Abstract
Olivecrona follows Hägerström in maintaining (i) that the noun ‘right’ does not refer to anything real, but to some sort of imaginary power, and that there are no rights in the natural world. He maintains, however, (ii) that the concept of a right nevertheless fulfills important functions in legal thinking, namely a directive, an informative, and a technical function, respectively, as well as the function of exciting or dampening our feelings. He also maintains (iii) that the non-existence of rights means that the so-called declaration theory of court judgments is mistaken, and (iv) that there is a close connection between a belief in rights (and other non-natural entities) and a belief in magic.
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Notes
- 1.
Wedberg’s and Ross’s analyses are results of the so-called Scandinavian rights debate, which was initiated by Per Olof Ekelöf (1945).
- 2.
Thanks to Åke Frändberg for drawing my attention to the lack of clarity in Olivecrona’s analysis.
- 3.
I cannot quite follow Olivecrona’s train of thought here. On Olivecrona’s analysis, whereas rights are social facts, the concept of a right is not a social fact.
- 4.
To be sure, an external legal statement can fulfill a directive function in an indirect way in certain circumstances, that is, when the audience already has an appropriate attitude, which gives rise to action when combined with the relevant information. What I have in mind is the obvious fact that an ordinary statement of fact, such as “Your house is on fire,” can guide behavior indirectly, provided that the agent is motivated to save his (or her) own life and that of his (or her) spouse or children who happen to be in the house. But this type of indirect guidance is of course not what Olivecrona has in mind when he maintains that a legal statement can fulfill a directive function.
- 5.
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Spaak, T. (2014). The Concept of a Right. In: A Critical Appraisal of Karl Olivecrona's Legal Philosophy. Law and Philosophy Library, vol 108. Springer, Cham. https://doi.org/10.1007/978-3-319-06167-2_9
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