authority. Consequently, if the command-theory is maintained, then it becomes necessary to accept that there are no facts corresponding to our traditional ideas about, for example, property law and the law of debts.7 In such case, what are the facts to which legal duties correspond according to modern legal science? Apart from the command-theory, legal theory has attempted to anchor the duty to thewill of the legislative authority.We now have two alternatives. The first is one by which the legal duty is conceived as a behavior that must be performed in order to avoid sanctions from the state - in order to avoid its exercise of force - only to discover that this necessitates that the rights and duties of private law belong to the state rather than the contracting individuals.8 Moreover, this view makes the locus standi (German: Aktionsrecht) of the creditor illusory insofar as the party logically entitled to plead must then be the state or its representatives, rather than the actual creditor.9 In such case, the creditor cannot be regarded as being the entitled legal subject in a civil suit, but must be regarded as being a representative of the state pleading the case (much in the same way that modern law allows the public prosecutor to serve as the state’s representative in criminal proceedings).This is because according to the different will-theories it is, surprisingly enough, not the creditor’s rights but the state’s rights that have been violated and must be restored. Furthermore, the will-theory involves the notion that the systematically important and timehonored distinction between the rules of private law and of procedural law (public law) is blurred.10 The second alternative is to conceive the legal duty as being attributable to a command of the p a r t v i , c h a p t e r 1 378 7 Ibid., pp. 4-5. 8 Cf., e.g., Hägerström, Magistratische Ius, pp. 1-5. 9 Cf. Hägerström, Obligationsbegriff 1, pp. 607-608. 10 Ibid., pp. 6-7.When pointing to the fact that the traditional will-theory results in the effect that the distinction between private law and public becomes blurred, if not eliminated Hägerström argues along the same lines in Objektiva rättens begrepp, pp. 122-126 and 162-168; “Stat och statsformer (1921),” pp. 201-206; “Förhållandet mellan staten och rätten (1924),” pp. 250-256.
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