II
The Concept of Law
1. Central Elements
The question is this: Which concept of law is correct or
adequate? An answer to the question turns on the relation
of three elements to one anotherauthoritative issuance,
social efficacy, and correctness of content. Altogether differ-
ent concepts of law emerge according to how the relative
significance of these elements is assessed. Attaching no signifi-
cance whatsoever to authoritative issuance and social efficacy,
focusing exclusively on correctness of content, one arrives at a
concept of law purely reflective of natural law or the law of
reason. One arrives at a purely positivistic concept of law by
ruling out correctness of content altogether and staking every-
thing on authoritative issuance and/or social efficacy.
Between these extremes, many intermediate forms are pos-
sible.
The tripartite division indicates that positivism has two
defining elements. A positivist must exclude the element of
correctness of content, but then can define in many different
ways the relation between the elements of authoritative issu-
ance and social efficacy, giving rise to numerous variations of
legal positivism. I look first at the differing versions and then
criticize positivistic concepts of law as inadequate.
2. Positivistic Concepts of Law
Not only is it possible to combine the elements of social
efficacy and authoritative issuance in different ways, it is
possible to interpret them very differently, too. Because of
this, the variety of positivistic concepts of law is wellnigh
unlimited. These can be divided into two main groups: con-
cepts of law that are primarily oriented toward efficacy and
those that are primarily oriented toward issuance. The quali-
fier `primarily' should make it clear that, as a rule, a given
orientation represents simply the main focus, meaning that
the other element is not being altogether excluded.
A. Primarily Oriented toward Efficacy
Definitions of law that are oriented toward efficacy are usu-
ally found in the realm of sociological and realist legal theor-
ies. What distinguishes one definition from another is whether
the focus is on the external or the internal aspect of a norm or
a system of norms. Here too, in most cases, the distinction
reflects relative significance, not a strict dichotomy. And, in
addition, there are frequently combinations of external and
internal aspects.21
(i) External Aspect
The external aspect of a norm consists in the regularity of
compliance with the norm and/or the imposition of a sanction
21
An example of a combination of the external with the internal aspect is
found in Alf Ross, Of Law and Justice, trans. Margaret Dutton (London:
Stevens & Sons, 1974), at 73 4.
for non-compliance. What counts is observable behaviour,
even that requiring interpretation, and the main thrust of
sociological definitions of law focuses there. Examples are the
definitions of Max Weber and Theodor Geiger. Weber writes:
A system is to be called . . . law if it is externally guaranteed by the
possibility of (physical or psychic) coercion through action aimed at
enforcing compliance or punishing violation, the action of a staff of
persons expressly geared to this task.22
Geiger's definition reads:
What law is, that is, the content that it seems to me practical to
characterize with the word `law', has already been explained in great
detail: the social system of a centrally organized, broadly inclusive
community, provided this system is based on a sanction-apparatus
implemented monopolistically by particular organs.23
Efficacy-oriented concepts of law that focus on the external
aspect are also found in legal philosophy, especially in prag-
matic instrumentalism or legal realism. A famous example is
the predictive definition of Oliver Wendell Holmes:
The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law.24
22
Max Weber, Law in Economy and Society, trans. Max Rheinstein, in
Weber, Economy and Society (1st pub. 1922), ed. Guenther Roth and Claus
Wittich (Berkeley and Los Angeles: University of California Press, 1978),
pt. I, ch. 1, sect. 6 (p. 34) (emphasis in original) (trans. altered). In its details,
Max Weber's sociological concept of law is far more complex than the
quotation would suggest. Here, however, as with the other examples of
definitions, we are concerned simply with the basic idea. For a more
detailed account of Weber's concept of law, see Fritz Loos, Zur Wert- und
Rechtslehre Max Webers (Tubingen: J. C. B. Mohr, 1970), at 93112.
23
Theodor Geiger, Vorstudien zu einer Soziologie des Rechts (1st pub.
1947), 4th edn., ed. Manfred Rehbinder (Berlin: Duncker & Humblot,
1987), 297.
24
Oliver Wendell Holmes, `The Path of the Law', Harvard Law Review,
10 (18967), 45778, at 461, repr. in Holmes, Collected Legal Papers (New
York: Harcourt, Brace and Howe, 1920), 167202, at 173. See Robert
S. Summers, Instrumentalism and American Legal Theory (Ithaca, NY:
Cornell University Press, 1982), at 11635.
