will-theory is that the individuals belonging to a society generally are ignorant of both what the law contains and ordains. It is thus absurd to argue that the individuals, on account of the assumed existence of a mysterious collective or general will, actually demand or even insist on the enforcement of rules of which they lack knowledge.130 Apart from the causal inconsistencies of imperative and declarative will-theories, these theories overlook the fact that the actions of the judiciary, courts, or other authorities presuppose that specific violations of the law are brought to public notice, which in turn fulfils two goals: First, that the legal order passes legal judgment over an action; and, second, the subsequent transformation of a judgment over an action into new legal norms, its transformation into case law. Accordingly, it is correct to conclude that a decisive ingredient of the will-theories’ postulated existence of a law-making joint will is the assumption that each citizen possesses comprehensive knowledge of society and law, as any ignorance on behalf of citizens entails that the law-making subject cannot perform its main duty, which is to create and maintain the law of the land. An additional fact weakening the will-theory is the fact that in modern societies the rules of law are usually formulated (perhaps with the exception of customary law) and instituted by those possessing expert knowledge either, or both, in law and other fields of expertise. In modern societies the rules of law are formulated either through rules that are directly effectuated and accepted (such as doctrine and case law) or through programs transformed into law via political acts (such as, for instance, legislation).131 However, on some level the communal will-theory regarding the a ca l l f o r s c i e n t i f i c p u r i t y 333 130 “Är gällande rätt?,” p. 63; “Is Positive Law?,” p. 21; Hägerström, Obligationsbegriff 1, pp. 12-18. 131 E.g.,Hägerström,“Begreppet gällande rätt,” pp. 62-71and86-91. For the development of a gradually specialized process of law-making see, e.g., the Historical School’s description of this process. Savigny,“Vom Beruf,” pp. 65-68; Savigny, System des heutigen römischen Rechts, vol. 1, pp. 13-57; Puchta, Das Gewohnheitsrecht, vol. 1, pp. 133167; Das Gewohnheitsrecht, vol. 2, pp. 15-21; Stahl, Die Philosophie des Rechts nach geschichtlicher Ansicht, vol. 2.1: Christliche Rechts- und Staatslehre, pp. 136-165.
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