Realism vs Idealism. Ross and Castberg. Paths of a dispute upon Law and human rights
| Autor | Alessandro Serpe |
| Cargo | University of Naples Federico II Naples - Italy alserpe@yahoo.it |
| Páginas | 126-154 |
"If we wish lo engage in seeking an answer lo the question of what is right Law, we cannot get past the demand for justice and consequently the problem of freedom of will" Frede Castberg, Problems of Legal Philosophy, London, 1947, p. 101.
Page 126
In 1941, on 'Tidsskrift for Rettsvitenskap', the Swedish Ivar Strahl published his article titled Idealism och Realism i Rettsvitenskapen (Strahl, 1941:302-330). For the very first time the terms "Realism" and "Idealism" were used to indicate the two main Nordic legal philosophical movements Page 127 starting from the 30's (Eckhoff, 1953: 87). Two poles: Realism on one hand, not 0rsted's and Schweigaard's Realism 1 but Hágerstróm's Realism with important implications in Olivecrona's and Lundstedt's thoughts; on the other hand a normative Idealism upheld by the Norwegian legal philosopher Frede Castberg.
An attempt to classify the main characteristics of the two currents could seem arbitrary and limited. This was also the viewpoint of Torstein Eckhoff, Norwegian legal philosopher 2. Though different from an epistemological point of view among the supporters of the same movement, some divergences could arise whereas there might be similarities among the supporters of different schools of thought (Castberg, 1953: 87). It can be undoubtedly asserted that realists considered Law as part of a sensitive reality where actions, words, thoughts could be investigated and described as psychological and sociological facts. In other words realists would never provide explanations concerning legal phenomena by adopting methods going beyond what is perceivable through the senses (Ibid: 37). A remarkable idealistic characteristic is indeed to relate to two different worlds: a "real world"(en virkelighetens verden) and a "validity world"(en gyldighetens verden). Law belongs to both worlds at the same time. The methods can be the same as those adopted by Psychology and Sociology but they are not enough to provide ontological answers. Idealists maintain that there is always something which goes beyond the reality of the external world namely validity. What do idealist mean with the "validity of Law"? To assert that Law belongs to the world of validity perhaps means that it is not a sufficient reason for formulating psychological assumptions concerning what crosses the jurists' minds when they think, speak or write? Or does it mean that psychological and sociological methods are inadequate? Eckhoff questioned. Idealists were not the only ones who seemed to base their assumptions on postulates but also realists such as Strahl and Ross did the same thing: the idea of chess and bridge rules and the idea of a system of rules as a "whole" clearly proves an argumentation grounded on postulates. It follows that every discussion concerning their validity can not be scientifically demonstrated (Ibid: 38-41). Many divergences between realists and idealists are also connected with "the use of language". In this respect Eckhoff prefers a realistic language as it eliminates magical or religious legal representations and it better demonstrates that the object of cognition exists Page 128 independently of perception and finally that the external world is not a "prestructured" entity (Jorgensen, 1939: 31).
Frede Castberg also emphasized other points which differentiate Realism from Idealism. Castberg wrote a realist would assert that normative propositions containing words such as "shall", "ought to", "obliged to" cannot lead to logical conclusions thus legal science propositions are not normative but indicative. An idealist would on the contrary assert that, through logical operations, one may reach logical conclusions (Castberg, 1953: 87). For instance: "Theft is punished with three years of prison" (main premise); "This action is a theft" (minor premise); "This action will be punished up to three years ofprison" (conclusion). A realist would attribute validity to a legal system only if "observed in fact"; an idealist, on the contrary, identifies legal validity with moral validity by maintaining that no moral obligation exists in order to demand respect for Law, but the acceptance of the legal system does not seem to provide a satisfactory answer. It's significant to assert, indeed, that legal norms are valid on the assumption that higher norms (Constitution and customs) are valid. In his works Castberg wrote that a realist considers it the role of legal science to predict the Courts behaviour and to indicate, through technological means the necessary tools to fulfil legislative goals. Instead, idealists declare that scientists after accepting the internal objectives of legislation should tell the Courts how they should actually judge. There is also a divergence of the two concepts in the legal-semantic field. Realism asserts that representations on "just", "just Law" are nothing but "expressions of subjective feelings, affections, wishes" (Ibid: 87-89). Idealism, on the other hand, even presuming that these representations are metaphysical, cannot but assume that something is objectively "right" in conformity with the evaluations of social interest. Castberg kept his distance from concepts which claimed that legal terms were the product of "supernatural powers" and considered them shallow and provoking. He wrote that realists only misinterpret their opponents when classifying them as creators of magical representations (Castberg, 1955: 400).
Although Castberg's position was doomed to be isolated in Scandinavia from the very start it nevertheless contributed to animate the debate centred on Nordic and Scandinavian Realism (Serpe, 2007: 99-112). It represented a sort of voice of disagreement within the Nordic legal-philosophical scenario. Castberg was defined "a lonely swallow" (en enslig svale) Page 129 flying against the wind and meeting on his journey realists and non-empiricists who disagreed to his programme of "modern" Natural Law. Castberg's figure (1893-1977) had been dominating Constitutional Law, International Law and human rights fields for years whereas his contributions regarding legal-philosophy were considered unprofessional. He was a politician and Professor in Law at the University of Oslo for about thirty-five years: his works exerted a remarkable influence over the local and international environment: in Paris, Uppsala, Hensingfors and Minnesota with special concern to the Public Law. It is important to remember his Norges Statsforfatning was for decades adopted as the handbook for Norwegian students and source of information for lawyers and constitutionalists. Legal advisor at The Ministry of Foreign Affairs and later Secretary (1921) in the same year he became Assistant-Professor; from 1952 to 1957 he was Rector of the University of Oslo (Andenaes, 1963: 1-9).
As a young boy Castberg was fascinated by legal and methodological issues which was unusual for Norwegian lawyers. In 1936, during a celebration of the academic year in his opening remarks he complained that there was a lack of research in legal philosophy in Norway. Only faint waves of legal-philosophy from Denmark and Sweden began crashing the Norwegian coasts at the end of the 19th century (Ibid:: 4). Perhaps Castberg's contributions cannot be said neither original or innovative but for certain they were attempts aimed at involving the Norwegian legal-philosophical environment ofthat time.
Castberg occupied himself with issues concerning the notion of Law: is it - Castberg wondered - a notion to which men gave life to by observing the external world or is it present in our minds independently from the experience? Even if the psycho-physical reality were taken as a departure point, it would not refer to the "system of understanding" reality, but to the world of ideas (Castberg, 1947: 22). The step from psycho-physical realities (i.e. statutes, sense of observance) to the acceptance of a binding norm always implies an apriori element. The validity of a norm cannot be observed empirically therefore reference is unavoidable. Law cannot be taken into account "except by means of the postulates of validity": form the validity of the Constitution, customs and a set of legal principles the validity of the individual legal norms derives. "The idea of validity is the a priori element ofthe notion ofLaw" (Ibid: 22-23) it is important...
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