In his analysis of jurisprudence, Hägerström makes the issue of legitimacy and authority his point of departure for his treatment of how the findings and conclusions of the scientific legal argumentation (doctrine) influence, as well as are influenced, by the material content (rules) and principles of legislation, case law, and customary law.448This observation can be compared with Hägerström’s definition of the relationship between induction and deduction, namely the relationship between material inferences and formal conclusions. Hägerström concludes that the academic scholar is just as fettered by the doctrine of sources and legal methodology in his analysis of law as any other group of lawyers.449 In order for jurists to bring about a material change in the law, they may rely on either legal or political arguments. In the Civil law tradition of continental Europe, the judicature’s mandate is restricted to the legal argument, whereby policy revision of law must find support in superior political authority. However, the mandate and authority of the legal scholar to prescribe binding new prescripts lex ferenda is even more restricted than it is for the judge, as the scholar has no mandate to alter the content of the law on any basis other than the persuasive strength of his scientific reasoning, while the scholar’s political authority is nonexistent. Hägerström proves this point in “Om svikligt förtigande såsom straffbart efter 22:1 SL”, where he concludes that the socalled constructive methods show themselves to be indefensible when subjected to philosophical scrutiny.450When the constructive method is related to its own premisses, then it proves itself to be incapable of fulfilling these demands of argumentative, and especially scientific, reasoning. p a r t v i , c h a p t e r 7 518 7. 3. 1 the authori ty of juri sprudence re stated: juri sprudence in ne ed of a new type of authori ty 448 Cf. Hägerström, “Svikligt förtigande,” pp. 316, 326-327, and 334-335. 449 Cf. Hägerström, “Begreppet gällande rätt,” pp. 88-91. 450 Hägerström, “Svikligt förtigande,” p. 335.
RkJQdWJsaXNoZXIy MjYyNDk=