An issue given special attention in Hägerström’s investigations is that of conceptual analysis,and here Hägerström delivers a broadside against the philosophical realism prevalent among several of the leading legal scholars of his time. Ernst Rudolf Bierling (1841-1919), Karl Bergbohm, Nils Stjernberg (1873-1943), and Vilhelm Sjögren (1866-1929) make up the targets. The issue at hand is that of the so-called definition of law (Swedish: rättsdefinitionen).The prevailing opinion, Stjernberg serving as the illustrative example, is that the definition of law provides the scientist with a supreme and objective concept allowing him to define whether or not a fact either belongs to positive law or is of legal nature.209 But any such use of a concept of law which is held to be valid a priori entails a logical problem as its use presupposes that the facts that serve as the premiss for the analysis are defined as being an expression of what really is law. In such case, the determination of the objective principle of law is arbitrary insofar as it, on the basis of an empirical investigation of law determines what is law, rather than a philosophical, formal investigation determining law objectively without any reference to what accidentally is positive law. Hence, the line between positive law and other systems of law is defined arbitrarily, a distinction that, for instance, has been used to disqualify public international law from the class of positive law.210 How can this obvious circulus vitiosus have been overlooked? To Hägerström, the reason is obvious, the jurists have a curious notion of concepts, and endow words and concepts with a level of reality that is connected to the words themselves rather than to the phenomena to which these term are to refer.The objective status of law, legality, or right and wrong is thus held to follow and emanate as a ca l l f o r s c i e n t i f i c p u r i t y 443 4 . 5 legal conce pts , juri sprudent ial conce pts , and pos i t ive law 209 Ibid., pp. 19-20. 210 Ibid., p. 20.
RkJQdWJsaXNoZXIy MjYyNDk=