Chapter 12 Chapter 8 Sociological Jurisprudence and Legal Realism

We have pointed out earlier that positivism in jurisprudence not only takes an analytical form but also takes a sociological one.The theory of Austrian sociologist Ludwig Gumplowicz (1838-1909 AD) provides us with an example of explaining law from the perspective of sociological positivism.Positivism believes that law is essentially the exercise of state power, and Gumplovich constructs a sociological basis for this theory.He pointed out that the main dynamic of history is the struggle of different races for power and supremacy.In this struggle the stronger race subjugates the weaker race and establishes an organization for the consolidation and maintenance of its domination. This organization is the state, and the law is one of the chief instruments for the attainment of the goals of the government .Gumplovic argues that law is a form of social life that emerges from conflicts between different social groups with different forces.The purpose of law is to establish and maintain the domination of the strong over the weak through the exercise of state power.According to Gumplovic, law is guided by the maintenance and consolidation of political, social, and economic inequalities.Any law is a manifestation of inequality.In this regard, law is the true reflection of state power, whose sole purpose is to regulate the peaceful coexistence of unequal racial and social groups through the domination of the stronger over the weaker.Without a state, there would be no law, because law is essentially the exercise of state power.Gumplovich said that concepts such as "natural law" and "inalienable rights" are absurd products of pure imagination, just as meaningless as concepts such as "reason" and "free will."The assumption that law is concerned with creating liberty and equality among men is a manifestation of spiritual fantasy.On the contrary, the law "is, in the general sense, extremely opposed to liberty and equality, and from the essence of the law, it must be so."

However, Gumplovich does not believe that the relationship between the ruling group and the ruled group within the state is static throughout social life.He pointed out that it has often happened in human history that classes and groups that do not enjoy political, social and economic power tend to fight for emancipation.In this kind of struggle, the oppressed class takes the ideal legal thought as an important weapon to fight for more freedom and equality.This weapon is forged by the ruling class, but the ruled class often uses it to oppose and destroy the rule of the ruling class.For example, in its struggle against the feudal class, the bourgeoisie appealed to universal notions of human rights, liberty, and equality.A similar ideology is now being used by the working class in its struggle to expand rights and increase economic power.Gumplovich emphasized that the ruled classes tended to achieve some success in their struggle for emancipation, but their ultimate goal of full freedom and complete equality was never realized.

The pioneer of German legal sociology was Max Weber (Max Weber, AD 1864-l920).His excellent research in this area touches too many issues to be easily generalized.One of his most important contributions to legal theory is his elaboration of the distinction between rational and irrational approaches to legislation and his exhaustive analysis of both approaches from historical and sociological perspectives. German jurist Joseph Kohler (1849-1919 AD) put forward another legal theory, which contains sociological elements, but can also be considered as an attempt to restore some of Hegel’s thought effort.Kohler pointed out that human activity is cultural activity, so the task of human beings is to "create and develop culture, acquire eternal cultural value, and then produce many new forms, and these forms will be related to God's creation as a secondary creation. things juxtaposed".He pointed out that law plays an important role in the evolution of human cultural life by ensuring that existing values ​​are protected and new values ​​are promoted.Kohler says that every form of civilization must discover the laws that best suit its intentions and purposes.There are no eternal laws, because the laws that are appropriate to one period are not appropriate to another.Laws must adapt to the changing conditions of civilization, and it is the duty of society to continually formulate laws adapted to new circumstances.

Kohler advocated that in the control of law, individualism should be integrated and harmonious with collectivism.He pointed out that self-interest "can stimulate people's enthusiasm, inspire people to make continuous efforts, improve people's intellect, and induce people to incessantly seek new resources".A legal system would be foolish if it tried to eradicate or oppose egoism.On the other hand, he pointed out that social cohesion is equally necessary in order to keep human society from disintegrating into individual fragments and in order for society not to lose control over its members.He believed that no great cause could be accomplished except through earnest and cooperative efforts. "Individuals should develop themselves independently, but they should not lose the great benefits of collectivism."

When Kohler's legal philosophy fluctuated between sociological jurisprudence and legal idealism, the Austrian thinker Eugen Ehrlich (1862-1922 AD) proposed a thorough sociological legal theory.In Northrop's words, true sociological jurisprudence holds that "positive law cannot be understood apart from the social norms of 'living law'".According to Ehrlich, "living law" is "the internal order of the association", that is, the law practiced by society as opposed to the law enforced by the state.He regards living law as the law governing social life, even if it is not included in legal propositions. "Now, as at any other time, the center of gravity of legal development lies neither in legislation, nor in legal science and judicial decision, but in society itself."

