal community.
Side 64
Demonstrating as it did the obsolescence
of many legal rules and moral imperatives,
critical historicism was a major strand in re-
form-minded approaches to law and morals.
Hägerström’s associates came to share not only
his moral skepticism but also his conviction that
modern social thought retained elements of the
primitive mind, elements that would need to be
banished before the world could be made over.35
Legal realists also embraced Hägerström’s phi-
losophy of history, which eschewed all teleolog-
ical conceptions of history (including Marxist),
which failed to acknowledge the role of human
agency in law and society.36
Historiography has often served as an apol-
ogy, endowing the current status quo with the
authority of the past.37 Critical historicism, in
contrast, sought to liberate the present from the
past by showing the obsolescence of many con-
temporary legal institutions and arrangements.
In undermining the taken-for-granted nature of
law and morality, critical historicism paved the
way for legal instrumentalism, a key component
of legal realism, political progressivism, and so-
cial democracy alike.38
The critique of teleological, fatalistic con-
ceptions of history should be juxtaposed with
conservative and teleological positions. From
Edmund Burke to Savigny and his followers,
conservatives have argued that rapid reform is
35. Olivecrona (1953), p. XXIII.
36. Gunnar Myrdal, for example, denounced
the teleological visions inherent in socialism
and liberalism alike, seeking to offer progres-
sive social policy and social engineering as a
platform for Swedish social democracy. See
Myrdal (1932a), and Myrdal (1932b).
37. For an excellent discussion on the uses of legal
history, see Gordon (2008), pp. 344-347.
38. Robert Summers has even suggested that the
term “American legal realism” should be jet-
tisoned in favor of “pragmatic instrumental-
ism,” which indeed more aptly describes the
phenomenon. Summers (2000), pp. 56­60. While
Summers is quite right about the vagueness of
the term legal realism, it seems likely to persist.
Retfærd | Nr. 4 | 2016

folly, as one generation cannot possibly hope
to match the accumulated wisdom of previ-
ous generations. Realists, by contrast, believed
that the emerging social sciences would in fact
produce new insights into social life with great
speed, insights capable of justifying various so-
cio-legal reforms. By the 1920s, teleological vi-
sions of history, in turn, had become associated
with violence and extremism. Hegel’s teleologi-
cal philosophy of history, for instance, had been
co-opted by Prussian nationalism in the 1870s,
in order to justify Prussia’s growing role in Eu-
ropean power politics and its increasingly im-
perialistic aspirations.39
When Hitler, serving his sentence in Lands-
berg Prison for high treason after the failed 1923
Beer Hall Putsch, dictated the first volume of his
autobiographical work Mein Kampf (1925), he
tapped into old German ideas of race and the
nation’s historical destiny, and formulated an
even more venomous law of racial struggle and
a vision of ecological panic according to which
Germans must either starve or seize nature’s
bounty by force and military might.40 Commu-
nists, too, had a teleological vision of history,
which predicted that the working class would
one day overthrow capitalism in a great, violent
cataclysm.41
Suggesting as it did that our destiny is dic-
tated neither by the choices of our predeces-
sors nor by inevitable historical destiny, critical
historicism provided a vision of peaceful, evi-
dence-based social and legal reform, a vision
39. Johann Karl Friedrich Rosenkranz idealized
Hegel as Germany’s national philosopher in
his Hegel als deutscher Nationalphilosoph (1870).
40. On Hitler’s political vision as a response to
ecological panic, see Snyder (2016), pp. 1­28.
41. Socialism and communism have of course
assumed a variety of guises over the last 150
years. A useful guide to the various currents
of socialistic thought is Kołakowski (2008).
Retfærd | Nr. 4 | 2016
Toni Malminen
compatible with the progressive, social-demo-
cratic politics of the era.42
Moral skepticism and secular legal thought
also affirmed man’s capacity to direct the course
of social life, as they cast doubt on the unifor-
mity and permanence of morals, stressing in-
stead value pluralism and moral relativism. The
secular­scientific worldview was an attractive
alternative to the völkisch, the religious and su-
perstitious imagery so characteristic of the Inter-
war Era, when myths about the Volk and blood
abounded.43
Finally, the agonistic social vision acknow-
ledged the legitimacy of group conflict and
emphasized that statutory law emerged as a
result of political and legal struggles. It thus
dovetailed with modern democracy.
