The reason why penal law is justified in such a manner is that the private citizen lives by means of society, and that the rights of the citizen would be truly metaphysical without the existence of a society (by means of which such rights are implemented).372 While the private citizen can only be realized through society, society on the other hand constitutes an organized body of individual citizens, a body sustained by a system of rules, the legal order, which in turn is formulated according to the evaluations and values to which the individuals of society actually subscribe. These are values that in turn are balanced against one another so that the social interest of no specific class gains an undue influence over society, since such an imbalance would lead to the downfall and destruction of society.373 According to Hägerström, the penal system and penal law are both necessary to society. As far as Hägerström understood it, the theories of Binding, Hagströmer, and Thyrén were problematic insofar as they attempted to justify that which was in fact necessary to society - that which accordingly needed no justification, namely penal law.374 The continuation of Hägerström’s argument is hence that it is the absence of a penal system that must be justified rather than the existence of such a system. (One weakness in Hägerström’s argument is that he begs the question and justifies the penal system, by arguing that it needs no justification). Hägerström’s analysis thus concludes that matters of social utility constitute the self-evident basis for the justification of the penal system itself, but not the penal system’s logical relationship to a superior norm (as the latter line of argument rests on natural law). Provided that this is the case, then it is appropriate to inquire whether social utility really needs to be justified in abstracto. It is perhaps better tojustify the individual solutions one by one, in concreto. p a r t v i , c h a p t e r 6 492 372 Hägerström, “Naturrätt?,” pp. 334-335. 373 Hägerström, “Naturrätt?,” p. 335. 374 Ibid.
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