The jural basis, the right to punish, according to Binding, is disobedience to a legal norm.According to Hagströmer andThyrén, the jural basis, the right, to punish is conditional upon the existence of an offender’s anti-social will, but according to the principle nulla poena sine lege poenali this anti-social will must make itself manifest by means of an action or omission that is penalized prior to the event. As a result, penal law and the science of penal jurisprudence must determine objective penal requisites, some subjective and some objective. Among the objective, we find illegality, which entails that any action or omission must constitute an attack on the legal order itself.375 Hagströmer and Thyrén are indubitably legal positivists, but their lines of argument contain non-positivistic and unscientific influences. Hägerström concludes his investigation by claiming that natural law permeates modern penal jurisprudence. Certain concepts of law, especially those of a jural basis, illegality, and legal consciousness lack basis in reality, as they lack either, or both, a factual basis and logical consistency.Autonomous illegality - which is a contradiction that can only be demonstrated circularly - lacks any independent function in the determination of an act’s or omission’s criminal character.376 Other concepts such as the will of the legal order or will of society are equally useless insofar as such categories, on the one hand, are impossible to identify, and on the other, have unreal properties.377 In fact, Hägerström suspects that the will of society or state is just as metaphysical as the right that the individual possesses as an end in himself.378 With respect to the genesis of law, Hägerström concludes that legal rules gain force in society by means of various psychological a ca l l f o r s c i e n t i f i c p u r i t y 493 375 Ibid.: p. 338. 376 Ibid.: p. 339. 377 Ibid.: pp. 339-341. 378 Ibid.: p. 340. 6 . 4 . 5. 1 Modern Penal Jurisprudence Saturated with Natural Law
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