All these approaches were attractive to
those legal realists who participated in the
construction of the modern regulatory wel-
fare state. According to G. Edward White, the
leading legal realists were alluring intellectual
figures because they were “seen…as theorists
who believed that humans were the principal
architects of the universe. They were seen as af-
firming that humans…had the capacity to make
42. The spirit of critical historicism was also
shared by two masterpieces of philosophy:
Karl Raimund Popper’s The Open Society And
Its Enemies (1945), targeted at the determinism
and fatalism of moral historicism and moral
futurism alike, and Bertrand Arthur William
Russell’s A History of Western Philosophy (1945),
driven by the author’s need to identify ani-
mistic and irrational doctrines in Western phi-
losophy so as to wage an intellectual struggle
against totalitarianism. Popper (1945), pp. 187-
199, and Russell (1945).
43. In a brilliant study, Peter Galison has argued
that the Vienna Circle of logical positivists and
the representatives of modernist Bauhaus ar-
chitecture were both committed to rationalism,
secularism, and internationalism, opposing
the religious and nationalist polemics of the
Right. This was the age of Neue Sachlichkeit.
The Uppsala school and legal realism sprung
from similar concerns. Galison (1990).
Side 65
Scandinavian Legal Realism – Some Unifinished Business
change equate with progress.”44 Hägerström
spearheaded such an outlook in Sweden, and
it was his secular, instrumentalist, and non-fa-
talist mindset, so congenial to modernism and
social democracy, that best explains his tremen-
dous influence within the Swedish social sci-
ences during the first half of the 20th century.45
The second prominent, yet undertheorized,
theme underlying the success of critical histor-
icism, moral skepticism, and conflict theories
– i.e., the success of legal realism – is plural-
ism and the dynamics of inclusion and exclu-
sion in social and legal thought. The dark side
of romantic philosophies of identity, harmony,
and national unity – so powerful throughout
the Western world from the early 19th century
until 1945 – lies in their exclusivity. Despite his
cosmopolitan preference for Roman law over
the domestic Germanic tradition lionized by
his Germanist rivals, Savigny’s ideal of a ho-
mogenous culture had led him to oppose Jewish
emancipation, which he suspected of fostering
secular individualism and of creating an alien
community within the German nation.46
While Hegel had supported Jewish eman-
cipation, overcoming the fierce antisemitism of
his youth, within his historical dialectics Lu-
theran Christianity occupied the top rung of the
ladder from which absolute knowledge was to
emerge.47 The idea of the state as an organic
unity, championed in the latter part of the 19th
century by Johann Caspar Bluntschli, a late Savi-
gnyan, was deployed to justify the Kulturkampf
– the cultural struggle waged against German
Catholics by Otto von Bismarck in the 1870s to
safeguard a German identity derived from the
Lutheran Reformation – by subordinating insti-
tutions and individuals to state sovereignty.48
44. White (1995), p. 580.
45. Sigurdson (2000).
46. Toews (1989), p. 154.
47. Yovel (1998).
48. Bluntschli (1872). See also Senn (1993).
Side 66
It was in this virulent late 19th century atmo-
sphere that German legal historians conceived
the idea of Roman law as a disease and the Ger-
man Rezeption of Roman law as the point of in-
fection.49 These ideas reverberated in Western
social and legal thought until 1945.50
In contrast to romantic historical narratives,
which exalted the continuity of national history
and the national character, critical historicism
debunked such ideas by tracing the roots of do-
minant legal and moral arrangements back to
primitive societies, by demonstrating the ma-
terialist motives and psychological drives un-
derlying human action, and by demonstrating
the malleability of human nature and social in-
stitutions. A comparative outlook, quite fashio-
nable among legal realists, undermined the su-
periority of national law, supporting cultural
relativism.
A wish to create more cosmopolitan alterna-
tives to local communities, with their patterns
of inclusion and exclusion, explains the allure
of pluralism, relativism, and critical historicism.
At the onset of pluralist democracy, critical hi-
storicism and legal realism affirmed that the so-
cial world could be remade and foregrounded
private experiences rather than national homo-
geneity and national history. Their compatibi-
lity with the ideals of modernism and pluralist
democracy thus underwrote their success in the
opening decades of the 20th century. When a tide
of totalitarianism began to sweep over Europe
in the 1920s, non-fatalism, pluralism, and an
unshakeable commitment to science seemed
that much more attractive.
