From IVR encyclopedie
by Jes Bjarup
Ross, Alf Niels Christian (1899-1979). Danish jurist and philosopher, professor of law at the University of Copenhagen where he taught international law, constitutional law and jurisprudence. The fundamental theme in Ross’s jurisprudential writings concerns the philosophical approach to the question of legal knowledge and his answer can be divided into four phases: 1. from 1923 to 1930 is influenced by Hans Kelsen, 2. from 1930 to 1940 is influenced by Axel Hägerström, 3. from 1940 to 1960 is influenced by logical positivism, 4. from 1960 to 1970 is influenced by the Oxford philosophy of linguistic philosophy.
1. Ross graduated in law in 1922 and received a scholarship to study abroad and stayed in Vienna 1924-1926 where he attended Hans Kelsen’s seminars and also wrote his manuscript Theorie der Rechtsquellen. Ross subscribes to the Neo-Kantian view that philosophy is a transcendental inquiry grounded in reason concerned with the conditions of cognition in terms of categories that that must be applied in order to arrive at knowledge within the various sciences. Ross turns jurisprudence into a theory of legal cognition claiming that the traditional inquiries into the sources of law have neglected to ask the jurisprudential question: what is the source of knowledge that a rule is a valid legal rule? Ross’s answer is influenced by Kelsen’s approach based upon the distinction between the category of is (Sein) that is the foundation for knowledge within the natural and social sciences and the category of ought (Sollen) that is the foundation for knowledge within legal science. In the first part, Ross presents a historical overview of the doctrines of the sources of law in France, England, and Germany and find them wanting since they fail to ask the jurisprudential question. John Austin is the he only exception since he uses an a priori method to determine the concept of law in terms of commands expressing the will of the sovereign that makes it possible to account for the existence and cognition of the positive law. But Austin commits the error to conceive the will of the sovereign in empirical terms. Another error is that Austin makes room for the moral evaluation of the positive law based upon the theory of utility which Ross finds superficial and without any interest for modern lawyers. In the second part Ross presents a systematic account of the theories of legal sources and rejects sociological theories of law that determine the positive law in terms of empirical facts and natural law theories that determine the positive law in terms of moral facts. Finally, Ross considers Kelsen’s theory that determines the law in terms of a specific legal ought manifested in the validity of legal norms that in the end can be traced to the Grundnorm. In this way the positive law is located within the category of ought as a formal category and the merit of the Grundnorm is that it functions as the scheme of understanding norms as valid legal norms. But Ross objects that the Grundnorm is a needless reduplication since the validity of legal norms is grounded in the legal system itself. Ross also questions whether the category of ought is a fundamental category for cognition of the law but this does not imply that he rejects normative cognition but it is grounded in the category of totality. Ross’s jurisprudential answer is important since it provides the conceptual framework that puts the theoretical study of law on the secure path of a science as legal science (Rechtsdogmatik) that is confined to present an account of the positive law as opposed to present an interpretation and application of legal norms. Legal science is a normative science that must be kept apart from knowledge about the law in terms of sociology of law (Rechtssoziologie) and from the moral evaluation of the law that is not scientific cognition but politics (Rechtspolitik).
Ross submitted his manuscript as a doctoral dissertation at the University of Copenhagen where it was rejected by the leading professors of law in Denmark. This was a blow for Ross who got in touch with Hägerström in order to submit the manuscript as a doctoral dissertation in Uppsala. This required Ross to pass the degree of philosophy in Uppsala and he was then awarded a doctoral degree and the manuscript was finally published in 1929. Hägerström has a favourable view of Ross’s approach but also a critical stance to Ross’s adherence to Kelsen’s theory of law which Hägerström dismisses as a version of primitive positivism. Hägerström also rejects the category of ought as metaphysical nonsense and finds that Ross’s replacement with the category of totality is untenable since the only foundation for cognition is the category of reality.
