Additional attempts in jurisprudence to lay the foundations of rights on non-empirical ontological premisses will invariably encounter similar difficulties as occupatio in status naturalis. If John Locke’s idea of property,namely that work in status naturalis constitutes the institutive element of aright (especiallyworkperformed on ownerless or abandoned pieces of property), is used to explain and found ownership and property rights, then the yields of work can only be protected and accorded to the laborer provided that there actually exists a legal order that offers protection of such interests222- in other words, real and effective property rights require that status naturalis has become a thing of the past. Furthermore, if the existence of an agreement or contractual obligation is used to explain the emergence and origins of rights and duties, agreements and obligations become mere functions of a legal order, rather than constitutive elements to rights per se, or rights prior to or independent of existing legal systems. For example, the mystical transfer of powers between the parties to a contract that natural law presupposes shall enter into effect once the agreement is concluded is itself a “fact” of a dubious scientific character, for while the aforementioned transfer of power enters into effect independently of the activities of the legal order, the real and effective transfer of power only enters into effect provided that a legal order exists and that it prescribes the type of protection of property interests that the claimant demands.223 Accordingly, an effective right requires the existence of an effective legal order.224 Hägerström holds that the only theory of rights that makes a serious attempt to distance itself from natural law is Rudolf von a ca l l f o r s c i e n t i f i c p u r i t y 361 222 Ibid., pp. 41-42. 223 Ibid., pp. 43-58. 224 Ibid., p. 52. 3. 7. 3 the rights of prope rty, things , and pos se s s ion as pos i t ive inte re sts
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