In a lecture series on the history of penal law delivered in the spring term of 1921, Hägerström, true to his habit,292 conducted a far-ranging historical exposition of occidental penal theory, and occasionally tort law, starting in antiquity and continuing until present times.The genetic theme of Hägerström’s lecture series indicates that penal law and theory are characterized by an organic development from a religiously, and to a certain extent, philosophically inspired law of vengeance (Swedish: hämndrätt) entailing an absolute duty to avenge wrongs, over a law of retribution (Swedish: vedergällningsrätt) modified by the culprit’s intent, to a secular penal order in which the state has monopolized the right to correct the culprit’s behavior.293 The immediate practical issues addressed are the fundamental ideas that the secular penal order rests upon - especially the penal theory of Johan C.W.Thyrén (1861-1933).According to Hägerström’s analysis, the two main trends that lay the foundations to modern penal law are the principle of retribution (based upon divine demands on the criminal’s destruction) and the idea that the criminal, through his criminal actions or criminal will, shall lose parts of his freedom vis-à-vis the violated party.294 Hägerström attaches great importance to the fact that these theories are invariably aimed at providing the retaliatory actions of the offended parties with some degree of legitimacy, which according to theory is necessitated by the fact that an act of retaliation or retribution invariably inflicts suffering upon the offending party. Not surprisingly, Hägerström demonstrates that most of these theories’ construction of legitimacy revert to natural law, including the idea that a legal subject, whether the state or private citizen, possesses inviolable rights, rights that the actions of p a r t v i , c h a p t e r 6 470 292 Cf. Faralli,“Anthropology and History in the Study of Law,”Rechtstheorie: Zeitschrift für Logik, Methodenlehre, Kybernetik und Soziologie des Rechts (1986): p. 275. 293 Hägerström, “Straffrättsteoriernas historia och kritik (VT1921),”passim. 294 Ibid., pp. 26/33-34. 6 . 3 the deve lopment of jural bas i s in penal law
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