According to Ehrlich, court trials are an exceptional case compared with the countless contracts and transactions that are accomplished in everyday social life.In real life, only a small number of disputes are referred to persons with judicial authority for resolution.To study living law, one must study marriage contracts, leases, sales contracts, wills, the actual system of succession, partnership clauses, and company regulations. Ehrlich compares the "norms of decision" developed to adjudicate disputes with those "norms of organization" that arise in society and determine the actual behavior of ordinary people.A man, he says, finds himself in innumerable legal relations, and, with some exceptions, he is perfectly willing to fulfill the obligations which these relations place upon him.A man fulfills the duties of father and son, husband and wife, pays off debts, delivers what has been sold, and does what he is due to his employer.Ehrlich argues that, generally speaking, it is not the threat of state coercion that compels a person to perform the above obligations.A person's behavior is often determined by many different motives: if he doesn't, he might get into an argument with a relative, lose a customer, be fired, or get a bad reputation for being dishonest or irresponsible.The fulfillment of legal obligations is not so much a matter of conscious thought as of an unconscious habituation to the emotions and thoughts of those around us. "The most important norms work only by association. They reach men in the form of commands or prohibitions. These important norms are presented to men without a statement of the reasons on which they are founded, nor are they obeyed. It needs to be thought through."Thus, Ehrlich's legal theory has a psychological element; he thinks that custom has a very important weight in legal life.

The Russian legal philosopher Leon Petrazycki (1867-1931 AD) elaborated on the psychological aspects of law in more detail.He believed that legal phenomena consisted of unique psychological processes that could be observed only through the use of introspective methods. "In everyday life we ​​think that we ourselves and others have a right to conduct and act according to it, not at all because it is stated in a code or anything like that, but simply because we are convinced that it should be ".Piedrzycki put forward a theory of "intuitive law", which holds that personal legal awareness and inner human experience play an important role in explaining legal and social phenomena.Piedrzycki also provides a very interesting analysis of the relationship between law and morality, which we will discuss in other chapters.

The jurisprudence of interests is a legal theory movement that emerged in continental Europe. It is the result of sociological jurisprudence and has been supported and followed by many people, especially in Germany and France.In Germany, Philipp Heck started the movement, while Heinrich Stoll, Rudolf Muller-Erzbach and others Commentators further promoted the development of this movement.The Jurisprudence of Interest was born in opposition to the conceptualism and formalism that had dominated German legal thought during the last century and the turn of the present century.Conceptualistic jurisprudence proceeds from the assumption that positive legal institutions are "flawless" and that correct judgments can therefore be drawn from existing positive legal institutions with proper logical analysis.

Heck and his followers challenged this argument of conceptual jurists.They believe that this view of conceptual jurisprudence is illusory and inconsistent with the facts.They pointed out that any real legal system is necessarily incomplete and flawed, and according to the process of logical reasoning, it is not always possible to draw satisfactory judgments from existing legal norms. The method of judicial trial proposed by interest law is based on the premise that legal norms constitute the principles and principles formulated by legislators to resolve various conflicts of interest.In this sense, we must regard legal norms as value judgments, that is, "the belief that the interests of one of conflicting social groups should take precedence over the interests of the other, or that the interests of both conflicting should be subordinated to the interests of third parties or the interests of society as a whole".In order to make a just decision, a judge must establish the interests that the legislator intends to protect by passing a particular rule of law.Among conflicting interests, the interest that the law tends to protect should be considered as the priority interest.Thus, Heck and his followers trumpeted the dependence of judges on statutes and statutes.They refuse to provide judges with any standard of value not provided by positive law, and they do not tell judges what to do even when the legal system as a whole provides no basis for resolving conflicts of interest.

