creant), is justified, by which means an evil per se, namely punishment and retribution, is transformed into a universal good. For instance, this is the case if the justification of the punishment is derived from a positive command of the state referring to the intrinsic illegality of an action or omission, whereby these doctrines of jurisprudence demonstrate their primary function, namely to lend the state’s exercise of power legitimacy rather than serving as apolitical scientific explanations of facts and as concepts compiling facts. One additional effect of these doctrines is that they justify the hierarchical structure of law and legal power. And since the doctrine of illegality’s primary function is openly political (insofar as the doctrine manifestly makes a distinction between what is intrinsically illegal and that which is punishable according to law) it has therefore ceased to function as a scientific instrument (that is, ceased objectively to describe facts within a certain region and ceased to induce general principles from these facts).412 To sum up, each of the above-mentioned doctrines are, on the contrary, legal facts lacking support in positive law, for each of them must transcend the rules and principles of positive law for their verification - the facts that they rest upon are in fact only possible to construe if one disregards the content of positive law. p a r t v i , c h a p t e r 6 506 412 See, e.g., Hägerström,“Begreppet viljeförklaring,” p. 99;“Declaration of Intention,” p. 299.
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