Scandinavian legal scholarship has only half-heartedly embraced law and economics. Legal literature has suggested that this is due to the dominance of the prevailing legal theory, which was to a considerable extent shaped by the Scandinavian realist Alf Ross. The theory holds that it is the proper role of legal scholars to (only) predict how courts will apply sources of law to cases, and the suggestion is that this role leaves little room for analysis of consequences of legal rules or verdicts. The paper demonstrates that this suggestion misrepresents Ross’ views on functional analysis of law. In fact, Ross in fact called for the development of law and economics, as one might expect of a legal realist.
This paper further argues that if Ross’ theory stands in the way of acceptance of the methodology of law and economics, it is due to his dismissal of concepts of social welfare, including utilitarianism. The paper argues that Ross’ views in this regard ignore that it can be informative to consider consequences of legal rules in terms of explicit notions of social welfare even if these notions do not exhaust all social concerns. It is argued that legal scholarship can address normative questions without losing its scientific character, and that Ross’ definition of legal science was therefore too restrictive. It is this definition, preached rather than practiced, which today inhibits the interest in the application of functional analysis to law.
Lando, Henrik, Alf Ross and the Functional Analysis of Law (September 16, 2017).