2. Ross is an ambitious author, dedicated to promote a better understanding of the task and method of jurisprudence to be executed through the publication of four volumes. The first volume is Kritik der sogenannten praktischen Erkenntnis (1933), showing Hägerström’s influence. The title is, of course, an allusion to Kant’s Critique of Practical Reason but Kant’s reliance on the will as practical reason is meaningless and the idea of moral validity is an unthinkable phantom. This view is already put forward in Theorie der Rechtsquellen but is now supported by Hägerström’s philosophy. Thus Ross shifts his allegiance from Kelsen to Hägerström and sets out to demonstrate that ethical theories, whether based upon the idea of the good or the idea of duty, are rooted in metaphysical speculations that have no foundation in reality. Hägerström’s moral philosophy is a version of non-cognitivism in terms of an emotive theory that moral sentences do not express propositional attitudes of beliefs that can be true or false but are used to express emotional and conative attitudes of feelings and emotions that have a suggestive effect upon human behaviour. Hägerström’s emotive theory is endorsed by Ross, claiming that moral consciousness is not a genuine consciousness of the objectivity of facts but a composite consciousness consisting of subjective experiences of feelings in relation to situations and actions. This is the area for a new study of moral phenomena which Ross calls “ethology” concerned with the description and explanation of human behaviour motivated by different kinds of feelings. Ross endorses Hägerström’s view that legal concepts such as right and duty are rooted in magic that leads to the conclusion that these concepts do not refer to anything that can be seen or touched. It follows that the legal concepts of right and duty are not genuine concepts but only meaningless words that can be used to direct and regulate human behaviour.
The next book in the series is Virkelighed og Gyldighed i Retslæren (Reality and Validity in Jurisprudence) (1934) that deals with the assumptions of legal cognition and the analysis of fundamental legal concepts and earned Ross the doctoral degree of law in the University of Copenhagen he had longed for. It forms the basis for his later book Towards a Realistic Jurisprudence (1946) concerned with the dualism of reality and validity which implies that law is conceived as an observable phenomenon of human behaviour in the world of facts and at the same time also as a binding norm in the world of values. Based upon Hägerström’s criticism, Ross abandons his category of totality as the epistemological foundation for legal knowledge and claims that scientific knowledge of reality is based upon experience and expressed in propositions that can be true or false. In contrast to his former view, Ross now holds that legal knowledge does not present an epistemological problem since it is expressed in propositions. The jurisprudential problem is rather a problem within the knowledge of the law concerning the cognitive meaning of the legal vocabulary used in legal norms. This is the question whether legal norms express propositions which Ross denies to arrive at the view that legal norms are devoid of any conceptual content and the concept of the validity of legal norms is a meaningless word for various attitudes. This is a version of legal nihilism which implies that there can be no legal knowledge in terms of normative knowledge. This leads Ross to advance his realistic conception of the law in terms of psycho-physical phenomena based upon the view that legal norms have a suggestive meaning and are used to express ideas of right and duties to produce similar ideas as manifested in human behaviour. In this way, the law is located in reality as the area for legal science to study as a branch of sociology and psychology.
3. In articles in 1941 and 1945, Ross rejects Hägerström’s theory of knowledge as meaningless and turns his allegiance from Hägerström to logical positivism, endorsing Rudolf Carnap’s view that empirical knowledge of the world is based upon basic statements expressing elementary sensations. In another article Tu-Tu (1951) Ross takes issue with A. V. Lundstedt’s view that the concept of right cannot be used in legal science since it is a meaningless word invoking magical forces. Ross accepts that it is a meaningless word but it can be used as a technical tool to present the relations between legal facts and legal consequences. Ross’s allegiance to logical positivism is also manifested in his book Om Ret og Retfærdighed (1953) translated into English as On Law and Justice (1958) which is his most influential book. The subtitle in the Danish version is An Introduction to Analytical Jurisprudence and the book is intended as a textbook to Ross’s courses in jurisprudence. For Ross, philosophy is the logic of science and its subject the meaning of scientific language. It follows that jurisprudence is the logic of legal science concerned with the language used in the scientific study of the law as opposed to the language used within the law. With respect to the law, Ross follows Karl Olivecrona that legal norms must be conceptualized as independent imperatives, but Ross introduces the technical concept of directives which he defines as sentences devoid of any cognitive meaning but having an emotive meaning that can be used to produce a normative