In France, Francois Geny (1861-1944 AD) was an advocate of a legal methodology system.His system has much in common with the jurisprudence of interests.He pointed out in a famous monograph that the formal sources of law cannot cover all areas of judicial activities.He argues that there will always be some area at the discretion of the judge in which the judge must exercise his creativity and agency.Genney pointed out that this discretionary power should not be exercised according to the judge's uncontrolled and uncontrolled personal feelings, but should be exercised according to objective principles.Judges should strive to satisfy the wishes of the parties to the greatest possible extent within the scope of the general purpose of society.The way to achieve this task should be "to recognize the interests involved, to evaluate the respective weights of these interests, to weigh them on the scales of justice, so as to ensure the priority of the most important interests among them according to some social standards, and finally to achieve the most desirable balance".

According to Genney, in order to achieve a proper balance of interests, judges must carefully consider the prevailing moral sentiments and explore the socioeconomic conditions of the time and place.The judge should respect as far as possible the free will of the parties—as expressed in contracts, wills, and other transactions—but he should take care that this free will of the parties does not conflict with fundamental principles of public order. The free-law movement originated in Germany at the beginning of the 20th century.Proponents of the movement advocated a more radical approach to jurisprudence than interest jurisprudence and Genney's theory.The pioneers of this movement were Ernst Fuchs (1859-1929 AD) and Hermann Kantorowicz (1877-1940 AD).The free law movement emphasized the intuitive and emotional elements of the trial process and asked judges to discover the law in terms of justice and equity.Free law jurists did not want to relieve judges of their general duty of fidelity to statutes.However, when the positive law is unclear or ambiguous, or when it is impossible for contemporary legislators to try a case as required by statutes, then the judge should try the case according to the prevailing concept of justice; If the dominant concept of justice cannot be determined, judges should make judgments based on their personal subjective legal awareness.Representatives of the interest law school expressed strong dissatisfaction with such a broad judicial discretion advocated by the advocates of the free law movement. In his treatise "The Moral Philosopher and the Moral Life", the American philosopher William James attempted to determine the essence of the ethical "good".In the course of his argument, he came to the following conclusion, "In seeking a general principle, we will inevitably be led to such a most general principle-that is, the essence of goodness is to satisfy requirements." He believes that all The requirements are actually worthy of respect.The ideal world is one in which every request can be satisfied as soon as possible after it is made.However, because of the fact that there is always a distance between ideal and reality, he poses the question, "Isn't the guiding principle of ethical philosophy (since in this poor world it is impossible to satisfy all demands at the same time) not Are you ready to do our best to accommodate the request?" The founder of American sociological jurisprudence, Roscoe Pound (Roscoe Pound, 1870-1964 A.D.), was deeply influenced by James' pragmatism philosophy, although in his later works we can find his idealism towards natural law philosophy. some sympathy.We can find his basic views on law in his Introduction to the Philosophy of Law, where he states succinctly and brilliantly: In order to understand the law of the moment, I am content with a picture of what people want as much as possible at the least cost.I would like to think of law as a social institution which, at the least possible cost, is capable of satisfying people's needs or fulfilling their wants by arranging their behavior