The Concept of Law 15
Definitions of this kind are addressed primarily to the per-
spective of the lawyer.
(ii) Internal Aspect
The internal aspect of a norm consists in the motivation
however generatedfor compliance with the norm and/or for
application of the norm. What counts are psychic dispo-
sitions, and one example of a definition with that focus is
Ernst Rudolf Bierling's, where the concept of recognition
plays a central role:
Law in the juridical sense is generally everything that human beings
who live together in some community or another mutually recognize
as norm and rule of their life together.25
Niklas Luhmann provides another variant of a legal defin-
ition in which an essential role is played by the internal aspect,
here in the form of a normative expectation of behaviour:
We can now define law as structure of a social system, a structure
based on the congruent generalization of normative expectations of
behaviour.26
B. Primarily Oriented toward Issuance
Concepts of law that are oriented toward issuance are usually
found in analytical legal theory, that is, in that branch of legal
theory where the first concern is the logical or conceptual
analysis of the jurist's participation in the law. While it is
the observer's perspective that is dominant in concepts of
law oriented toward efficacy, it is the participant's perspec-
25
Bierling, Ernst Rudolf, Juristische Prinzipienlehre, vol. 1 (Freiburg i.
Br. and Leipzig: J. C. B. Mohr, 1894, repr. Aalen: Scientia, 1979), 19.
26
Niklas Luhmann, A Sociological Theory of Law, trans. Elizabeth King
and Martin Albrow (London: Routledge & Kegan Paul, 1985), 82
(emphasis omitted) (trans. altered).
16 The Argument from Injustice
tivein particular, the judge'sthat is foremost in concepts
of law oriented toward issuance.
A classic example of a concept of law oriented toward
issuance is found in the work of John Austin. According to
Austin, the law is composed of commands:
Every law or rule . . . is a command.27
A command is defined as being armed with a sanction:
A command is distinguished from other significations of desire, not
by the style in which the desire is signified, but by the power and the
purpose of the party commanding to inflict an evil or pain in case
the desire be disregarded.28
Not every command, but, rather, only the command of a
politically superior authority is law:
Of the laws or rules set by men to men, some are established by
political superiors, sovereign and subject: by persons exercising
supreme and subordinate government, in independent nations, or
independent political societies . . . To the aggregate of the rules thus
established, or to some aggregate forming a portion of that aggre-
gate, the term law, as used simply and strictly, is exclusively
applied.29
Summarizing, one can say that Austin defines the law as the
totality of a sovereign's commands armed with sanctions.
While a stronger orientation toward issuance is scarcely pos-
sible, elements of efficacy also play a not unimportant role in
Austin's theory. Thus, in defining the sovereign as someone
who is customarily obeyed, Austin combines the element of
issuance with the element of efficacy:
If a determinate human superior, not in a habit of obedience to a
like superior, receive habitual obedience from the bulk of a given
society, that determinate superior is sovereign in that society . . .30
27
Austin, Province 13; Austin, Lectures vol. 1, 88 (emphasis omitted).
28
Austin, Province 14; Austin, Lectures vol. 1, 89.
29
Austin, Province 11; Austin, Lectures vol. 1, 867 (emphasis omitted).
30
Austin, Province 194; Austin, Lectures vol. 1, 221 (emphasis omitted).
The Concept of Law 17
The most significant twentieth-century representatives of
issuance-oriented legal positivism are Hans Kelsen and
H. L. A. Hart. Kelsen defines the law as a `normative coercive
order'31
whose validity rests on a presupposed basic norm
according to which one ought to comply with a constitution actually
issued and by and large efficacious, and therefore ought also to
comply with norms actually issued in accordance with this consti-
tution and themselves by and large efficacious.32
The status of Kelsen's basic norm will be considered below.33
Here it suffices to note that the basic norm is an altogether
content-neutral norm that is only imagined or thought, a
norm, according to Kelsen, that must be presupposed if
one's aim is to interpret a coercive system as a legal system.
What is of significance here is simply that Kelsen's definition,
while it is indeed primarily oriented toward issuance, also
includes the element of efficacy:
In the basic norm, issuance and efficacy are made a condition for
validityefficacy in the sense that it must be added to issuance so
that the legal system as a whole, as well as an individual legal norm,
not forfeit its validity.34
According to Hart, the law is a system of rules that are
identified by appeal to a rule of recognition.35
While the
function of Hart's rule of recognition corresponds to that of
Kelsen's basic norm, its status is altogether different, some-
thing to which I return below.36
Its existence is a social fact:
[T]he rule of recognition exists only as a complex, but normally
concordant, practice of the courts, officials, and private persons in
identifying the law by reference to certain criteria. Its existence is a
matter of fact.37
31
See Kelsen, PTL, at § 6(c) (pp. 4450).
