forms of non-statute law), which in general provides the activities of the judiciary with a certain degree of uniformity.260 What causes problems when interpreting this passage of Hägerström is that he uses the term“fantasy” to designate the ontological status of the concept valid law, when he in fact, by the use of “fantasy” criticizes the prevalent idea that valid law exists as source of law prior to the judge’s decision.The validity of law in this respect must be understood as a formal criterion rather than a material, what Hägerström wishes to illustrate is the validity of the judge’s decision in respect to the material rules of positive law.Accordingly, any reference to valid law as the basis to a legal decision constitutes describing the process of legal analysis hysteron proteron, turning the conclusion into the premiss, while simultaneously denying the dialectics of any such process. What has caused problems to the legal theoreticians in their attempts to define the concept of valid law is the will-theory of law.261 For according to this theory the law is presumed to constitute a predetermined, complete, and static system of normative expressions of the legislative will (in whichever of its different theoretical shapes), however this definition of law obfuscates the true nature of law, namely that it is a semi-static object, an object that depending on different points of view is either static, or plastic and malleable. Predefined and static when regarded as socalled positive law. Plastic and malleable, an object to be defined when regarded as so-called valid law. It is, so to say, static in its matter, plastic and malleable in its shape. Hägerström’s description of valid law amounts to the conclusion that valid law seen as an object is a fantasy,262 similar the fictitious view that the law is a complete system of rules ready to be applied.What makes the concept valid law a fiction is that valid law traditionally is perp a r t v, c h a p t e r 4 372 260 Ibid., pp. 216-217. 261 Ibid., pp. 209-218; Hägerström, “Förhållandet mellan staten och rätten (1924),” pp. 268-272. 262 Cf.The Historical School of Jurisprudence’s conception of valid law, geltendes Recht. Sandström, Rättsvetenskapens princip: till frågan om rättsvetenskapens värdelöshet och Friedrich Julius Stahls rättsinstitutslära, pp. 256-262 and 277-279.
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