through a politically organized society. Social institutions that best meet the needs of society—that is, the demands, needs, and expectations that arise from the life of a civilized society.For the purpose of understanding law, I am delighted to find in the history of law a record of its expanding recognition and satisfaction of human wants, wants, and desires through means of social control; Broad and effective protection; more thorough and effective efforts to eradicate waste and prevent conflicts over the enjoyment of life—in short, an increasingly effective piece of social engineering. Unlike Kant and Spencer, Pound thought of legal ends not primarily in terms of maximizing self-preservation, but primarily in terms of maximizing satisfaction of needs.He points out that the history of law in the nineteenth century is largely a record of the growing recognition of individual rights, which are often regarded as "natural" (or innate) and absolute rights.In the twentieth century, he suggested, legal history should be rewritten by developments in the broader recognition of human needs, demands, and social interests. In his ambitious project, Pound categorized the interests that a legal order was supposed to protect.He divided interests into individual interests (individual interests: "claims, demands, or desires directly related to and in the name of personal life"), public interests ("involved in the political organization of social life and in the name of political organization Claims, demands or desires made in the name of society") and social interests ("claims, demands or desires concerning and in the name of the social life of a civilized society").In this last group of interests he included, among other things, general security interests, interests in personal life, interests in the protection of morals, interests in the protection of society's resources (natural and human), and aspects of economic, political and cultural progress. interests are included. Pound declined to comment on the strict criteria by which such interests would be assessed.He argues that some interests may be prioritized in one period and others in another. "I think that what the jurist must do is to recognize the problem and to realize that it is posed to him in such a way as to protect as far as possible all the interests of society and to maintain a balance between these interests and some balance or coordination consistent with the protection of all these interests".This presents the jurist with an uncertain task.But according to Pound, jurisprudence cannot provide jurists with a more absolute and reliable standard than this. Pound pointed out that there can be justice with law or justice without law.Jurisprudence refers to “jurisdiction based on authoritative decrees, norms (models) or guidelines developed and applied by an authoritative technique that individuals have learned before disputes arise. ascertainable, and on the basis of which all may be reasonably sure that they will be treated in the same way. It implies that, to the extent that statutes of general applicability may protect, an impersonal, equal, Certain justice".On the other hand, ad hoc justice proceeds according to the will or intuition of an individual who has broad discretion in adjudication and is not bound by any established general rules.The first form is judicial, while the second is administrative.According to Pound, elements of both forms of justice can be found in all legal systems.He pointed out that the history of the law shows that people have always oscillated between promoting broad discretion and insisting on strict and detailed rules.For example, in the 19th century, people opposed judicial discretion, tried to exclude administrative factors from the legal field, and advocated systematic judicial work based on definite, unified, and specialized concepts.And in the 20th century there was a revival of administrative justice, as evidenced by the increase in the executive branch and its tasks.Demands for individualization of justice have also emerged, and this phenomenon should be considered as a reaction against the overly rigid