in the general consciousness of law.12 This is the fountainhead of law, from which the “technical” sources emanate and derive their validity. But providing there exists no discrepancy between the general consciousness of law and its specific technical source, then one must assume that the technical source of the law in question constitute a proper concretization of the people’s ideas of justice,whereby its principles become law. On the matter of an internal hierarchy of validity or normativity between the various technical sources of law, Nordling expressly rejected the idea that such a hierarchy existed - on the contrary the technical sources of law constituted an organic legal totality.13 In fact, the technical sources of law are equal in normativity, but vary with regard to function and purpose in the fixation of the general consciousness of law.14 Since the law, to be more specific valid law(gällande rätt), constire cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 164 12 E.g. Reuterskiöld, Grunddragen af den allmänna rättsläran, pp. 84-160. But also Johan Hagströmer (1845-1910, professor of penal law) will serve as an example in this respect. According to Hagströmer, the sources proper of penal law are two: legislation and the general consciousness of law (“det allmänna rättsmedvetandet”). Of these, the latter is identical to the opinion/conviction (övertygelsen) that something not merely ought to be, but really is the law (gällande rätt), in such manner that the precept contained in the consciousness of law becomes a legal necessity as it would have been had the specific precept been legislated. (p. 39). However, the content of the general consciousness of law expresses itself technically by means of legal customs (rättssedvanor), court practice (rättspraxis) and legal science (rättsvetenskap), of which the first has lost practical importance in contemporary penal law, while the latter two constitute either or both circumstantial evidence and presumptions indicating the existence of a general legal opinion of positive law (pp.43-44). (Johan Hagströmer, Svensk straffrätt: föreläsningar 1, Uppsala, 1905, pp. 36-44.) In any case, just as it is the case for the Historical School, the general legal consciousness is the substratumof law in general, while legislation, legal customs, court practice and legal science, viewed from this perspective, constitute mere organs for this primordial source of law. In Carl Georg Björling’s textbook Lärobok i civilrätt för nybörjare (1st edition 1910, 20th edition 2007, Anders Agell.) the sources of private law are enumerated according to tradition, although the independent role attributed usually to the general consciousness of law in the establishment of law is not accorded great importance. (Carl Georg Björling, Lärobok i civilrätt för nybörjare, Lund, 1910, pp. 1-9.) 13 See Nordling, Svensk civilrätt, p. 27. 14 Ibid., pp.27-28. However,Nordling cannot accept the actual independence accorded to court practices and precedence as being compatible with Swedish law. A view that is truly “confusing” according to Hägerström. (Axel Hägerström, Till frå2.1.1. Hierarchy of Sources
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