unconscious sophistry.437 This in turn can also have the effect that the construction itself hinders any useful and just application of the norm.This was a criticism Hägerström stressed, that was not aimed at the author, Sterzel, but at the prevalent opinions of jurisprudence, which made such sophistic constructions permissible.438 See also Part VI, Chapter 3.1, for the scientific status of similar constructions of private law, such as the “declaration of intention”. In “Om svikligt förtigande såsom straffbart efter 22:1 SL,” Hägerström concludes that fraudulent non-disclosure cannot constitute a doctrinaire concept of penal law, because if this concept were to be subjected to a logical analysis it would have to be assigned to private law rather than to penal law, and as such a category, the consequences of fraudulent non-disclosure ought to be indemnificatory rather than penal.439 If we keep Sterzel’s ideas in mind (that fraudulent non-disclosure is on a par with active fraud), Hägerström’s conclusion is that the legal concepts themselves cannot create new rules of law by virtue of the existence of these concepts themselves. For such a creative or constructive use of deduction would constitute a violation of the laws of thought and logic, which are laws that only allow deduction to conclude what us implied in the premiss rather than extend the application of the premiss (consequently Sterzel’s results are judged to be philosophically and jurisprudentially, as well as legally invalid).440 Hence, any assignment of the jurisprudential deduction is thus of classificatory nature, that is, one that determines and assigns a legal concept, a rule, or a case p a r t v i , c h a p t e r 7 514 437 Ibid.: p. 335. 438 Ibid. 439 Cf. Hägerström, “Svikligt förtigande,” pp. 314, 318, and 330-332. 440 Cf. Ibid., pp. 320-325, where Hägerström discusses the invalid joining and synthesis of the prerequisites for punishment, omission, and commission, that Sterzel wished to perform. 7. 2 .1 juri sprudent ial deduct ion
RkJQdWJsaXNoZXIy MjYyNDk=