The ideals of modernism and pluralism
were not national currents; they were broad in-
ternational trends. The pressure to adopt a mo-
dernist outlook and embrace political and cul-
tural pluralism was felt in Germany, the United
States, and the Nordic countries alike. Along
49. Whitman (1994).
50. On the underlying premises of Nazi legal
thought, see Hansen (2010).
Retfærd | Nr. 4 | 2016

with direct intellectual contacts between mo-
dernists and legal realists in various countries,
the international scope of modernism and plu-
ralism goes a long way to explaining the similar
intellectual trajectories of German, American,
and Nordic legal thought during the first half
of the 20th century.
From the mid-1930s on, however, disillu-
sionment with legal realism spread both among
realists themselves and within the scholarly and
legal communities at large. Following the rise of
totalitarian regimes in Europe, critics began to
accuse legal realism of legitimating dictatorship,
undermining the rule of law, and propounding
the ideology of “might is right.”51 This was an
intellectual struggle between scientific natural-
ists and legal realists, on the one hand, and tra-
ditional Catholic and Protestant elites, on the
other hand. This struggle, too, was transnational
and therefore deserves comparative studies of
its own.52
The Cold War Era also witnessed a reorien-
tation of Scandinavian realism. The early real-
ism of Hägerström and Vilhelm Lundstedt in-
vigorated the cultural radicalism of the 1870s
and 1880s, manifested in the radical econom-
ics and politics of Knut Wicksell, the literary
modernism of August Strindberg, and the ac-
tivities of Verdandi, a debating society estab-
lished by Wicksell, Karl Staaff, Hjalmar Brant-
ing, and others. It was the spirit of Verdandi
that Hägerström and his associates wished to
revive between the 1910s and the 1940s. After
1945, however, the agenda of Scandinavian re-
alism was rewritten. A worldwide shift in an-
alytic philosophy was witnessed during the
Cold War: its transformation from a left-wing
cultural movement into technical philosoph-
ical analysis.53 It was in this period that Ross
51. See Kornhauser (2015), pp. 90­129.
52. For an excellent survey of American debates,
see Purcell (1973), pp. 159-178.
53. For an excellent analysis of this shift, see
Strang (2009).
Retfærd | Nr. 4 | 2016
Toni Malminen
and Hedenius began to abandon their Häger-
strömian toils. Moving toward Anglophone an-
alytic philosophy, Scandinavian legal realism
was transformed into a depoliticized mode of
philosophical and jurisprudential analysis that
had no explicit stake in social change.
8. Conclusion
This essay has sought to expose some of the
links between the early realism of the late 19th
century and mature 20th century legal realism.
In addition, it has argued that legal realism
should not only be viewed as a jurispruden-
tial debate; rather, it was also part of the great
ideological struggles of the 1920s and 1930s. To
bring this essay to a close, let us briefly link
those earlier debates to some of the chief intel-
lectual concerns of our time.
Some of our current concerns might, in fact,
renew our interest in legal realism and the ad-
joining debates of the early 20th century. Their
non-fatalism, critique of absolutism, demysti-
fied or disenchanted attitude, pluralism, and
commitment to science and objectivity are be-
ginning to look increasingly attractive in light
of some of the jarring social and political devel-
opments of our own age. The rhetoric of natio-
nal unity is still commonplace, and teleological
visions of the coming clash of civilizations or
the triumph of liberal capitalism or the appro-
aching decline of the Western world have seen
a remarkable return since the 1990s.
A dramatic rise in anti-intellectual populism
has recently come to characterize European and
American politics. While I doubt that the intel-
lectual history of the early 20th century could
provide a simple cure to our current predic-
ament, these current issues are likely to have
an impact on how we appraise the debates of
the past. The current global hegemony of rights
discourse, the demise of social democracy, and
the rise of populism and neo-fascism may well
reignite our interest in the history of legal real-
ism and provide the impetus for a new round of
revisionist studies. For as we contemplate pos-
Side 67
Scandinavian Legal Realism – Some Unifinished Business
sible intellectual strategies to counter the objec-
tionable ideas of the present day, we may find
ourselves drawn to the intellectual history of
the 1920s and 1930s – when even more virulent
strains of such ideas confronted legal realists
and the world at large.
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