Royal Institute of Philosophy

Review
Reviewed Work(s): Inquiries into the Nature of Law and Morals by Axel Hägerström, Karl
Olivecrona and C. D. Broad
Review by: H. L. A. Hart
Source: Philosophy, Vol. 30, No. 115 (Oct., 1955), pp. 369-373
Published by: Cambridge University Press on behalf of Royal Institute of Philosophy
Stable URL: http://www.jstor.org/stable/3748782
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 NEW BOOKS

special significance by baptizing the meaning they would normally have for
us into the interplay of the main notions of Heidegger's system. The result of
this is that the reader is often left to wonder whether the involved hyphenated
entities which play their strange role in Heidegger's philosophy have any
meaning or any revelance to life as we know it. But I do not think we should
leave the matter there. For there runs through the philosophies of Kierkegaard
and Heidegger alike a shrewd appreciation of the special idiom needed to
speak of the 'transcendent' in its relation to finite existence and the extremely
elusive character of the former (almost concealed in the finite experience
which embodies it), together with a discerning appreciation of the closeness of
the problems which arise in such contexts to the problem of self-identity and
the nature of personality. If we read the work of such thinkers, intent upon
learning from their insight into these particular matters rather than with the
expectation of making their work formally intelligible, we shall do them much
better justice and exorcise the baneful ghost of extreme abstractionism by
which their thinking, and consequently much of the general religious thinking
of to-day, has been distressingly bedevilled. To do this we must have as clear
a notion as we can of the way they themselves understand their own philo-
sophical position; and it is here that we are especially indebted to expositors
like Dr. Wyschogrod who manages to display, for anyone who is prepared to
take pains, the intricacies of two exceptionally involved and abstract philo-
sophical systems within a very brief compass. It is unfortunate that his
laudable precision of style has sometimes led him to barbarous lapses such as
the reference to something (in man) which "protests changeability"; there
are also several misprints, the spelling of Sein und Zeit in two places on page
58 for example, and there are some sentences which need much better punctua-
tion (e.g. line 5, page 59). In a very short work which is already bound to be
very difficult for the reader, there should have been much greater care in
correcting the final version; the use of indentation to do duty for inverted
commas can also be rather tiresome. But this does not much diminish our sense
of gratitude for this book. The study of it, and of the penetrating biography
which Dr. Croxall has made available to us, will help us to a better under-
standing than Kierkegaard himself achieved of the true 'inwardness' of religion,
the discernment of which makes Kierkegaard so much our contemporary in
an age of inevitable sophistication.
H. D. LEWIS.

inquiries into the Nature of Law and Morals. By AXEL HXGERSTROM. Edited by
KARL OLIVECRONA. Translated by C. D. BROAD. (Stockholm, Almquist
and Wiksell. Pp. xxxi + 377. Price Sw. cr. 25.00.)
Praeterea censeo metaphysicam esse delendam. Under the inspiration of this
typically polemical motto Hagerstrom devoted his great energies and ability
to the analysis of fundamental legal and moral notions and to the identification
of "magical", "mystical" and "supernatural" elements which he believed were
built into their structure and gave the legal and moral terminology of rights,
duties and obligations its specific and peculiar force. Hagerstr6m worked in
many fields besides the philosophy of law and morals, first as assistant professor
and later as professor of philosophy at Uppsala from i893-I933; his great work
was two volumes on the Roman idea of obligation (Der ramische Obligations-
begriff im Lichte der allgemeinen romischen Rechtsanschauung). Unfortunately
this serious and scholarly work failed to attract the attention of experts, partly
because of its obscurity but mainly because of the apparent extravagance or
incoherence of Hagerstrbm's claim that fundamental institutions of Roman

