preconditions to a specific legal effect (as the prevailing doctrine would have it). To Hägerström, the main aspiration of penal jurisprudence seems to have been to define an objective concept of illegality according to which the objective legality or unlawfulness of an act could be deduced a priori.322 An analysis of the concept of penal liability demonstrates the uselessness of the term illegality, for penal law is governed by the principle nulla poena sine lege poenali - that is, the principle that legislation prohibiting a certain act constitutes the necessary precondition for the criminalization of an act and the subsequent punishment of the perpetrator of an unlawful act.323 The criminalistic concept of illegality thus only constitutes an elaborate circumlocution of an act’s statutory unlawfulness. Since penal liability is a fact already defined by statute, but not a fact defined in advance by the science of penal law, then illegality itself cannot constitute a precondition for penal liability.324 On the contrary, illegality takes its meaning from legislation rather than lending content to legislation as the criminalistic theory of the day would have it. In tort law, especially with reference to indemnity liability, the same line of critique as that leveled against penal jurisprudence can be applied accordingly. Tort law construes the duty of indemnification (indemnity liability) as a specific legal consequence following on from an existing rule of law. It is only under such conditions that the duty of indemnification comes into existence in modern legal systems.325 What makes the concept of illegality spurious is that the illegality per se of an act is of no importance for the existence of positive indemnity liability, because according to the principles of positivistic jurisprudence illegality p a r t v i , c h a p t e r 6 480 6 . 4 . 1 l iab i l i ty and i llegal i ty 322 Hägerström, “Naturrätt?,” pp. 338-339; “Svikligt förtigande,” pp. 325-326. 323 Hägerström, “Naturrätt?,” p. 339. 324 Lundstedt, Principinledning, pp. 69-71. 325 Hägerström, Objektiva rättens begrepp, pp. 138-148;“The Notion of Law,” pp. 222-234.
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