in the sources of law (legislation), but that also contravened the formal and material principles of positivistic penal jurisprudence, namely the doctrine of legality, the doctrine of sources, and the doctrine of intent (Swedish: uppsåtsläran).463 Third, that Sterzel’s method, the so-called constructive method, was beset with weaknesses that seriously undermined the tenability of his conclusions.464 Finally, that these problems are possible to trace back to their roots, the imperative-theory of law, which is a theory of law that deprives legislative interpretation of a solid guiding principle, and its related school of jurisprudence, namely constructive jurisprudence.465 In short, Sterzel’s constructions involved the idea that the causality between fraudulent misconduct, in its capacity of a legal fact, and the punishment for fraudulent misconduct, in its capacity of a legal consequence following fraudulent misconduct, had been distorted, insofar as the punishment for fraudulent conduct had been causally connected to a new and, according to the provisions of the Swedish Penal Code, legally unrelated legal fact, namely the “crime” of fraudulent non-disclosure. The main point of Hägerström’s analysis was to demonstrate three very damning characteristics of the so-called constructive method: first, the gratuitous and capricious character of its conclusions; second, the sophistry of its argumentation; and third, its scientific invalidity.466 Thus, it is the formal aspects of the scientific argumentation that need to be investigated. In addition, Hägerström investigated what defects of form had on the validity of the formal system of law and the tenability of the doctrines of jurisprudence. He had no scientific objections to the material content of positive law, neither did he with respect to the material content of the jurisprudential will-theory (which is a theory founded upon statute law) nor to the prohibition of analogies a ca l l f o r s c i e n t i f i c p u r i t y 523 463 Hägerström, “Svikligt förtigande,” pp. 328-331 and 334-335. 464 Ibid.: pp. 317, 326-327, and 334-335. 465 E.g., ibid.: p. 325 and 335. 466 Ibid.: pp. 317, 326-327, and 334-335.
RkJQdWJsaXNoZXIy MjYyNDk=