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 P H I L O S O P H Y

law like the mancipatio (the formal conveyance of property), stipulatio (the
formal verbal contract) and the magistrates jus were "magical" notions in the
sense that they depended on a system of beliefs that desired effects (e.g.
transfers of rights) could be brought about by the use of formal or ceremonial
words. In fact the use of language embodying the features which Hagerstrdm
explained as "magical" is an inseparable part of all legal systems and indeed
permeates ordinary non-technical language at many points. It was I think
doubly unfortunate that Hagerstr6m described this use of language as
"magical", not only because it retains sense and importance quite independ-
ently of any beliefs in an invisible world of gods or other entities whose powers
may be invoked by words, but because the treatment of such language as
"magical" and the conclusion that Hagerstr6m drew that rights and duties
were "imaginary objects" as unreal as ghosts or Roman gods, really prevented
him from going further into the analysis of the exact function and manner of
operation of the terminology in question. Though Hagerstr6m's main published
work failed to attract the attention it deserved, his influence in Scandinavia
has been very great and is visible in many contemporary Scandinavian writers
on legal and moral philosophy (Olivecrona, Alf Ross, Wedberg) and also in the
stimulating journal Theoria. The present selection of essays were written
between i9ii and I939 and contain some of Hagerstr6m's most important
reflections on the nature of law and morals. They have been translated by
Professor Broad from a most difficult philosophical Swedish, made unusually
obscure by German influences, and though the essays remain often extremely
difficult to follow, it is plain that the translator has endowed them with the
maximum of lucidity compatible with a faithful translation. Since Professor
Broad has already given a luminous exposition of Hdgerstr6m's analysis of
moral notions and of the concept of intention (in Philosophy, 195I, p. 99) I
shall confine myself in what follows to Hagerstr6m's principal contribution to
the philosophy of law.
The phenomenon on which Hagerstr6m's attention was almost obsessively
fixed and to which he rightly thought the conventional analysis of legal terms
failed to do justice, may be illustrated from one of the simplest operations
known to the law, viz., the transfer of ownership in a tangible thing from one
person to another. In ancient Rome this took the form of the mancipatio
ceremony; in this the buyer, gripping the thing sold (e.g. a slave) threw a piece
of copper into a scale and said "I proclaim that this is mine and that he has
been bought by me through this piece of copper." When the seller took the
piece of copper the buyer became the owner of the slave. Two related questions
forced themselves on Hagerstr6m: (i) What was the logical status of the
formula quoted? (2) What was the dominium transferred by the mancipatio?
Plainly the formula was not used to make a statement of fact; for so regarded
what it proclaims is false at the moment when it is spoken. So its function is
not to report facts but to establish in the person of the buyer dominium over
the slave. But how can words have such effects? Hagerstr6m's solution was to
insist on the difference between the nature of the right of dominium and any
actual physical power. Of course in most, but not all, cases a person who has
the right of ownership will also in fact obtain, with the assistance of the courts
or other officials, the use of coercive power, e.g. to exclude others from the
property owned. But this is only so because of the general respect for law
which includes a belief in the efficacy of just such an operation as the
mancipatio ceremony. Furthermore all legal thinking would distinguish
between the right and the use of coercive power, treating the possession of the
right as a justification for the exercise of the power, and so as something quite
distinct from it. What then is dominium if it is not an actual power? Hager-

