Analysis of language and legal rights within the Scandinavian debate. Human rights: a “hidden essence”?
| Autor | Alessandro Serpe |
| Cargo | Universidad Federico II de Nápoles Italia aserpe@yahoo.it |
From the Second World War the relationship between legal rights (rett) and language has been amply debated within Nordic countries (Eckhoff, 1969: 63). The new approach of analytical jurisprudence was in line with the tradition of Scandinavian realism. My contribution addresses the search for differences and similarities by describing the contribution of Scandinavian authors on legal rights and more explicitly their ontological and semantic nature, the issues of a definition and its practical utility within the legal system. The debate on legal rights arose in the 40’s may be considered as still actual in the sense that the semantic and pragmatic approach has nowadays involved the issues concerning the nature of human rights.
In 1945, the Swedish Per Olof Ekelöf 2 published an article supporting his theories. It was the object of Ivar Strahl’s (2.1) and Anders Wedberg’s criticism (2.2). To some extent the Swedish Anders Wedberg anticipated Alf Ross’s approach (3; 3.1) other significant contributions came from Karl Olivecrona and Vilhelm Lundstedt who followed in the footsteps of Axel Hägerström (4; 4.1); in Norway Torstein Eckhoff’s and Nils Kristian Sundby’s contributions, even if quite distant from Ross’s, are worthy of mention 5. Last but not least, Torkel Opsahl’s contribution, as to definitions and legal rights terms, seems to be quite suggestive. The Norwegian legal philosopher opened an interesting connection between the theory and the practice of human rights by investigating human rights and legal rights by semantic and linguistic analysis 6. The essay ends with a brief indication of my conclusions (7.1; 7.2).
Before proceeding any further it is convenient to describe the meaning of the word “rett” as used within the Scandinavian countries. The word “rett” has at least four main meanings:
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The word “rett” may mean the set of all current legal rules in society (in this sense the word “rett” may mean what Germans call “das objective Recht” and what Anglo-American call “Law”);
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The word “rett” may be considered as a synonymous of the German “Gericht” and the Anglo-American “Court”;
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The word “rett” may express a ‘positive appraisal’ namely it may mean ‘worth of ethical approval’ so as its application is quite neutral;
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The word “rett” may mean “legal right” (in this sense the word “rett” may mean what Germans call “das subjective Recht”).
As to the fourth sense of the word “rett”, it is important to note that it is often used as synonymous of the other term “rettighet”. More explicitly the term “rettighet” (or “rett” in a subjective sense) may not only be contained within normative statements which describe or prescribe how a certain action is to be judged according to the law, but also in a more complex way. “Rettighet” is also used in a sense in which a person is said to have a right even where this statement does not entail that there are definite actions which he has a right to do or not to do, or which others have a duty to do or not to do (Sundby, 1968: 74-76).
In my paper I will focus on this last fourth meaning of the term “rett” (and/or “rettighet”) so ignoring the other senses of the term “rett”.
As far as legal rights were concerned Ekelöf tried to find a comparable expression to substitute the word “claim” within normative statements (1945: 211-272). He used the two following examples A and B.
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If a loan is granted it comes as a consequence that a claim comes into existence;
Here a loan is granted.
Here there exists a claim.
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If a claim exists, then it stands to reason that payment is made on the day it falls due (Sundby, 1968: 79).
Here there exists a claim.
Here payment shall be made on the day it falls due.
In example A the word claim could be substituted by an expression indicating complex legal consequences (namely a set of all the facts which according to the Law constitute the conditions for the existence of a claim) whereas in example B claim could be substituted with an expression regarding complex legal facts (namely the set of all legal consequences following the existence of a claim) (Sundby, 1968: 79-80). Complex legal facts can be also defined as “creative facts” (for example in the case of a loan, the factual causes) and partly as the “extinguishing facts” (the prescriptions, compensations or remissions). Complex legal consequences can be grouped into “actual” or “present” consequences (the loan might be transferred to another creditor) and ”hypothetical” consequences (coming into existence) only if additional facts supervene. The substitution will be successful only if the new sentences combined through deductions have the same legal function as the old ones (Sundby, 1968: 82).
Ekelöf’s significant contributions regarded the innovative attempt of substituting legal rights terms by fighting the belief that such terms designate something which “comes between” legal facts: legal rights have a factual nature.
Ivar Strahl arose his criticism toward Ekelöf’s concept (Strahl, 1946: 204-210) by asserting that the word claim could not indicate two different things namely legal consequences (in example A) and legal facts (in example B). A and B only represent two legal inferences which are bound and combined to a wider chain of inferences so that the conclusions deriving from one inference will constitute the premise for the others. Strahl used the two following examples through a simple combination of A and B (C) and by combining elements from A and B (D):
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If a loan is granted, a claim comes into being (A)
Here a loan is granted.
If a claim exists, then payment shall be made on the day it falls due.
Here payment shall be made on the day it falls due.
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If a loan is granted, a claim comes into being;
If a claim exists, then payment shall be made on the day it falls due (B).
Hence, if a loan is granted, then payment shall be made on the day it falls due.
Consequently the legal term cannot mean two different things as this would lead to a logic fallacy (Sundby, 1968: 82). The word claim has to indicate either legal facts or legal consequences. Strahl chose the first alternative, legal facts, because apparently these terms had already been used in the application of Law after previous investigations of a factual nature (Ivi, op.cit.: 83).
A different contribution still aimed at getting rid of this antiquated approach came from Anders Wedberg with his “theory of regression to legal facts” (teori på regressen på rettsfaktasiden) (1951: 246-275). According to this theory a legal factual situation (e.g. an ownership situation) is always influenced by a previous factual situation and consequently it is possible to draw “origin-lines” (avstammingslinjer). By going against these lines of thought, the original factual situation (førstehåndseiersituasjon) could be found, totally independently from the others, and defined without using the legal term (right of ownership) and constituting the basis for future factual situations second, third, fourth and so on (level of right of ownership) (Eckhoff, op. cit.: 65). Ekelöf’s, Strahl’s and Wedberg’s theories built up the foundations for Ross’s contributions.
Differently from Ekelöf, Ross believed that words indicating legal rights neither designate nor mean anything and in this respect he spoke about ”hollow words, without independent semantic reference” (Ross, 1957: 818). In his theory he proposed a suggestive and fantastic story to his readers to underline his point. He assumed that the anthropologist Ydbon had landed on Noîsulli Island and had made inquires about the habits and language of the Noît Kifs tribe. This tribe believed that if somebody violated certain taboos (for instance stealing the chief’s food, killing his stepmother or the killing of a totemic animal) they would become a Tû Tû. This expression indicates a sort of magical and dangerous force which possesses a person responsible for a crime. Once possessed by the Tû Tû force the victim must be purified by performing specific religious rites (Ross, 1976a: 165-181). Ross took for instance, the following sentences which are in use within the Noît Kifs tribe:
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If a person has eaten the chief’s food, then he is a tû-tû.
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If a person is tû-tû, then he shall go through a ceremony of purification.
These two sentences may be combined into a new sentence:
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If a person has eaten the chief’s food, then e shall go through a ceremony of purification.
It is as if the tribe is surrounded by a mysterious veil and irrational superstition so that the word “Tû Tû” totally lacks meaning and for this reason all discourses containing this word are meaningless. Nevertheless, the inhabitants are able to speak significantly when using this word as it is also aimed at prescribing and denoting other words belonging to other languages. In B for...
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