Scandinavian Legal Realism

Religion in Denmark is, legally speaking, embedded in two different regulatory regimes. The Evangelical-Lutheran Church is regulated as a public, administrative body, that is: within public law; whereas all other religious communities are regulated under private law as associations, charities or private institutions. From a legal, organizational and administrative point of view, there is thus no qualitative difference between the Folkekirke and any other public administrative body. But the other religious communities are regulated just as any other private association with no clear distinction based on the very idea that the organisation is religious.

This regulatory approach can be said to be pragmatic with a conclusion derived from a legal fact. As such, the governing approach to regulation of religion is very much in line with the jurisprudence of legal realism, which in the framing of Danish professor of law Alf Ross (1899-1979) was the prevalent jurisprudence in the second half of the 20th century (Ross 1946, 1957). The legal realism we see in Denmark is part of a boarder trend called the Uppsala school of legal thinking, which was inspired by Swedish philosopher Axel Hägerström (1868 – 1939). He, and thus in turn legal realism, was grounded in reason and a positivist approach to legislation, which places law as necessary a condition for organized social life. Legal realism is marked by the pragmatic conclusions to be drawn from legal positivism and it denies that there is any valid law that is not positively established, such as natural law or religious informal law.

It is within this understanding that Denmark claims to be secular. Secularism is not a matter of public policy or a product of deliberate legislation. The legal and political pragmatism that claims this secularism considers itself realism, maintains that there is in legislation and in administration no consideration for the legal conclusions to be drawn from religion. Secularism is pragmatic and therefore understood as realistic, but it is difficult to see where secularism historically and structurally embedded in Denmark.

While the constitution added distinction, it stopped just short of actual separation. The first four articles of the constitution can be said to demarcate the jurisdiction or, figuratively speaking, erect the pillars on which the modern state was build. The first articulates the geographical territory of Denmark, the second establishes the monarchy, the third enacts the division of powers and the principles of justice, and the fourth establishes the Church of Denmark. This means that although the Church of Denmark and minority religious affairs were to be regulated autonomously, they were to be so within the organizational frame of the constitution. In this sense, the Church – in parallel analogy to the Monarchy and the institutions of power – were both constituent to and subjects of the rule of law and Democracy, as defined in the rest of the constitutional body.

To the extent that Denmark can be said to be secular, it is so in the logic of legal realism, and the Danish paradigm of regulating religion exposes itself to the same criticisms that legal realism did. This includes the notions of non-voluntarism, scepticism and the insistence on laws that must be based on social fact and regulate social behaviour. However, exactly based in social realities, the normative power of religious morals seems to be resurgent.

VINDING, N. V., "State of Affairs of Danish Regulation of Religion," in VINDING & CHRISTOFFERSEN, Danish Regulation of Religion: State of Affairs & Qualitative Reflections, RELIGARE. 2012.