application of law in the process of consolidating legal status in the previous period.Pound said that the future problem is how to achieve an effective balance between judicial and administrative factors in the judiciary. "A legal system is successful because it succeeds in striking and maintaining a balance between arbitrary power on one end and limited power on the other. This balance cannot be maintained forever. The progress of civilization will continually throw the legal system out of balance; it will be restored by the application of reason to experience, and only in this way can politically organized society perpetuate itself. The rise of sociological jurisprudence in the United States is not only to oppose the traditional concept of natural rights, but also a response to the formalism advocated by analytical jurisprudence.American sociological jurisprudence believes that it is impossible to understand the law without considering the actual situation of human social life.Analytical jurisprudence calls for the self-sufficiency of legal science, while American sociological jurisprudence rejects this appeal, advocating the integration of jurisprudence with other branches of the social sciences; A solid understanding of the social and economic factors that affect law. One of the greatest judges in the United States, Benjamin N. Cardozo (Benjamin N. Cardozo (AD 1870-1938)) emphasized that justice must adapt to social reality.Under the influence of sociological legal theory, he carried out a keen and thorough analysis of the judicial process.Without discounting the role of logical reasoning in the process of legal interpretation and application, Cardoso concludes that social policy considerations are important in the trial process.The judge tries to explain social consciousness and to make it real in the law, but in doing so he is sometimes actually helping to form and modify the very consciousness he is asked to explain.Thus, the judicial process contains both an element of creation and an element of discovery.Judges must often weigh competing interests and decide between two or more alternative, logically acceptable decisions.When making such a choice, the judge must be influenced by his own instinct, traditional beliefs, acquired beliefs and the concept of social needs. "He must balance the elements that he has—his philosophy, his logic, his analogies, his history, his habits, his sense of entitlement, etc., and add and subtract as often as possible. judiciously determine which should have greater significance". Cardozo believes that the belief in precedent should be a rule in the judiciary and should not be an exception.But he also believes that judges can be exempted from the rule of following precedents when following them is obviously inconsistent with the sense of justice and social welfare.He pointed out that the need for certainty must be coordinated with the need for progress to some extent, so the principle of precedent cannot be regarded as an eternal and absolutely unchanging truth. "Between the worship of the past and the praise of the present, one can find a safe path". Cardozo believes that "if conflicts and waste are to be avoided between units and between individuals, then the law constitutes the expression of a principle of order that must be followed by the behavior and relationships of members of society."He was convinced that many social forces—logic, history, custom, utility, accepted standards of right and wrong, etc.—contributed to the formation of normative systems called laws.Cardoso strenuously rejects the notion that law is an institution devoid of universality and logical self-consistency, because law is nothing more than a series of more or less arbitrary, accidental, "isolated decisions" composed system.He is convinced that there are recognized social standards and objective value models, which give the law a certain degree of unity and self-consistency, even in the case of trial, it is still impossible to avoid the judge's personal and subjective judgment.In Cardoso's own words, "The tradition of jurisprudence makes us subject to objective standards. Of