Legal Rules as Independent Imperatives

Abstract

Olivecrona maintains that legal rules are a species of imperatives, viz. independent imperatives, and that while thus conceived legal rules cannot establish legal relations, they can influence people and therefore cause human behavior. He assumes here that the citizens respect the constitution and that they are therefore disposed to obey any rule that can be traced back to the constitution. He repeats this analysis in the Second Edition of Law as Fact, where he also introduces the concept of a performative imperative, in order to account for those legal rules that concern rights and duties rather than human behavior. He also maintains that law conceived as a set of rules exists as ideas in the imperative form about human behavior, ideas that are again and again revived in human minds, and that this means that law does not and cannot have permanent existence. I find Olivecrona’s analysis fascinating but quite problematic. First, the claim that legal rules influence human beings seems to be either trivial or false, depending on how one understands it. Secondly, it is quite difficult to conceive of permissive rules and power-conferring rules as (independent) imperatives. Thirdly, the introduction of the concept of a performatory imperative brings with it new difficulties, namely to understand how an imperative can concern something other than human actions. Fourthly, the concept of an independent imperative cannot easily be distinguished from the more familiar concept of a norm, and this suggests, though it does not prove, that it is superfluous.