(all depending upon the circumstances).387 Illegality is thus the opposite of duty. If the jurisprudentially untenable idea of a fictitious reality referring to those commands and prohibitions issued by a personally commanding legal order is actually embraced, then the imposition of coercive reactions is the corollary that necessarily follows upon a legal subject’s disobedience to a rule.388 In other words, the existence of the coercive reaction is itself perceived as being the corollary to disobedience. If that is the case, then one must ask: Disobedience to what? For while the coercive measure, the legal norm, itself constitutes the precondition to illegality, one simultaneously plays about with a concept of illegality, which in turn constitutes the precondition to the coercive measure, that is to say, the precondition to the legal norm itself. Hence, illegality alone cannot be a prerequisite for penal sanctions, punishment, and criminal responsibility, for in reality illegality is characterized by the particular coercive sanction.389 The customary use of the term illegality is in fact tautological, as it merely reiterates what the penal statutes themselves ordain, insofar as we are discussing the actually penalized aspects of an action.390 However, to restrict the illegality discourse to the penalized aspect of an action, according to the prevailing doctrine, is to restrict it too far, as the term illegality in penal law encompasses considerations that transcend the express provisions of the penal code itself.391 Hägerström was well aware of this, which his initial remarks indicate, because if the moral dimension is set aside, then illegality is reduced to those actions or omissions that according to the laws of the land are subject to coercive sanca ca l l f o r s c i e n t i f i c p u r i t y 497 387 Hägerström, “Principundersökning,” p. 209; “Fundamental Problems,” p. 348. 388 Hägerström, “Principundersökning,” pp. 210 and 215-220;“Fundamental Problems,” pp. 349-351. 389 Hägerström, “Principundersökning,” pp. 209-210; “Fundamental Problems,” pp. 348-350. 390 Hägerström, “Principundersökning,” p. 209; “Fundamental Problems,” p. 348. Cf. Hägerström, “Naturrätt?,” pp. 340-341. 391 See, e.g., Hagströmer, Straffrätt 1, pp. 97-108; Bjerre, Om rättstridighetsrekvisitet vid förtalsförbrytelserna, pp. 1-10 and 20; Reuterskiöld, Grunddragen, pp. 375-386.
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