course, I am not saying that this ideal of objectively knowing things can be fully realized. We cannot transcend the limitations of ourselves, nor can we recognize The truth of things. But it is still an ideal to strive for, so far as we can. When this truth is clearly recognized, it tends to unify the function of the judge." When we compare Cardoso's views with those of another famous American judge, Oliver Wendell Holmes (1841-1935 AD), we will find that both There is a large degree of agreement on some key aspects of the judicial process.However, we will also find that Holmes's judicial philosophy has much less ethical idealism than his colleague Cardoso. Like Cardoso, Holmes also emphasized the limits of deductive logic in solving legal problems, but compared with Cardoso, he despised the role of logical reasoning in trials. The life of law is always not logic, but experience.Perceived necessities of the age, prevailing moral and political theories, intuitive knowledge (whether declared or unconscious) of public policy, even prejudices shared by judges and their fellow men, all play a decisive role in determining the It has a greater effect than deductive reasoning when it comes to the rules on which it should be based.What the law embodies is the development history of a nation through many centuries, so it cannot be considered that it only includes the rules and theorems in mathematics textbooks. Only judges and lawyers who are familiar with the historical, social and economic factors of the law can properly discharge their functions. Although Holmes believes that various forces in history and society play a huge role in the life of law, he still ignores the significance of ethical or ideal factors in law.As an ethical skeptic, he mainly regards law as a collection of regulations representing the will of dominant interest groups in society and backed by force. "As it develops into a corpus juris, the ultimate question is what the dominant social forces want, and whether these powers want to make the corpus strong enough to defy the obstacles that may be encountered."While Holmes acknowledges that moral rules are influential in the initial formulation of legal rules, he tends to see morality as the changing interests and value preferences of social power groups.Furthermore, he believes that "if it were possible to eliminate from the law all words with moral connotations," it would probably be helpful in explaining existing positive law." His basic philosophy is that life In essence, it is Darwin's so-called competition for survival, and the survival of the fittest is a reward during it. Therefore, the goal of social efforts is to "establish a competition" rather than struggle for the realization of humanitarian ethical goals. Holmes's ethical agnosticism also influenced his general attitude towards the legal system.He declared that a pragmatic view of law must understand law from the point of view of "bad guys." If you want to know the law and nothing else, then you must look at the law from the point of view of a bad man, not from the point of view of a good man, because the bad man is only concerned that his knowledge of the law will enable him to foresee the substantive consequences of his actions, whereas the good man always seeks his reasons for his actions—whether they be within the law or outside the law—in the less definite state of the license of conscience. ... If we take the point of view of our friend (the bad guy), then we find that he doesn't care about axioms or inferences, but he does want to know what the courts of Massachusetts or England will actually do.I agree with this guy's point of view.When I say law, I mean a prediction of what the courts will actually do, not anything else. This succinct definition of law became a fundamental tenet of the credo of some American legal realists.The views on legal realism I intend to discuss in the next section. The realist movement in American jurisprudence can be said to be a radical wing of the sociological legal school.The movement itself did not form a legal school, because it did not produce a group of like beliefs and a unified