implies that an action may be criminal regardless of whether it is so defined by the penal code itself.383 In fact, what the doctrine of illegality expressly argues is that the mere fact that an act is prohibited by law does not entail that it actually is illegal, neither that an act must be the subject of some prohibitive norm in order to be illegal.384 The fact that an action or omission are violations of a statute is something completely different from their status of illegality (this is especially so according to Binding).385 What this definition of illegality involves for the fundamentals of penal law, namely the principle nulla poena sine lege poenali, is obvious, since Binding’s point of departure allows the constructing jurist to deviate with impunity not only from the express rules of the penal code but also from the distinction drawn between lex lata and lex ferenda.This is because if the concept of illegality constitutes a precondition to the determination of the criminal status of an action, then an action can be criminal, albeit not penalized, or penal, albeit not illegal; so an action may be illegal and yet not illegal, and any construction of the norm is thus valid.To Hägerström, concepts that due to their construction are either self-contradictory or lead to contradictory conclusions are manifestly unscientific.386 Accordingly, his focus was upon the scientific problems that arose from the application of unreal concepts such as illegality. Hägerström’s conclusion is that it is nonsensical to use illegality as a necessary requisite to penal liability. In fact, illegality and legal duty constitute meaningless categories when deciding whether or not an act is punishable.These terms, rather than being necessary preconditions to penal liability, are in fact misleading expressions for the fact that a certain act according to legislation is either prohibited, that is, illegal, or allowed - for example, a duty p a r t v i , c h a p t e r 6 496 383 E.g., Hagströmer, Straffrätt 1, pp. 97-108; Reuterskiöld, Grunddragen, pp. 375-386. 384 E.g., Hagströmer, Straffrätt 1, pp. 97-108; Reuterskiöld, Grunddragen, pp. 375-386. 385 See Bjerre, Om rättstridighetsrekvisitet vid förtalsförbrytelserna, p. 15., who refers to pages 3, 5-8, 13, and 25-26 of the second edition, 1890, of Binding, Normen 1 (1916). 386 See Part II.
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