32
See ibid. § 34(g) (at p. 212) (trans. altered).
33
See below, this text, at 96116.
34
Kelsen, PTL § 34(g) (at p. 212) (trans. altered).
35
(This sentence of the original text has been modified by the author.)
36
See below, this text, at 1213.
37
Hart, CL 107, 2nd edn. 110.
18 The Argument from Injustice
Hart formulates a pivotal point of the rule of recognition for
the English legal system: `[W]hat the Queen in Parliament
enacts is law.'38
38
Hart, CL 104, 2nd edn. 107.
The Concept of Law 19
3. Critique of Positivistic Concepts
of Law
This brief look at positivistic concepts of law shows that very
different positions are represented within the field known as
legal positivism. The only thing common to all of them is the
thesis of the separation of law and morality. If the positivistic
separation thesis were certainly correct, analysis of the con-
cept of law could be completely confined to the questions of
what the best interpretation is of the elements of efficacy and
issuance and how the relation between the two elements is best
understood. The Federal Constitutional Court decisions
sketched above, however, show that the separation thesis
can at least be regarded as less than obvious. So the question
becomes whether a positivistic concept of law as such is
adequate in the first place, and that depends on whether it is
the separation thesis or the connection thesis that is correct.
A. Separation Thesis and Connection Thesis
The separation thesis and the connection thesis tell us how the
concept of law is to be defined. They formulate the result of a
line of reasoning without giving voice to the arguments
behind it. The supporting arguments can be divided into two
groups: analytical and normative.39
39
One might think of a third group of arguments, namely, empirical
arguments. On closer inspection, however, one sees that, where the concept
of law is being defined in terms of either the separation thesis or the
connection thesis, empirical arguments become components of analytical
or normative arguments. It is an empirical thesis that a legal system that
The most important analytical argument for the positivistic
separation thesis is that there is no conceptually necessary
connection between law and morality. Every positivist must
defend this thesis, for if it is granted that a conceptually
necessary connection between law and morality does exist,
then it can no longer be said that the definition of law is to
exclude moral elements. By contrast, the non-positivist is free
in arguing at the analytical level. He can either claim a con-
ceptually necessary connection or not. If he succeeds in spell-
ing out a conceptually necessary connection, he has settled the
debate in his favour. If he fails in spelling out or does not
claim a conceptually necessary connection, he has not yet lost
the debate. He can appeal to normative arguments in
attempting to support his thesis that the definition of the
concept of law is to incorporate moral elements.
It is a normative argument that supports the separation
thesis or the connection thesis when it is stated that, to attain
a certain goal or to comply with a certain norm, it is necessary
to exclude or to include moral elements in the concept of law.
A separation or a connection justified in this way may be
called `normatively necessary'.40
It is a normative argument,
for example, when it is stated that only the separation thesis
protects neither the life nor the liberty nor the property of any legal subject
has no prospect of long-term validity. But the protection of life, liberty, and
property is also a moral requirement. Thus it can be said that the satisfac-
tion of certain minimum moral requirements is factually necessary for the
long-term validity of a legal system. The empirical argument leads to
precisely this point and no further. The bridge to the concept of law is
inserted into an analytical argument that says that, for conceptual reasons,
only systems having long-term validity are legal systems. By contrast, there
is an insertion into a normative argument when, for example, the empirical
thesis that certain goals like survival can be attained only if the law has a
certain content, coupled with the normative premiss that this goal ought to
be attained, is adduced as an argument for a certain definition of law.
40
Normative necessity is strictly to be distinguished from conceptual
necessity. That something is normatively necessary means nothing other
than that it is commanded. One can, without contradicting oneself, chal-
lenge the validity of a command but not the existence of a conceptual
necessity. It is clear that only in a broader sense, then, is normative necessity
a necessity.
The Concept of Law 21
leads to linguistic and conceptual clarity or guarantees legal
certainty, or when it is established that the problems of statu-
tory injustice can best be resolved with the help of the connec-
tion thesis.
