judicial practice, and jurisprudence - had the authority of law.537 One consequence of the will-theory is that only legislation prima facie has the status of law, as legislation is the only source of law that directly derives its authority from the ultimate law-giver, the legislator. But since it is logically possible that non-statute law may gain its normative authority on grounds other than statute law (which is a source of law that gains its authority from the supreme political authority of the land in the form of the legislator's will), one can discuss the problem of the authority of non-statute law from a methodological rather than from an ontological perspective. Non-statute law, for example, may base its legal authority upon its internal authority, the quality of the argumentation that the principle or doctrine rests upon (this is especially the case regarding jurisprudence and judicial practice, but it also applies, albeit to a lesser extent, with regard to customary law) rather than on its external authority (for example, its conformity to political or other external standards).538 And with respect to the massive and penetrating critique to which Hägerström subjected jurisprudence, it is safe to assume, much in accordance with the theories of the Historical School (especially the ideas of Puchta), that he was of the opinion that jurisprudence based its authority as a source of law primarily upon its internal authority, the inner validity, argumentative quality and scientific character of the argumentation, rather than on any other circumstance. (See Part VII, Chapter 2). According to Hägerström’s analysis of the will-theory, it is, in essence the mystical will of the legislator that explains why legal conclusions and findings derived from positive law acquire and retain legal validity. In addition, the will-theory provides the will of the legislator with a proactive nature; the ability to anticipate p a r t v i , c h a p t e r 8 548 537 Hägerström, “Är gällande rätt?,” pp. 82-89 and 92-94; “Is Positive Law?,” pp. 41-48 and 51-54. 538 Cf. Puchta, Gewohnheitsrecht I, pp. 133-148; Gewohnheitsrecht II, pp. 14-21. N.B. Puchta, however, does not endow customary law proper with any internal authority.
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