New article by Henrik Palmer Olsen – University of Copenhagen

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12 February 2013

New article by Henrik Palmer Olsen

The Scandinavian Roots of a New Approach to "Legal Knowledge"

In Retfærd 4/2012 Henrik Palmer Olsen (with co-author Stuart Toddington) has published an article that addresses a key issue in legal science: the need for an approach to legal studies that allow for a combination of internal and external perspectives on legal regulation.

With a starting point in the school of Jurisprudence known as Scandinavian Legal Realism, the authors note the original and important critique of the internal approach (predominantly exemplified by Hans Kelsen's Pure theory of Law) and the following shift in scientific focus: away from the 'pure' construction of normative relationships towards a more empirical approach to the investigation of legal normativity as an important starting point for a more fully sociologically informed approach to legal studies.

Olsen and Toddington argue that valid legal rules are not only members of a formally structured legal system, but are also mediated and mediating products of the relationship between law and society. Doctrinal analysis must, therefore, address the 'transformative dynamics' of law, that is, law's active and always creative ability to re-code normative social conflict into legal conflict. Attention to this meta-function of law - the authors suggest - will facilitate the needed combination of internal and external perspectives in which positive legal normativity and freer social processes can be theorised as mutually reflective images of each other; and law's transformative and dynamic nature as both a product of social processes and as a legal means of facilitating and supporting social processes. Henrik Palmer Olsen will seek to employ this approach to an analysis of decisions from International Courts in his coming work.

Read more in Henrik Palmer Olsen and Stuart Toddington: The Scandinavian Roots of a New Approach to "Legal Knowledge", Retfærd no. 4/139, 2012.