Apart from the use of legality and illegality (and their synonyms) in public law and constitutional law, the use of the concepts legality and illegality (and their synonyms) are of greater interest to this specific investigation when the perspective is shifted from constitutional law to penal law and tort law, which are two areas of law that revolve around the issues of an act’s legal status, its actual lawfulness.283 Hägerström’s first point of departure is Sjögren’s Om rättsstridighetens former (1894). In his analysis of Sjögren’s thesis, Hägerström concludes that for Sjögren illegality, or a condition of illegality, is at hand whenever a person according to legal facts possesses a right, but empirical facts simultaneously deny the same person that very right.To Hägerström, Sjögren’s conception of illegality is illogical.284 For while Sjögren, on the one hand defines illegality as being a state of discrepancy between law and reality, he simultaneously denies that acts of nature that hinder a person from utilizing his legal rights can bring about a state of illegality or “Unrecht”, which, given Sjögren’s own premisses, must be the logical conclusion. In that respect, Karl Binding’s thesis that a state of “Unrecht” is at hand when, for example, a storm smashes a sailing boat to pieces is strictly speaking logical, albeit totally out of touch with reality.285 There are no necessary legal consequences connected to the psychological will of a person, so to speak, that is determined by its illegality (Swedish: rättsstridig vilja). On the other hand, what has legal consequences attached to it is the outward expressions of this very will.To the legal order, it is irrelevant what specific a ca l l f o r s c i e n t i f i c p u r i t y 467 283 See also Hägerström, Objektiva rättens begrepp, pp. 138-154;“The Notion of Law,” pp. 222-240. 284 Hägerström, Stat och rätt, pp. 93-95. 285 Ibid., pp. 96-97. See Binding, Die Normen und ihre Übertretung: eine Untersuchung über die rechtmässige Handlung und die Arten des Delikts, vol.1: Normen und Strafgesetze. However, Hägeström refers to the second edition (1890) page 301. 6 . 2 . 1 i llegal i ty in penal law and the law of torts
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