In recent debates about the concept of law, the prevailing
view has been that the expression `law' is so ambiguous, so
vague, that nothing in the debate about legal positivism can
be settled by means of conceptual analysis,41
that what is at
stake here is simply `a normative determination, a definitional
postulate'.42
This kind of concept formation can, by defin-
ition, only be justified by normative arguments or consider-
ations of expediency, a thesis presupposing the thesis that a
connection between law and morality is neither conceptually
impossible nor conceptually necessary. The first part of this
presupposed thesis is correct, that is, the claim that a connec-
tion between law and morality is not conceptually impossible.
In some contexts there is no contradiction in a sentence like:
`The norm N is authoritatively issued and socially efficacious
but not law, for it violates fundamental principles.' Such a
sentence would have to be contradictory, however, if a con-
nection between law and morality were conceptually impos-
sible. The second part of the thesis, on the other hand, is
doubtfulthat is, the claim that there is no conceptually
necessary connection between law and morality. Indeed, in
what follows, just such a connection will be shown to exist.
And if this showing is successful, then the prevailing view is
incorrect, the view, namely, that the debate surrounding the
concept of law turns exclusively on an expediential decision
that can only be justified by normative arguments. I do not
mean to suggest that in the discussion on the concept of law,
normative considerations have no role to play. The concep-
tual argument will prove to be limited both in range and in
force; and beyond that range, as well as to strengthen the
conceptual argument, normative arguments are necessary.
41
See Ott, Der Rechtspositivismus (n. 4 above), at 14253.
42
Hoerster, VR 2481.
22 The Argument from Injustice
The thesis runs: first, there is a conceptually necessary con-
nection between law and morality, and, second, there are
normative arguments for including moral elements in the
concept of law, arguments that in part strengthen and in
part go beyond the conceptually necessary connection. In
short, there are conceptually necessary as well as normatively
necessary connections between law and morality.
B. A Conceptual Framework
The thesis that there are conceptually necessary as well as
normatively necessary connections between law and morality
will be substantiated within a conceptual framework consist-
ing of five distinctions.43
(i) Concepts of Law Omitting Validity and
Embracing Validity
The first distinction is between concepts of law that omit
validity and those that embrace validity. The former is a
concept of law that does not include the concept of validity,
the latter, a concept of law that does.44
It is easy to see that
there is occasion for making this distinction. One can say
without contradiction, `N is a legal norm, but N is not (is no
longer, is not yet) valid.' And, imagining an ideal legal system,
one can remark without contradiction, `This legal system will
never be valid.' Conversely, in appealing to valid law, one
need not speak of validity; one can simply say, `This is
required by law.' Thus, both are clearly possible: a concept
of law that includes the concept of validity, as well as a
concept of law that does not include the concept of validity.
43
See Robert Alexy, `On Necessary Relations between Law and Mor-
ality', Ratio Juris, 2 (1989), 16783.
44
See Hermann Kantorowicz, The Definition of Law, ed. A. H. Camp-
bell, with an introduction by A. L. Goodhart (Cambridge: Cambridge
University Press, 1958), at 1620.
The Concept of Law 23
For the discussion of positivism, it is well to select a concept
of law that includes the concept of validity. What can be
avoided thereby is trivializing the problem by first ignoring
the dimension of validity and defining the law as a class
of norms, say, for external behaviour,45
in order to argue,
then, that because it is possible to imagine the content of
norms for external behaviour being anything whatsoever,
there can be no conceptually necessary connection between
law and morality. Incorporating into the concept of law the
concept of validity means including in the concept of law
the institutional context of lawmaking, law application, and
law enforcement, a context that can be of significance on the
question of a conceptually necessary connection between law
and morality.
(ii) Legal Systems as Systems of Norms and as
Systems of Procedures
The second distinction is between the legal system as a system
of norms and the legal system as a system of procedures.46
As
a system of procedures, the legal system is a system of pro-
cesses or actions based on and governed by rules, actions by
means of which norms are issued, justified, interpreted,
applied, and enforced. As a system of norms, the legal system
is a system of results or products of norm-creating proce-
dures, whatever the origin or character of these procedures.
One can say that to regard the legal system as a system of
45
See Ralf Dreier, `Neues Naturrecht oder Rechtspositivismus?'
Rechtstheorie, 18 (1987), 36885, at 3745.
