ing, one must tacitly assume the existence of a factual legal order allowing a legal title to occupied property.218 The idea of occupatio as expressed in classical natural law is actually impossible to implement without an existing legal order, because it is only when set in a real context that the concept of occupatio, as a doctrinal proposition, on the one hand, becomes a real proposition about the law in force,and on the other,can be verified or falsified.What Hägerström demonstrates in his analysis of occupatio is a contradiction in the doctrine of ownership, but he does not demonstrate the existence of a real empirical statement which can falsify doctrine.219 It is therefore safe to assume that when Hägerströmdiscusses truth, reality, and so on in legal matters, he merely discusses the necessary conceptual framework within which a norm must exist for it to have any legal significance. This is because if occupatio is viewed realistically it is obvious that without an existing legal order the first occupant’s rights are null and void - for status naturalis offers no protection of rights and interests apart from the protection that the occupant can provide himself. If there exists no legal order to protect the first occupant’s position as first possessor of an object, then the occupant gains no real legal power over the object, as status naturalis itself offers no rules of competence or conduct by means of which the interests of the first occupant can be guaranteed by external intervention, protection, or reinstatement of his position as first occupant.220 Hägerström goes so far as to call the traditional construction of the principle of occupation, as a principle of law that is to be valid independently of the rules of positive law and an existing legal order, “humbug”.221 p a r t v, c h a p t e r 3 360 218 Hägerström, “Rättsidéers uppkomst (1917),” pp. 37-38. 219 Ibid., pp. 36-43. 220 Ibid; Hägerström, “Förhållandet mellan staten och rätten (1924),” pp. 249-250. Cf. Hägerström, Obligationsbegriff 1, pp. 70-71. Here occupatio is explained with reference to the material rules of Roman law, rather than as a function of lawper se. 221 Hägerström, “Rättsidéers uppkomst (1917),” p. 67. My translation. Swedish: “humbugsartad”
RkJQdWJsaXNoZXIy MjYyNDk=