upon society, it becomes necessary to maintain a penal system of law that prosecutors and judges sustain by acting as if the provisions of the penal system are valid rules of law.364 However, it is only possible to sustain a penal system provided that a general conviction exists that the penal provisions will invariably be implemented by the authorities.365 It is therefore in order to implemented whether valid law is a merely formal concept of law, or whether it must not also be supplemented with sociological or psychological elements in order for it to be realized.366 It is through the conviction that crimes will be punished, that a penal provision has force, and the fact that one “knows” that criminals will be punished (not the actual punishment of a crime) deters criminal behavior.367 But in reality, the actual implementation of those penal provisions that are in place ultimately depends upon the authorities’ attitude towards the rules in question.This observation is important to keep in mind, since it is easy to be misled if one construes society as if it were a freely and rationally acting personality, since any such idea is false. In fact, the penal code is enforced and maintained by prosecutors and judges who maintain it not by consideration to its expediency, but on account of loyalty or fear of sanctions from superior organs of the state.368 Thyrén’s point of view coincides with that of Binding inasmuch as the state’s right to punish is regarded as being a right that transcends legal consciousness, and is a right that rests upon a principle that is axiomatically given, simple and indubitable.369 However, if this principle constitutes a doctrine of legal science, then penal jurisprudence directly makes use of the mystical,metap a r t v i , c h a p t e r 6 490 364 Ibid.: p. 330. 365 Ibid. 366 Cf., e.g., Hägerström, Magistratische Ius, pp. 1-5;“Begreppet gällande rätt,” pp. 63-64 and 88. But the introduction of a sociological element entails that valid law ceases to constitute a purely legal category, whose exact determination is decided by means of a legal analysis, and transforms into an empirical category, whose exact existence is decided by means of a sociological investigation of facts. 367 Hägerström, “Naturrätt?,” p. 332. 368 Ibid.: pp. 332-333. 369 Ibid.: p. 336.
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