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str6m's answer was (and he gave the same answer in the case of all rights and
duties, moral and legal) that it is nothing real at all: no facts "correspond" to
it; it is a supernatural power belief in which is embodied in all legal and moral
thinking and which legal ceremonies or formal legal language are conceived of
as liberating. This is why, according to Hagerstr6m, there can be no reduction
of legal relationships to factual relationships and any analysis which seeks to
discover facts "corresponding to these supposed mysterious forces" must land
in hopeless difficulties.
It is plain that modern legal institutions afford just as much and just as
little evidence of belief in a supernatural world of legal rights and duties and
in a magical efficacy of words to bring about changes in that world. An English
lease or conveyance contains as its most important part certain words which
English lawyers are accustomed to call operative words to distinguish them from
the merely descriptive words which recount who the parties are and what the
property concerned is. "X hereby grants and conveys unto Y all that estate
and property known as Blackacre." It is quite true that these words are both
sufficient and necessary in the circumstances in which they are written to make
Y owner of the property which belonged to X immediately before the execution
of the document containing them; it is also true that the function of these
words is not to report any fact, and again true that the rights which X had and
are now transferred to Y are not to be identified with the physical power to
exclude others from the property in question. In a long and penetrating
analysis of the language used in the formation of contracts where one party
makes an offer and the other accepts it, or in legal instruments disposing of
property, like a will, Hdgerstr6m shows the mistakes involved in treating the
language used here either as (i) a declaration or description of the speaker's
intention to bring about a change in his legal rights or duties, or (2) a report or
prediction of any factual state of affairs. His criticism of the interpretation of
an offer or a disposition in a will as literally a description of the speaker's inten-
tion is ingenious and instructive. The words used cannot be such a description
of intention for the intention in question is to bring about a change in the legal
situation by the use of these words, and no declaration or description of an
intention can be the content of the intention which is declared or described.
But Hagerstrbm's positive analysis of the use of language involved in these
transactions is extraordinarily complex, and I think fails to characterize the
specific function of this use of language. He says that in what is miscalled a
"declaration of intention," e.g. an offer or testamentary disposition, the follow-
ing factors are involved.

(I) The words give expression to an imaginative idea of certain rights and
duties, e.g. in the case of a contract the idea of a seller's duty to deliver and
the buyer's right to demand delivery.
(2) The words are used imperatively for the speaker means that the rights
and duties shall come into being.
(3) The use of the words is accompanied by a belief that a certain factual
situation will probably come into existence in accordance with the imagined
rights and duties.
(4) This actual state of affairs is conceived of as a consequence of the
existence of rights and duties which are themselves supernatural objects.
(5) The parties recognize that the extent to which such "declarations of
intention" will be legally efficacious is determined by legal or customary
rules.

The most curious thing about this complex analysis of legal language in-
volved in the making of a contract or a will is that the most important feature,

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 P H I L O S O P H Y

i.e. that there should be legal or customary rules regulating its efficacy are
treated as something relatively external or separate from the meaning of these
legal forms. In fact the characteristic use of legal formulae can only be under-
stood if it is considered in conjunction with those rules which it is their function
to apply or invoke or operate in diverse ways. A mancipatio or a conveyance
containing the formula "X hereby conveys Blackacre to Y" has the meaning
it does have, not because it "expresses in imperative form an imaginative idea
concerning the coming into being of certain rights and duties", but because the
formula is uttered or written under certain circumstances included in which is
the existence of a legal system containing rules which provide that if just these
words are used then certain legal consequences shall follow. In other words, the
rules not merely account for the legal efficacy of the words, but show what their
function or, in a wide sense, their meaning is.
Hagerstrdm deserves great credit for his insistence that there is something
in the use of the indicative form of language in legal statements of rights or
duties which is different from what he called a judgement or "awareness of
reality", i.e. a statement of fact. His criticisms of the attempts to reduce such
legal statements or formulae to statements of fact is often marvellously acute
and revealing, but he failed to take seriously enough the radical differences
between statements of law which operate within a system of rules and a state-
ment of fact. For his reason for calling rights and duties fictions or super-
natural or mythical objects is simply that there is no fact which can be simply
correlated with them and therefore their difference from ordinary statements of
fact is simply that they depend upon an illusion. They are in Hagerstrdm's
view successful statements of fact.
Apart from these investigations into the character of fundamental legal
concepts the present volume consists chiefly of a valuable criticism of the
"will theory" of law, i.e. the definitions of law as a command of a person or
persons who holds the supreme power in a community, such as are found in
Austin and continental legal positivists. Hagerstr6m considers many variants
of this theory; some of his criticisms resemble those made by Bryce and Kelsen
(who is the subject of an interesting but perhaps slightly unfair study in the
present volume). There is, however, a most original examination of the
character of those fundamental constitutional rules to be found in every legal
system which specify the legislative organ and what must be done if valid
enactments are to be made by it. Hagerstr6m shows that the terminology of
will or command used by legal positivists leads to neglect of the special
character of such fundamental or basic rules; either the legal positivists will
treat the commands of the persons having the de facto power as law and so will
neglect the fact that in any but the most extreme despotism such commands
will only rank as laws if they comply with antecedent constitutional rules as to
the manner and method of enactment; alternatively recognizing the import-
ance of these fundamental constitutional rules the legal positivist falsifies their
character by treating them as commands or "expressions of the will" of members
of the community. But no one has ever willed or commanded that what the
King in Parliament enacts shall be law; it is a rule (of course much vaguer than
this verbal formulation suggests) which has come to be accepted and rests on a
whole mass of heterogeneous factors such as tradition, inertia, patriotism, fear.
To compare fundamental rules of this kind to commands or acts of the will is,
an "anthropomorphization" and is as absurd as supposing "that a moral
climate depends on a popular resolution to maintain it". This is a real con-
tribution to the elucidation of the feature which Kelsen considered was at
the root of all legal systems and which he termed the grundnorm.
Higerstr6m includes in his criticism of the will or command theory an

