to Lundstedt, is wrong. Such a point of departure falsely assumes that the nature of the analysand constitutes a socio-ethically objective and impartial premiss.254 For why would such a premiss, in contrast with any other premiss of legal policy, be socially or ethically impartial and objective?255 What poses further problems to the doctrines of tortious causality is that positive law makes not only activity but also passivity, omissions, the possible subject of either, or both, penal liability (if so ordained by legislation) and indemnity liability, and does so despite the fact that it is impossible for an act of omission to constitute a proper proximate, natural cause to a specific damaging effect.256 For instance, according to the principles of strict liability a duty to pay damages is decided independently of the existence of any objectively culpable behavior or any prior objective illegality or similar norm violation on behalf of a defendant.257 However, according to the doctrine of causality, omission constitutes acause proper to an effect. (We shall now disregard the fact that causality by means of a presumption or fiction of law may create liability and a corresponding duty of indemnification, because in either of these cases it is neither the act, event, nor service itself that invariably brings about liability, but a positive rule of law ordaining certain specific acts that shall be regarded as being causative, and hence tortious in law.) Since any p a r t v i , c h a p t e r 5 458 254 Ibid. 255 Cf. ibid. 256 Lundstedt, “Kritik av nordiska skadeståndsläror,” pp. 151-152; Grundlinjer I, pp. 201202. 257 Hägerström, Objektiva rättens begrepp, p. 144;“The Notion of Law,” p. 228;“Straffrättsteoriernas historia och kritik (VT1921),” pp. 47-49. In the mentioned texts Hägerström discusses the fact that a railway service involves a strict liability for all damages in connection with such service, regardless of cause (accident, negligence, or premeditation), and does so, not due to any inherent illegality associated with services of this sort, but because society has found this allocation of liability to be just and fair. Consequently, it is impossible to deduce the indemnity liability of a rail service provider from the inherent legality or illegality of railway services.This weakens the tenability of the doctrine of illegality, which is due to its indeterminate relationship to positve law, as it on the one hand purports to describe positive law, while on the other, contradicts the same law. See Hägerström, “Straffrättsteoriernas historia och kritik (vt 1921),” pp. 138-148.
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