will is a will gaining its validity through its potential power of realization, its philosophical potentiality, and accordingly metaphysics make the will of the state identical to the inherent potentiality of the law.151The fault with the formal definition of the will is that the real will that is to serve as the substrate to law becomes indeterminate.152 Accordingly, if this will is to constitute a distinguishing characteristic of valid law,153 then the will of the state is neither actual nor existing, but merely an ideal referring to the potentiality intrinsic to the activities of legislation and lawmaking. However, in that case, what the will-theorists experiment with is future law, but not present law; hence, the basic principles of legal positivism, that law must be positive in order to be valid, precludes the law-making will from constituting valid law.154 (Cf. Kant’s refutation of the ontological proof for God’s existence).155 Hägerström’s understanding of legal science makes the formal definition of law, despite its scientific aspirations and formalistic perfection, unscientific, for there exists only one context from whence real knowledge can be deduced, namely from physical reality. Hence, legal science is restricted to examining the actual, real, existing, and valid law in a scientific manner. As a consequence, law and the a priori valid principles of law fall outside the scientific discourse, and any study of such objects is banished to legal policy and politics.156 The similarities between the willtheory’s formal will-definition, and ensuing definition of valid a ca l l f o r s c i e n t i f i c p u r i t y 341 150 Hägerström refers to the German scholar Rudolf Stammler’s Theorie der Rechtswissenchaft, Halle 1911. 151 Hägerström, “Är gällande rätt?,” pp. 77-78; “Is Positive Law?,” pp. 35-37. 152 Hägerström, “Är gällande rätt?,” p. 95; “Is Positive Law?,” p. 55. 153 N.B. C. D. Broad translates gällande rätt to positive law. 154 Cf. Hägerström, “Är gällande rätt?,” p. 95; “Is Positive Law?,” p. 55. 155 Kant, Cr. P. R., pp. B620-631. See especially Kant’s example on page B627 regarding the difference between actual money and the ontological concept of money. Try buying a loaf of bread with the latter.A good example of similar critique is Jeremy Bentham’s famous words about the tendency of natural law to mistake the formulation of a need for a good for the actual existence of that good itself. Bentham, “Anarchical Fallacies,” p. 53. 156 Cf. Hägerström, “Är gällande rätt?,” p. 59; “Is Positive Law?,” p. 17.
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