According to Hägerström’s analysis, the imperative-theory treats executive force and other forms of public coercion effected by means of the legal system in a manner that contradicts the express rules of positive law. The imperative-theory argues that legitimate executive force presupposes a previous violation of a command, which is a misconception of positive law originating in the fact that legal consciousness demands that a command or a norm must be violated in order for the sanction, or use of force, to be legitimate.This line of reasoning also applies to the doctrine of declaration of will (Swedish: viljedeklarationsteorien), which makes a similar mistake, by making the violation of a right to something rather than a violated duty the pivotal point separating the just application of force from the unjust.297 The imperative-theory asserts that the legitimate use of force requires that the subject of the sanction has wronged in some manner or other, and that this wrongful and duty-negating behavior has violated another subject’s legal right. In addition, the just execution of legal force demands that the aforementioned behavior violates a public demand, which is a description of the legal requirements for the proper use of force that contradicts the basic principles of positive law and should thus be rejected.298 To prove his point, Hägerström uses a few examples from private law, and shows how guilt or wrong on behalf of a legal subject does not constitute a necessary pre-condition to the state’s just and legal use of force.299 A person, for instance, may without any trespassing or violation of any command or imperative of the state become the subject of just state sanctions - for even an indebted, mentally incompetent person or infant, may become the subject of foreclosure regardless of whether or not the debtor p a r t v i , c h a p t e r 6 472 6 . 3. 1 i llegal i ty and gui lt in private law according to the impe rat ive-theory 297 Hägerström, Objektiva rättens begrepp, pp. 138-139; “The Notion of Law,” p. 222. 298 Hägerström, Objektiva rättens begrepp, p. 140; “The Notion of Law,” pp. 223-234. 299 Hägerström, Objektiva rättens begrepp, pp. 140-148;“The Notion of Law,” pp. 223-235.
RkJQdWJsaXNoZXIy MjYyNDk=