Jhering’s theory of interests, according to which a right is defined as an interest protected by law (see also above).225 The problem is that the interest, the right, does not become protected per se just because the law prescribes the protection of the interest.What in fact is at hand is not actual protection, but the ideal that the right shall be protected.This is in fact identical to a declaration of intent or a command issued from the law-making authority prescribing that the interest shall be maintained in the future. Furthermore, the actual maintenance of the specific interest itself is carried out by means of the authority and power of the legal order, but not by means of the declaration itself.226 However, Hägerström is not satisfied with the aforementioned legal theory’s tacit positivism, for Jhering’s theory secretly supposes the prior existence of a legal order safeguarding the personal rights of the legal subjects, a supposition that undermines the scientific validity of Jhering’s theory. In fact, the only valid scientific explanation of the nature of rights is one that is undoubtedly positivistic, which to Hägerström amounts to a theory of rights reduced to its bare realistic essentials, that is, the idea that rights are “the advantages which the individual is granted through the system of rules”227 - for this is the only set of facts lending viability to the idea of rights. To sum up, the legal order is a precondition for a viable construction of rights, and a valid concept of rights.The right per se is thus a function of the legal order. Law formulates rights, and the legal order realizes them. A bonus of Hägerström’s critique of the aforementioned theories of rights is that his critique facilitates the understanding of what the origins of his idea of rights p a r t v, c h a p t e r 3 362 225 Ibid., p. 81. 226 Ibid., pp. 81-82. 227 Hägerström, “Hägerström.”; “The Philosophy of Axel Hägerström.” 3. 7. 4 comments
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