The prevailing doctrine of the day held that the logical precondition to punishment was constituted by a prior, objective, violation of a duty which was brought into existence by certain commands issued by the state.344 By making the legal status of an action dependent upon the state issuing a command or an imperative, the penal theorists, despite facts, may retain their positivistic point of departure.As has been demonstrated earlier, Hägerström was not deterred by any false proclamations of positivism in his analyses of contemporary legal science. According to Hägerström’s analysis, Binding’s norm-theory lacks support in positive law.What constitutes the ultimate reason for Binding's ideas is that he assumes that the state’s right to punish an offender is conditional upon the offender’s violation of a prior legal norm, which in turn is identical to an imperative issued by the state. Consequently, the existence of punishment has the violation of the legal norm itself as its precondition, whereby the state’s right to punish is derived from its right to demand obedience to any given command.345What one then might ask is how can any such contention be defended?346 According to Hägerström, the answer is simpleenough,neither on the nature of things nor on positive law.347There is in fact nothing that prevents punishment being prescribed for morally laudable actions or for punishment to being prescribed despite lack of illegal intent. In addition, the principleignorantia iuris nocet shows that lack of knowledge of the state’s imperatives and commands, such as the penal code, does not constitute a viable defense in criminal matters.348 So what Hägerström uses as his criterion of truth in his analyses of illegality and guilt, simply enough, is the principle of legality, which, when applied, disproves such constructions as Binding’s. p a r t v i , c h a p t e r 6 486 344 Hägerström, Objektiva rättens begrepp, pp. 150, n1, and 153, n3;“The Notion of Law,” pp. 235, n 2, and 238-240. 345 Hägerström, Objektiva rättens begrepp, pp. 150-153;“The Notion of Law,” pp. 235-240. 346 Hägerström, Objektiva rättens begrepp, p. 150; “The Notion of Law,” p. 235. 347 Hägerström, Objektiva rättens begrepp, p. 150; “The Notion of Law,” p. 235. 348 Cf. Hägerström, Objektiva rättens begrepp, p. 150; “The Notion of Law,” p. 235.
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