with the right to create law independently of Nature, or if legal positivism gives law a formal content that holds true irrespective of positive law, then theoretical problems arise and the validity of the respective theories can be called into question, which according to Hägerström is the case.This is exactly what happens.The theory of natural law deviates from its own principles insofar as it, by reference to the fictional social contract, assigns to the sovereign the right and power, within the limits of natural justice, to institute binding laws, rights and obligations fashioned after the needs and interests of society.76 By making the philosophical necessity of the prescripts of natural law relative in relation to historical contingencies such as the whims of the sovereign and the needs of society, the purity of natural law is diluted by non-philosophical elements - so the theory of natural law constitutes a mixed, rather than a pure, theory of metaphysical law, which weakens its logical validity. Modern legal positivism shows a similar tendency to incorporate foreign elements into its theoretical structure, and incorporates elements from natural law into an ostensibly non-metaphysical theory of law.The difference between natural law and legal positivism is that the latter performs this incorporation in a less explicit manner than does natural law. For instance, in its theory of legal duties legal positivism applies a formal concept of legal duty that is a direct legacy from natural law, while simultaneously denying that natural law has any legal relevance in the establishment of the legal duty.77 One can thus argue that neither the theory of natural law nor the theory of legal positivism is free from contradictions - and as a matter of principle, both ought to be rejected as scientific theories.78 There is, however, a reason why it is wise to tread carefully before rejecting both theories out of hand.To the modern notion a ca l l f o r s c i e n t i f i c p u r i t y 315 76 Cf. Ibid., p. 603; Ibid., p. 52. 77 Ibid., p. 574; Ibid., , pp. 14-15. 78 Cf., e.g., Hägerström,“Begreppet viljeförklaring,” pp. 99-100;“Declaration of Intention,” pp. 299-300.
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