rical legal order accessible to the cognitive subject.105 What Hägerström actually levels his critique at is the lax positivistic discipline with which legal positivism has traditionally been conducted.106 This laxness in discipline had allowed the inclusion of empirically uncorroborated legal concepts, for instance, the willtheory’s will, the rights and duties of natural law, illegality in tort law and penal law, and the declaration of intention in contract law into the system of law - concepts that Hägerström either discards or reformulates when found wanting upon inspection and examination. To begin, the will-theory runs through both natural law and legal positivism.107 The will-theory is made up of two main elements: the law itself and the law-making subject. Historically, legal theory has postulated that the law itself is the expressed will of either one of the following alternatives, which should serve as the supreme law-making subject: God (a super-natural entity); the actual sovereign; the state as a supra-individual subject; or the people itself.108 Despite philosophical differences both natural law (with its rationalistic epistemology) and legal positivism (with its empirical epistemology) ascribe to a common explanation of the material content of law, namely some expression of an act of volition, will.What becomes the law is decided by the will of a specific law-making subject.109 In essence, the will-theory constitutes an attempt to further distance legal positivism from the supernatural legal order, thereby providing positive law with a a ca l l f o r s c i e n t i f i c p u r i t y 325 105 See Hägerström, “B. o. F.,” pp. 54 and 103-104; “Hägerström.”; “The Philosophy of Axel Hägerström.”; “‘Ein Stein ...’”.Where Hägerström in no uncertain terms rejects the idea that the transcendent and super-sensible is cognitively accessible, and the connected idea that such knowledge would be possible at all. 106 Hägerström, Obligationsbegriff 1, pp. 1-18 and 599-612. 107 Hägerström, Objektiva rättens begrepp, pp. 166-168; “The Notion of Law,” pp. 254356; Olivecrona, Rättsordningen, p. 107; Kaufman, Rechtsphilosophie, pp. 52-59. 108 Ibid., p. 89; Strömholm, Rätt, rättskällor och rättstillämpning: en lärobok i allmän rättslära, pp. 82-84. 109 Olivecrona, Rättsordningen, pp. 101-102. 3. 2 fundamental e lements of the wi ll-theory
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