46
On the legal system as a system of procedures, see Robert Alexy, `Die
Idee einer prozeduralen Theorie der juristischen Argumentation', in MEA
17788, at 1858, repr. in Alexy, Recht, Vernunft, Diskurs. Studien zur
Rechtsphilosophie (Frankfurt: Suhrkamp, 1995), 94108, at 1048. Lon
L. Fuller's distinction between `the purposive effort that goes into the
making of law and the law that in fact emerges from that effort', Fuller,
The Morality of Law, rev. edn. (New Haven: Yale University Press, 1969),
193, may well approach the distinction between norm and procedure intro-
duced here.
24 The Argument from Injustice
norms is to refer to its external side, whereas to regard it as a
system of procedures is to refer to its internal side.
(iii) Observer's and Participant's Perspectives
The third distinction is between the observer's perspective and
the participant's perspective. This dichotomy is ambiguous,
and the interpretation here is as follows. The participant's
perspective is adopted by one who, within a legal system,
participates in disputation about what is commanded, forbid-
den, and permitted in this legal system and to what end this
legal system confers power. At the centre of the participant's
perspective stands the judge. When other participantssay,
legal scholars, attorneys, or interested citizensadduce argu-
ments for or against certain contents of the legal system, they
refer in the end to how a judge would have to decide if he
wanted to decide correctly. The observer's perspective is
adopted by one who asks not what the correct decision is in
a certain legal system, but, rather, how decisions are actually
made in a certain legal system. An example of this kind of
observer is Norbert Hoerster's white American, who, wanting
to travel with his African-American wife in South Africa,
where apartheid laws prevailed at the time, reflected on legal
particulars of his trip.47
The distinction between the participant's perspective and
the observer's perspective is related to H. L. A. Hart's distinc-
tion between internal and external points of view.48
Corres-
pondence in every respect, however, is out of the question, if
for no other reason than the ambiguity of Hart's distinction.49
Therefore, this proviso: Whenever I speak of an internal and
an external standpoint without further elucidation, I mean
precisely what I have defined above as the participant's per-
spective and the observer's perspective.
47
Hoerster, VR 2481.
48
Hart, CL 867, 2nd edn. 8890.
49
See Neil MacCormick, Legal Reasoning and Legal Theory (Oxford:
Clarendon Press, 1978), at 27592.
The Concept of Law 25
(iv) Classifying and Qualifying Connections
The fourth distinction refers to two different kinds of connec-
tion between law and morality. I shall call the first `classify-
ing', the second `qualifying'. A classifying connection is
reflected in the claim that norms or systems of norms that
do not meet a certain moral criterion are, for either concep-
tual or normative reasons, not legal norms or legal systems.
A qualifying connection is reflected in the claim that norms or
systems of norms that do not meet a certain moral criterion
can indeed be legal norms or legal systems, but, for either
conceptual or normative reasons, are legally defective legal
norms or legal systems. What is crucial is that the asserted
defect is a legal defect and not simply a moral defect. Argu-
ments addressed to qualifying connections are based on the
assumption that necessarily legal ideals are contained within
the reality of a legal system. Thus, instead of a `qualifying'
connection, one could also speak of an `ideal' connection.
(v) Conceptually Necessary and Normatively
Necessary Connections
In addition to these four distinctionsbetween a concept of
law that omits validity and one that embraces validity,
between norm and procedure, between observer and partici-
pant, and between classifying and qualifying connections
there is the distinction, introduced above, between a conceptu-
ally necessary and a normatively necessary connection. With
these five distinctions, the conceptual framework is complete.
(vi) Combinations
The framework makes it clear that very different meanings
can be attached to the thesis that a necessary connection exists
between law and morality. Within the framework, there are
thirty-two possible combinations of the components of the
26 The Argument from Injustice
five distinctions. For each combination, both the thesis that a
necessary connection exists, as well as the thesis that a neces-
sary connection does not exist, can be formulated. There
emerge, then, sixty-four theses altogether. Now, among
these, there are certainly a number of implicative relations,
which is to say that the truth or falsity of some of the theses
implies the truth or falsity of others. And it may be that some
combinations are conceptually impossible. That changes
nothing, however, in the fundamental insight that a multitude
of different claims are made in the debate about necessary
connections between law and morality. One explanation for
the inconclusiveness of this debate may be that the respective
debaters often fail to recognize that the thesis they are
defending is altogether different in kind from the thesis they
are attacking, with the result that they are talking at cross
purposes with one another. This explanation seems even
more plausible when one considers that alongside the five
distinctions in play here, further distinctions are imaginable,
so that the number of possible theses could swell well beyond
sixty-four.