program.It is a unique research method, that is, a special way of thinking about legal problems peculiar to those who call themselves legal realists. Perhaps the most important feature of the realist jurisprudence movement is the tendency of its representatives to minimize the normative or prescriptive element of law.For realist jurists, law is just a set of facts rather than a system of rules, that is, a living system rather than a set of norms.Legal realists believe that what judges, lawyers, police officers, and prison officials actually do in legal matters is essentially the law itself. Karl Llewellyn (about 1893-1962) played an orthodox realist doctrine in his early writings.He pointed out that the significance of substantive law rules in the actual legal practice process is far less important than people thought earlier. "The so-called theory of 'rules decide cases' seems to have fooled not only academics but also judges for a whole century."He proposed that the focus of legal research should shift from the study of rules to the study of the actual behavior of judicial personnel, especially the behavior of judges. "In my opinion, what these judicial officers do in resolving disputes is the law itself." In 1950, however, Llewellyn retracted that statement.In his later writings, he emphasized the importance of normative generalizations in law; the entirety of the system.While adhering to sociological jurisprudence, he also attempted to reveal the relationship and connection between legal science and other social sciences, and concluded that jurists and social scientists had not until then been able to "be at the juncture of the boundaries of the disciplines". make an effective cooperative effort". Jerome Frank (1889-1957 AD) offered a rather radical view of legal realism, at least in his early writings.Frank, in his influential book Law and the Modern Mind, described the American judicial system as a more or less disguised oriental Muslim civil judge System (cadi justice).He argued that legal rules are not the basis for American judges' decisions because judicial decisions are determined by emotions, gut hunches, prejudices, temper, and other irrational factors.Thus, people's knowledge of the rules of law gives them little help in predicting what a particular judge will do. "Until a particular judgment (judgment, order, or determination) is given, no one will know the law applicable at the time of the trial of the case or with respect to a particular situation, transaction, or event." From the above point of view, it is obvious that the judgment of the court is extremely uncertain and difficult to predict.But Frank says that people need not lament such uncertainty in the law; instead, he sees great social value in it.He dismisses the idea of ​​man's ability to make the law stable and fixed as a remnant of a "basic legal myth" and a child's "father complex" .Why, he asked, would one seek unattainable certainty in the law? "Our answer is that because they have not eradicated that childlike need for an authoritative father, and unconsciously try to find in the law the stability, reliability, certainty and A foolproof substitute".If the desire for a father substitute is removed, they will have a more correct perception of the law.They will find that there is no law on a particular issue until the courts have ruled on it.Until such a decision is made, the only law available is the lawyer's speculations about how the court might try and what kind of decision it will make. "In any particular case, the law is either: (1) actual law, that is, a past judgment on the case; or (2) probable law, That is, a guess about a future judgment".According to Roscoe Pound, this view is "the cult of individualized judgment". After Frank's promotion to federal appeals court judge, he began to turn his attention from the rules of the law to study the fact-finding process of the trial court.In his own words, he has shifted from "rule sceptic" to "fact skeptical".Frank declared that the fact-finding of the trial court was the weak point in the judiciary, Achilles' heel.未浸到水的脚蹱外，浑身刀枪不入。因此，阿基里斯的脚踵比喻惟一致命的弱点）。