nonsensical to use objective illegality as a precondition to penal liability or any other form of liability.313 The legality or illegality of an act is judged with reference to the act’s accordance with extrinsic factors, such as the rules of positive law (what the penal code ordains, what follows from case law and doctrine etc), rather than from the act’s intrinsic legality or illegality. The doctrine of illegality amounts to a doctrine upon those legitimate grounds according to which the state possesses the right to impose sanctions upon a person, thereby in effect violating that person’s inner sanctity.314 When approaching the subject of illegality, one notices that this concept is difficult to maintain without contradictions.And despite the term’s outward appearance of positivistic respectability, that is, its ostensible deference to the principle of legality in penal law, illegality is a haven for all kinds of non-legalistic arguments. For instance, by means of this argument any kind of argument de lege ferenda may be introduced as if it were lex lata, thereby making it possible to use illegality as an argument to contend that certain types of behavior are criminal and punishable on account of the intrinsic illegality of the behavior in question (as such behavior in question contravenes what is intrinsically legal, whereby the behavior concerned ought to be illegal). Hence, if the behavior in question ought to be punishable, then it probably is punishable (that is, provided that we can interpret the statute in such a manner that this behavior in question becomes punishable).What the penal concept of illegality describes is the doctrinal opinion that an act as a matter of principle ought to be a penal offence and punishable.What one is thus confronted with is an autonomous principle of law that lacks support in the actual sources of law.315 a ca l l f o r s c i e n t i f i c p u r i t y 477 313 Ibid. 314 Cf. Hägerström,“Principundersökning,” pp. 220-224;“Fundamental Problems,” pp. 360-366. 315 See, e.g., Hägerström’s analyses of the fundamentals of penal law and jurisprudence in Hägerström,“Principundersökning.”;“Fundamental Problems.”;“Svikligt förtigande.”
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