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 NEW BOOKS

interesting study of the judicial interpretation of statutes. This he uses to show

that even where the analogy of a command is most appropiate, i.e. in the case
of those laws which are the enactments of definite persons, there are still very
great differences. He adds also a criticism which I do not fully understand
when he says that the bare fact that we speak of legal rights arising from legis-
lation not only shows that laws are not commands but shows that natural law
or moral notions must enter into a legal system contrary to the legal positi-
vist's theory. Legal rights are surely different from moral rights even if (a) the
"content" may be the same (there may be both a moral and a legal right of
self-defence) and (b) they share certain characteristics which lead us to describe
both as rights. There is a similar perplexing argument advanced against Kelsen
that the bare use in legal contexts of the word "ought" ("the judge ought to
have acted on or applied this rule") also shows that natural law notions have
entered into legal system. But the whole work, in spite of some obscurities and
some intemperance of language, is unmistakably stamped with great origin-
ality and contains many speculations of importance in addition to those that
I have mentioned. H. L. A. HART.

DANTE. Monarchy and Three Political Letters. With an Introduction by

DONALD NICHOLL, and a Note on the Chronology of Dante's Political
Works by COLIN HARDIE. ("Library of Ideas," Weidenfeld and Nicolson:
London, 1954.)

A new translation of Dante's Monarchy and Political Letters cannot but

be warmly welcomed by students of political theory and of Dante alike, the
more so when, as is the case with this little volume from the "Library of
Ideas," it is accompanied with such indications as enable the reader to see
them in the right perspective. There may be some overstatement in the
editor's claim that Dante's Monarchy is "one of the few outstanding works
of medieval political thought"; but there is no denying that no study of
Dante is complete that does not take into account "the workings of a great
mind at the very moment it becomes seized of a great ideal." Here, in a small
compass and in readable English, is all the evidence necessary (with the
exception of the important chapters in Convivio IV) for the assessment of
a particular phase in Dante's spiritual development, which was also a turning
point in European history. Mr. Nicholl makes no secret that to later genera-
tions Dante's political treatise appeared as nothing more than a dream. "We
can now see that both the facts and the opinions of the late thirteenth century
were heavily weighted against the Empire and in favour of national
monarchies." But this does not diminish the importance, even to the present
day, of the Monarchy as "a contribution of a mind of genius to the perennial
problem of a universal authority." The modern reader can now judge for
himself the curious "working" of that mind, the strange paradoxes of the
scholastic method setting out to prove by deduction from first principles what,
if anything, would nowadays seem to have to be proved by experience and
expediency.
As far as the study of Dante himself is concerned, a further merit of this
volume is the inclusion of the so-called "political letters" (Epp. V, VI
and VII), the tracts which Dante wrote in I3WI-I I on the occasion of
Henry VII's descent into Italy. Mr. Colin Hardie, one of the few Dante
scholars to combine extensive knowledge of the classics with an assiduous
reading of the poet, has contributed a concise, but extremely important
"Note on the Chronology of Dante's Political Works." Starting from the
close connection between the Monarchy and the Letters, Mr. Hardie sheds

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