the decisions and solutions of valid law by means of which the legislator, in some mystical manner, wishes and wants just that which the jurisprudents and judges, or other legal authorities have concluded to constitute law, as well as the ability to perform the above-mentioned stratagems regardless of whether or not the decision, verdict, or conclusion delivered by the jurist actually conforms to positive law.539 Apart from being logically and cognitively problematic, the assumptions of the will-theory also involve legally unacceptable consequences, because the will-theory ordains that a materially wrong verdict, as soon as it becomes res judicata also becomes a true expression of the legislator’s will. Consequently, the will of the legislator wishes, or wills this specific verdict, and does so despite the fact that the latest verdict contradicts all previous expressions of the legislator’s will, and thus the materially wrong verdict becomes valid law and possibly positive law too.540 The corollary is that positive law (understood as being an expression of the legislator’s will) now must be said to both will and not will a specific rule of case law.541 To what extent the will-theory has hereby clarified the status of non-statute law in relation to the status of statute law still remains a mystery. In the will-theory, the legislative will of the will-theory, apart from being an omnipotent will, also constitutes an explanation as to why non-statute law (custom, judicial practice, and doctrine) is considered to be positive law as well as why valid law acquires validity at all.542 Consequently, the will-theory’s doctrine of sources postulates the existence of both a formal and a material hierarchy of validity between the different sources of law. This, however, is not the case in reality. On the contrary, statute law and the constitution itself may both be abrogated through a ca l l f o r s c i e n t i f i c p u r i t y 549 539 Hägerström, Objektiva rättens begrepp, pp. 154-162;“The Notion of Law,” pp. 240-250. 540 Hägerström, “Är gällande rätt?,” p. 92; “Is Positive Law?,” pp. 51-52. 541 Ibid., pp. 88-89; Hägerström, Objektiva rättens begrepp, pp. 154-157; “The Notion of Law,” pp. 240-243. 542 Hägerström, “Är gällande rätt?,” pp. 88-89; “Is Positive Law?,” pp. 47-48; Objektiva rättens begrepp, pp. 154-157; “The Notion of Law,” pp. 240-243.
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