他带着极大的兴趣对可能会渗入初审法院裁定事实中的无数的错误来源进行了彻底的研究。这些错误来源可能是：“作伪证者、受人指使的证人、有偏见的证人、在陈述所举证的事实时发生误解的证人或回忆其观察时发生误解的证人；有证人失踪或死亡、物证灭失或被毁的情形；有为非作歹和愚蠢的律师、带偏见的和心不在焉的陪审官，也有愚蠢、'固执'或对证词有偏见或漫不经心的初审法官”。他指出，所有上述因素中，最为重要的是法官那种不可预测的独特个性，因为它会使任何提出相互冲突证据的诉讼变成一件高度主观的事情。根据弗兰克的观点，法官（或陪审团）具有“一种实际上不受控制的和实际上无法控制的事实裁决权（fact discretion）”或“最高权力”，亦即确定哪个证人的证言是正确的并予以接受的权力。虽然弗兰克为初审法院程序的改善和合理化提出过不少建设性的建议，但他仍然认为，尽管可以进行这些改革，可是在司法事实调查中永远会存在大量非理性的、偶然性的、推测性的因素，而这些因素的存在，则会使人们根本不可能对诉讼结果作出预见。 由于低级法院的事实调查问题处于弗兰克法学思想的核心位置，所以他对法律规则和先例采取了新的看法。他承认，许多法律规则是确定的和肯定的，而且先例制度也具有相当的价值。他也认识到了法律规则作为判决的一般指导的必要性，并宣称规则中包含有重要的政策和道德理想。但是他仍然强调说，在许多情况下，初审法官或陪审员在确定事实的过程中所适用的“隐蔽的、无意识的、私下的、带有个人特性的规范”，仍会使客观的法律观范变得无甚效力可言。他得出结论说，由于法官常常严重地破坏先例制度，因此那些规则原本似乎可以提供的一致性和稳定性，也就往往会在实践中变成一种虚幻的空想。 尽管弗兰克法官对审判程序是否能发现事实真象的可靠性表示怀疑，但他却非常关注法院在调整个别当事人的关系中是否能实现正义的问题。为了能够达到这个目的，弗兰克要求一种“看得见的正义”（unblindfolding of justice）。他要求案件更加个殊化，并希望给所有或绝大部分规则注入大量的司法自由裁量权的因素，使这些规则尽可能地具有灵活性。他指出，每一项法律纠纷都是独特的和单一的，因此，法官不应过分地受僵化的一般概念和抽象原则的束缚。 弗兰克法官把注意力主要集中在有关法院审判和其他裁判程序的法律方面，而瑟曼·阿诺德（Thurman Arnold，生于1891年）所关注的却是对法律制度进行社会心理学的分析。这种分析对人之理性的力量充满着根深蒂固的怀疑和不信任。对阿诺德来说，法学理论和法律原则意味着“布道的方法而不是实用建议的方法”。他认为，法理学乃是那个“关于一个由理性支配的世界的光亮无比但却无法实现的梦想”。他断言，在真实的实践过程中，法律是由大量带有感情色彩且互相矛盾的符号和理想组成的。他认为，法学家为法院建构一个逻辑天堂（其间，互相冲突的理想被处理得似乎自恰一致）的努力，不仅是无用的，而且也不具助益。在他看来，法治只有凭靠各不相同且相互冲突的符号和意识形态的协调共存，才能得以更好地维持下去。 “伟大的、盛行的、真诚的理想使某个民族大为激动且变得脱离实际之时，也就是司法制度失去其威信和影响之际”。阿诺德认为，只有价值怀疑论和价值多元论才能防止产生偏狭且极权的政治统治。 " 斯堪的纳维亚国家的法律现实主义和美国的法律现实主义一样，都厌恶形而上学的和纯思辩的思想观点，并且都希望把法理学的研究集中在法律生活的“事实”上。然而，这种现实主义对法律过程的看法所具有的某些特征，则表明它是源出于欧洲大陆思想脉络的。与美国现实主义的论著相比，斯堪的纳维亚国家的法律现实主义较少强调司法的行为面相（如司法行动的政治驱动力和情感驱动力），也较少强调查证事实方面的种种变化。相反，这种法律现实主义较注重详尽讨论比较抽象的问题，如法律规范有效的根据和权利义务的性质等问题。 阿塞尔·黑格尔斯多罗姆（Axel Hagerstrom，公元1968～1939年）被认为是斯堪的纳维亚国家现代现实主义运动“乌普萨拉法学派”（译注：“Uppsala School”，因黑格尔斯多罗姆是乌普萨拉大学哲学系教授而得名）的奠基人。他的得意门生，同是瑞典的法学教授维尔赫姆·伦德斯特（Vilhelm Lundstedt，公元1882～1955年）则以一种较为极端的方式发展了他的理论。这场运动的其他两位头面人物是瑞典的卡尔·奥利维克罗纳（Karl Olivecrona，生于1897年）和丹麦的阿尔夫·罗斯（Alf Ross，生于1899年）。 黑格尔斯多罗姆对法律的基本概念，特别是对其间的“权利”的概念作了批判性的分析。传统的权利观念一直认为，非物理的力量能使一个人合法地拥有某物或合法地为某种行为。黑格尔斯多罗姆的反形而上学的理论则认为，这样一种观念是没有意义的，因为它在物理世界中没有对应物。例如他指出，所有权在被侵犯并成为诉讼对象以前，是不具经验意义的。即使所有权被侵犯并成了诉讼对象，诉讼当事人对所有权的主张，也只有到他能够证明其资格时才是现实的和实际的。因此，在黑格尔斯多罗姆看来，离开救济和强制执行措施来谈论权利是毫无意义的。 然而，黑格尔斯多罗姆却试图为人们认识一种抽象的权利观念提供一种历史的和心理的解释。他试图从历史的角度将这种权利概念追溯到古代法律制度所采用的法律巫术，并从心理学的角度将其追溯到一个认为自己拥有正当且有效主张的人的情感力量。奥利维克罗纳接受了这种心理学的理路，并提出了这样一个命题：与其说是任何具体的或客观的观念，不如说是人之心智所具有的对权利的主观观念或意象，构成了人们认识权利的基础。 伦德斯特对传统的法律观念进行了更为尖锐的抨击，并且还把这种抨击扩及到了其他基本的法律观念，如义务、违法、犯罪、责任等等。伦德斯特认为，这些观念只能在“主观意识”中起作用，而且不可能具有任何客观的意义。例如，那种宣称被告的行为违法的说法，只不过是可能判决他赔偿损失这一事实的语义遁词而已。那种宣布被告违反某种义务的说法，实际上只是一种价值判断，因而也只是一种情感的表示。能够归于这些术语的惟一现实意义就是它同国家强制的法律机器具有联系，因为建构这种机器的目的就在于强制执行合同或惩罚罪犯。罗斯也重复强凋了这种观点。他宣称，“权利”这个词“根本就没有语义关联”，它只是一种描述技术的工具，而不是某种能够被实体化的东西。 阿尔夫·罗斯特别关注法律的有效性问题。他试图抛弃法律有效性中所有先验的和纯规范性的成分，并把法律有效性完全置于可以观察的现象世界之中。他得出结论说，如果可以预见法院会在未来的诉讼案中适用某一法律规范，那么这一规范就是有效的。他的这个观点是以这样一种假设为基础的，即从法理学和逻辑学的高度看，规范是提呈给法院的，而不是呈示给个人的。罗斯坚持认为，在对未来的司法诉讼进行预测时，对司法态度进行纯粹的行为主义解释是不充分的，人们还必须考虑法官心目中所具有的那些特定的规范观念以及当时盛行的一般法律意识形态。 试图在法律科学领域彻底清除价值判断的努力，促使斯堪的纳维亚国家的法律现实主义者们开展了一场反对被他们称之为“正义方法”（the method of justice）的不屈不挠的斗争。黑格尔斯多罗姆说，价值判断只是关于其字面形式的判断。他宣称，应然的科学是不可能的，因而研究真正的正义原则只是一种幻想。斯堪的纳维亚现实主义者们认为，法律并不是为了实现正义的努力，而是由社会集团压力或必然的社会需要造成的。伦德斯特认为，正义只是法律承受者的一种情感，而这种情感是由习惯和占支配地位的意识形态引起的，即法律秩序是令人满意的。“正义感并不能指导法律，相反，正义感是由法律指导的。” 伦德斯特认为正义的方法是无用的，并提出“社会福利的方法”（the method of social welfare）与之相抗。他坚持认为这种方法摆脱了所有的伦理评价，因为社会福利这一概念只涉及到被人们在一定社会和一定时代认为是有益的安排。“事实上被评价为某种社会利益的东西，就是对社会有益的”。 罗斯煞费苦心地主张，道德和正义问题实是人之认知所不及的。他认为，构成自然法哲学基础的那些有关人性的基本假设完全是专断的，而由此推断出来的道德法律思想因而也是专断的。“自然法的崇高外表长久以来一直被用来保护或争取一切要求，而这些要求明显是由某种特殊生活条件引起的或是由经济上和政治上的阶级利益、当时的文化传统及其偏见与抱负决定的。一言以蔽之，所有这些都被用来制造那种被普遍称之为意识形态的东西。无论是人人皆兄弟的观点，还是弱肉强食的观点，都无法在客观上被证明是正确的或错误的。这种是非判断是以主观的、情感的感觉为基础的，而且什么事都可以诉诸于正义。“诉求正义就象拍桌子一样，即一种可以把一个人的要求变成绝对的先决条件的情感表示”。实际上，可以赋予这个概念的惟一意义，可能就是它能够提醒法官应当以正确的和不加歧视的方式适用一般性法律规则。 罗斯还把批判的矛头指向被他称之为的那种“社会福利的幻想”。他否认人类社会本身具有自身的需要和利益。“所有人类的需要都是通过个人来体验的，因此社会的福利就等于其成员的福利”。他得出结论说，任何宣称具有普遍效力的政治行动的规范性原则，都无法解决需求之间的那种不可避免的差异与利益之间的那种不协调。 乌普萨拉法学派的理论在斯堪的纳维亚也遭到了一些反对。丹麦法律哲学家F·维丁·克鲁斯（F·Vinding Kruse，公元1880～1963年）就猛烈地抨击了这个学派所提倡的现实主义的极端自然主义形式，并呼吁根据经验的方法详尽阐释规范的和伦理的法理学。他认为，在科学的基础上发展道德和正义的基本准则是可能的。因此，在社会中共同生活的人不应当相互伤害的原则，可以从人们对其人身和财产遭到侵犯时所产生的一般反应中推论出来，因而人们不应当把这一原则看成是一种专断的规范性要求。在挪威，弗雷德·卡斯伯格（Frede Castberg，生于1893年）也坚持主张，法理学绝不能放弃探求有关是非问题的答案，因为“社会中对正义的要求，是植根于我们的精神本能之中的，其程度就如同我们的思维对逻辑关系的诉求一样强烈”。