ideology. This is related to his view that statutory laws are not addressed to private individuals but solely to legal officials. He mentions the distinction between norms of competence and norms of conduct but the former can be reduced to norms of conduct for the legal officials, particularly the judges, about the use of force. Norms of competence that are not about the use of force, for example constitutional norms, cannot be regarded as valid legal norms. What matters is the emotive meaning of the legal vocabulary which accounts for the validity of the legal norms since the directives are operative in the minds of judges because they are felt to be socially binding and therefore obeyed. This is a social-psychological fact that is manifested in the regularity in the behaviour of judges deciding cases according to the law and constitutes the area for the scientific study. The scientific study is not expressed in directives but in propositions and what concerns Ross is not the law but the verification of propositions about the law. In this respect Ross endorses the verification principle advanced within logical positivism to arrive at the view that scientific propositions about legal norms are predictions about what the judges will do when they decide cases. In this respect, there is an affinity between Ross and the so-called American realists. Ross also calls his approach “jurisprudential realism”, adding that this is only a slogan without any informative content but it can be used to demolish “juridical idealism” that holds that in addition to empirical knowledge there is also normative knowledge of the law as manifested in Kelsen’s approach which Ross rejects. Ross’s jurisprudential realism keeps within the bounds of reality to claim that legal norms are directives devoid of cognitive meaning and this implies the rejection of legal science as normative knowledge in favour of empirical knowledge of the impact of legal norms upon human behaviour. It follows that the validity of the law cannot be conceptualized in terms of normative relations between legal norms but must be conceptualized in terms of causal relations between directives and human behaviour as manifested in the social effectiveness of legal norms. Thus legal science is reduced to be branch of sociology and psychology. Ross continues to subscribe to an emotive theory but it now supported by reference to the theory put forward by Charles Stevenson. This is important for Ross’s understanding of legal politics having the task to offer guidance to legal officials based upon a scientific basis which means that it cannot be expressed in normative propositions since they are devoid of conceptual meaning, and this implies the rejection not only of justice but also of utility as the proper standard for the making and application of legal norms. The guidance can only be expressed in empirical propositions based upon the social sciences where Ross makes a call for a scientific legal sociology. For Ross, the role of the lawyer as a legal politician is to function as a rational technologist that offers his knowledge at the disposal of the politicians in power. Ross’s understanding of legal norms as directives is also put forward in his Directives and Norms (1968) concerned with the question whether directives are subject to logic in the same way as propositions are. He also takes issue with H. L. A. Hart concerning the understanding of the concept of validity. Ross also deals with the rise of natural law theories after World War II only to reject them as metaphysical nonsense based upon his adherence to logical positivism.
4. In the 1960s, Ross turns to consider questions within the criminal law presented in articles that are collected in On Guilt, Responsibility and Punishment (1975). Considering the concepts of responsibility and guilt, Ross uses the method of linguistic philosophy used within what is called Oxford philosophy. This is a departure from his earlier view, but Ross does not apply it with respect to jurisprudential questions concerning the understanding of the concepts of legal norms and their validity.
5. Besides his jurisprudential writings, Ross produced textbooks on international law and constitutional law. Also noticeable is his book on democracy, Why Democracy (1952).
6. Ross has been influential but his approach has also been criticized for presenting a narrow view of jurisprudence due to his adherence to logical positivism which also informs his understanding of legal norms as directives devoid of conceptual meaning resulting in legal nihilism. His conceptual analysis of legal concepts presents a distorted view of the use of the legal vocabulary. Ross also contradicts himself since he does not follow his own recommended method when writing his textbooks which in effect turns legal science into legal politics. His adherence to the emotive theory has also met with critique since it implies that there can be no argumentation within morality and law but only the use of meaningless words to cause the appropriate behaviour.
Theorie der Rechtsquellen. Ein Beitrag zur Theorie des positiven Rechts auf Grundlage dogmenhistorischer Untersuchungen. Leipzig und Wien 1929.
Kritik der sogenannten praktischen Erkenntnis. Zugleich Prolegomena zu einer Kritik der Rechtswissenschaft. Kopenhagen und Leipzig 1933.
Virkelighed og Gyldighed i Retslæren. En Kritik af den teoretiske Retsvidenskabs Grundbegreber, København 1934.
