its logical place within the formal system of law, rather than a method by means of which the existence of a new legal entity can be inferred, or created, on account of the existence of another legal entity. From the point of view of legal politics, (the de lege ferenda perspective) a legal concept is limited to serve as a tool demonstrating that the formal system of law is incomplete or faulty and hence in need of revision or supplementation, that is to say, unless legal methodology provides the legal scholar with a solution. However, this was the exact problem of Sterzel’s analysis, because the principle of legality and the prohibition of analogies prohibited him from constructing new concepts of penal law in the extensive manner that he did.441 Hägerström is very clear in this respect, for instance, Sterzel’s extensive or analogous construction of the Swedish Penal Code 22:1, into entailing a penal duty for a contracting party to inform his counter part of any relevant matters that might affect the value of the object negatively, clearly falls outside the permissible. In private law such a duty, intended to deter such omissions of truth, might exist, but the existence of any such duty cannot by itself be used to construct a similar penal duty; a duty that can only be inferred from the penal provision itself (and on the contrary, demands that the fraudulent conduct in question is actively performed rather than being the effect of an omission of truth).442 Hägerström’s conclusion was that the existence of a contractual duty to inform one’s counter part of any factors that might effect negatively the value of the agreement, is a duty that cannot be inferred from the wording of the Penal Code (22:1).443 Hägerström’s interpretation of the relevant section of the code is literal, adhering strictly to the a ca l l f o r s c i e n t i f i c p u r i t y 515 7. 2 .2 arguments de Lege Ferenda and de Lege Lata 441 Ibid.: pp. 334-335. 442 Ibid.: p. 327. 443 Ibid.
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