“Present and Operative in a Uniform Way Within the Minds of Judges”: Outline of a Scandinavian Realist Theory of Legal Precedent

This contribution aims to outline the fundamental features of a Scandinavian realist theory of precedent. Recent years have witnessed a renewed interest in the characteristic Nordic strand of realist legal philosophy, and of the Danish representative Alf Ross in particular as evidenced by the publication of a new and the first full English translation of Ross’s main work On Law and Justice (original Danish edition, Om ret og retfærdighed, 1953) on Oxford University Press in 2019. Particularly conducive has been the dismantling of HLA. Hart’s highly influential yet essentially misguided critique of Ross’s theory – and of Scandinavian realism as such. As a result, contemporary attention has focused in particular on the sophisticated norm-descriptive conception of legal validity of Scandinavian realism; a conception, which especially in Ross’s work combines full appreciation of the distinction between internal and external aspects of legal rules with a consistently empirical outlook. In this process, however, less attention has been payed to working out the implications of this general outlook on a number of more detailed issues. The theory of precedent is one such issue.
This contribution addresses this lacuna and works out what Ross’s distinctive norm-descriptive conception of legal validity means for a philosophical theory of precedent. The approach of the chapter is mainly exegetic, aiming to identify and sort out the key features of Ross’s theory of precedent on its own terms. However, the contribution involves an element of rational reconstruction in so far that it also aims to align the theory thus developed with contemporary discussions, especially about philosophical naturalism in relation to both Scandinavian and American realism.
There are two sides to a Scandinavian realist theory of precedent, one negative or critical and the other positive or constructive. The negative side involves an outline of the rule-scepticism underlying this approach. The positive side involves an outline of the constructive part of a Scandinavian realist theory of precedent. This is constituted by a moderate replacement theory of precedent.