cess of law-making, which amounts to the corollary that jurisprudence, by means of its concepts, gains a definite priority in the doctrine of legal sources - something that it lacks in real life. When the concepts of law are confronted with the rules of law, it is obvious that the materially valid concepts correspond to positive law, and must do so in order to gain practical content, rather than the reverse. From a theoretical point of view, the legislator is at liberty to decide arbitrarily the normative content of the rules of law, thereby thwarting the ambitions of jurisprudence. The jurisprudents, on the other hand, are hamstrung by the legislator’s monopoly of legislative power, which in effect denies jurisprudence the liberty of deciding what the law contains, as well as what it ought to contain. Hence, the logical causality is that the concept is a function of the thing, and not vice versa. Or what the 19th Century natural lawyer, Julius Hermann von Kirchmann (1802-1884), describe as being the unrewarding situation of positive jurisprudence: “drei berichtigende Worte des Gestzgebers und ganze Bibliotheken werden zu Makulatur.”274 In general, the concepts illegality and legality can be applied to all areas of law. In Hägerström’s day, the first level that these concepts were applied to was public law, where they were used as analytical tools to determine where the line was drawn between just and unjust exercises of power, that is the nature of the legal power exercised by the state and that exercised, for instance, by mobs, gangs of outlaws, or anarchists.275 Why are the powers of coercion exercised by a band of anarchists considered to be illegal, but when exercised by the state are considered to be legal? In principle, the difference in legitimacy is based upon the fact p a r t v i , c h a p t e r 6 464 274 Kirchmann, DieWertlosigkeit der Jurisprudenz alsWissenschaft: einVortrag gehalten in der Juristischen Gesellschaft zu Berlin 1848, p. 24/25. 275 Hägerström, Stat och rätt, p. 25. 6 . 2 Stat och rätt: i llegal i ty and legal i ty as not ions of publ ic law
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