The main purpose of “Naturrätt i straffrättsvetenskapen?” was to investigate whether or not penal jurisprudence based itself upon metaphysical premisses, natural law.329 Hägerström’s definition of natural law is that it is a theory that presupposes the existence of a natural or rational ontological order or system endowing legal subjects with rights and duties, which apply to external relationships between humans. A legal right is a person’s power to rule over a specific value, thereby obligating all other persons to respect that value and act in a manner that does not violate the interests or rights of the entitled party.330 However, what is characteristic of natural law theory is that this power over the actions of other persons is ideal rather than real, and there is no need for any actuality or reality for its intrinsic validity, which in effect makes it a metaphysical power, a power that enters into existence despite reality (Immanuel Kant even describes the natural right of a person as being a right belonging to the “homo noumenon” rather than to the “homo phenomenon”).331 According to natural law, it is even the case that the non-performance of a positive duty transforms into the entitled party’s metaphysical power to enforce performance. In all, both natural law and the common sense of justice both assume that some rights and duties are natural as a matter of fact, that they derive their validity from the very nature of things. Hägerström thus asked if it was not the case that positive law and positive jurisprudence used the same conceptual apparatus as that of natural and rational law.332 p a r t v i , c h a p t e r 6 482 6 . 4 . 2 häge r ström’s purpose 329 Hägerström, “Naturrätt?,” pp. 321-324. 330 Ibid.: p. 321. 331 Ibid.: pp. 321-322. 332 Ibid.
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