what good would the second command do if the first was not obeyed?339 According to Hägerström’s analysis of Binding’s text, what follows from Binding’s analysis is that the actual power to demand somebody’s obedience is something different from the actual power to force or compel somebody to submit to physical or psychological obedience. The power that Binding refers to merely binds its subject or object to a certain obligation to obey. This, however, is a very peculiar and mystical form of actual power.340 To Hägerström, Binding’s idea comes in handy, as it provides Hägerström with a prime example of what he wished to demonstrate - the metaphysical substratum of modern legal positivism (particularly that of penal jurisprudence). Binding’s argument leads to the conclusion that the legal subject possesses a supernatural power to bind others to obedience, even though he does not directly refer to a supernatural order as being the substratum to this power, but refers rather to a command of the state.341 Accordingly, Binding’s theory expresses natural law without nature.The jural basis to the state’s right to punish offenders arises through a transformation of a right - a transformation of the state’s original right to obedience - which is a right that transforms into a right to exercise coercion once somebody shows disobedience towards the norms of society.342 If, as Hägerström does, one applies the principle of legality, nulla poena sine lege poenali to any analysis of penal law, then one will observe that several theories of penal law contradict positive penal law on several counts.343 a ca l l f o r s c i e n t i f i c p u r i t y 485 6 . 4 . 4 . 1 Illegality and Guilt in Penal Law According to the Imperative-theory 339 Hägerström, “Naturrätt?,” p. 324. 340 Ibid.: pp. 324-325. 341 Ibid.: p. 325. 342 Ibid. 343 See ibid.: pp. 338-339; Hägerström, “Straffrättsteoriernas historia och kritik (VT 1921).”; “Principundersökning.”; “Fundamental Problems.”; “Svikligt förtigande.”
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