On the Illusion of Consciousness. Do mental Data (Phenomena of Consciousness”) exist? Theoria 1941, pp. 171-202.
On the Logical Nature of Propositions of Value, Theoria 1945, pp. 172-210.
Towards a Realistic Jurisprudence. A Criticism of the Dualism in Law, Copnhagen 1946.
A Textbook of International Law. General Part. London 1947.
Constitution of the United Nations. Analysis of Structure and Function. Copenhagen 1950.
Why Democracy?, Cambridge Mass. 1952.
Tû-Tû, Festskrift til Henry Ussing, edt. O. A.Borum & Knud Illum, København 1951, pp. 468-484.
Om Ret og Retfærdighed. En indførelse i den analytiske retsfilosofi. København 1953.
Tû- Tû, Harvard Law Review, vol. 70, 1956-57, pp. 812-825.
On Law and Justice, transl. Margaret Dutton, London 1958.
Dansk Statsforfatningsret Bd. 1-2, København 1959-60, 2. udg. København 1966.
Validity and the Conflict between Legal Positivism and Natural Law, Revista Juridica de Buenos Aires 1961, reprinted in Normativity and Norms, edt. Stanley L. Paulson and Bonnie Litschewsski Paulson, Oxford 1998, pp. 147-163.
The United Nations. Peace and Progress, Bedminster 1966.
Directives and Norms, transl. Brian Loar, London 1968.
On Guilt, Responsibility and Punishment, London 1975.
Account and Critique of Alf Ross:
Arnholm, Carl Jacob, Some Basic Problems of Jurisprudence, Scandinavian Studies in Law, vol. 1, 1957, pp. 9-50.
Bjarup, Jes, Alf Ross, in Der Kreis um Hans Kelsen. Die Anfangsjahre der reinen Rechtslehre, Hrsg. Walter/Jabloner/Zeleny, Schriftenreihe des Hans Kelsen-Instituts Band 30, Wien 2008, pp. 409-443.
Blackshield, A. R., Pragmatism and Valid Law, Review of Alf Ross, On Law and Justice, Sydney Law Review, vol. 3, 1959-1961, pp. 492-503.
Castberg, Frede, Problems of Legal Philosophy, Oslo 1957.
Greene, Theodore M., Review of Alf Ross, Kritik der sogenannten praktischen Erkenntnis, The Philosophical Review, vol. 44, 1935, pp. 299-309.
Hart, H. L. A., Scandinavian Realism, Cambridge Law Journal 1959 pp. 233-240, reprinted in Essays in Jurisprudence and Philosophy, Oxford 1983, Ch. 6, pp. 161-169.
Hägerström, Axel, Till frågan om begreppet gällande rätt. Rec av Alf Ross, Theorie der Rechtsquellen, Tidsskrift for Retsvidenskab 1931, pp. 48-91.
Kelsen, Hans, Eine ’realistische’ und die reine Rechtslehre, Österreichische Zeitschrift für öffentliches Recht, Neue Folge Band 10, pp. 1-25.
Lauridsen, Preben Stuer, On a Fundamental Problem in the Legal Theory of Prediction, Scandinavian Studies in Law, vol. 20, 1976, pp. 179-204.
Munzer, Stephen, Legal Validity, The Hague 1972.
Redmount, Robert S., Psychological View in Jurisprudential Theories, University of Pennsylvania Law review, vol. 107, 1958-59, pp. 472-513.
Simpson, A. W. B, The Analysis of Legal Concepts, Law Quarterly Review, vol. 80 1964, pp. 535-558.
Stone, Julius, ‘Social Engineers’ and ‘Rational Technologists’. Review of Alf Ross, On Law and Justice, Stanford Law Review, vol. 13, 1960-61, pp. 670-696.
Symposium on Alf Ross and International Law, European Journal of International Law, vol. 14, 2003, pp. 653-841.
Binding force of law, Cognitivism/non-cognitivism, Efficiency, Hägerström, Axel, Legal positivism, Lundstedt, Anders Vilhelm, Natural law, Olivecrona, Karl, Scandinavian Legal Realism.