In one respect, the large number of possible theses has
already been reduced here, namely, in that our point of
departure is a concept of law that includes the concept of
validity. Simplifying things further is our emphasis on one
distinction, the distinction between the observer's perspective
or external standpoint and the participant's perspective or
internal standpoint. It is within the framework of this dichot-
omy that the other distinctions come into play. The question,
then, is whether the separation thesis or the connection thesis
is correct from the observer's perspective or from the partici-
pant's perspective.
C. The Observer's Perspective
The problem of legal positivism is discussed for the most part
as the problem of a classifying connection between law and
The Concept of Law 27
morality. One asks whether contravention of some moral
criterion or another exacts from the norms of a system of
norms the character of legal norms, or from the whole system
of norms the character of a legal system. If one aims to answer
this question in the affirmative, one must show that legal
character is forfeited when norms or systems of norms cross
a certain threshold of injustice (Unrecht). It is precisely this
thesis that I shall call the `argument from injustice', the thesis,
namely, of forfeiting legal character by crossing a certain
threshold of injustice, however that threshold is to be deter-
mined.50
The argument from injustice is nothing other than
the connection thesis focused on a classifying connection. It
should be asked here, first of all, whether the connection
thesis in the form of the argument from injustice is correct
from the observer's perspective, an enquiry in which individ-
ual norms of a legal system are to be distinguished from the
legal system as a whole.
(i) Individual Norms
Probably the best-known version of the argument from injust-
ice applied to individual norms stems from Gustav Radbruch,
whose famous formula reads:
The conflict between justice and legal certainty may well be resolved
in this way: The positive law, secured by legislation and power,
takes precedence even when its content is unjust and inexpedient,
unless the conflict between statute and justice reaches such an
intolerable degree that the statute, as `lawless law', must yield to
justice.51
This formula is the basis for the decision on citizenship set out
above,52
as well as for a number of other decisions of the
50
Dreier, `Der Begriff des Rechts' (n. 5 above), 99. Other names are the
argument from tyranny, the lex corrupta argument, the argument from
perversion of law, the argument from totalitarianism.
51
Radbruch, GUR 107, RGA 3 89.
52
BVerfGE 23 (1968), 98, at 106. See above, this text, at 57.
28 The Argument from Injustice
Federal Constitutional Court and the Federal Supreme Court
of Germany.53
Is Radbruch's formula acceptable from the standpoint of
an observer? Once again, our example is Ordinance 11 of
25 November 1941, by means of which emigrant Jews were
stripped of German citizenship on grounds of race. In the
related decision discussed above, the Federal Constitutional
Court appealed to Radbruch's formula in holding Ordinance
11 to be null and void. This represents the participant's per-
spective. How would the case of the denaturalized Jew, call
him `A', be described by a contemporary observer of the
National Socialist legal system, say, a jurist from abroad
who is writing a report for a law journal back home on the
legal system of National Socialism? Everyone back home
would understand, without further elucidation, the jurist's
statement,
(1) A has been deprived of citizenship according to
German law.
That is not the case with the statement,
(2) A has not been deprived of citizenship according to
German law.
If no further information is given, this statement either
informs incorrectly or creates confusion.
This shows that from the external standpoint of the obser-
ver, the inclusion of moral elements in the concept of law is at
any rate not conceptually necessary. Rather, there is occasion
to ask whether, from this standpoint, such an inclusion is
conceptually impossible. Assume that the report of our obser-
ver contains the following statement:
(3) A has not been deprived of citizenship according to
German law, although all German courts and officials
53
See BVerfGE 3 (1954), 58, at 119; ibid. 225, at 233; ibid. 6 (1957), 132,
at 198; ibid. 309, at 332; ibid. 389, at 41415; ibid. 54 (1981), 53, at 678;
BGHZ 3 (1951), 94, at 107; ibid. 23 (1957), 175, at 181; BGHSt 2 (1952),
173, at 177; ibid. 234, at 2389; ibid. 3 (1953), 357, at 3623.
The Concept of Law 29
treat A as denaturalized and support their action by
appeal to the literal reading of a norm authoritatively
issued in accordance with the criteria for validity that
are part of the legal system efficacious in Germany.
This statement, as the statement of an observer, contains a
contradiction. From the standpoint of an observer, the law
includes whatever courts and officials do when they support
their action by appeal to the literal reading of norms authori-
tatively issued in accordance with the criteria for validity that
are part of the currently efficacious legal system. Thus it is
clear that in the observer's perspective, the expression `law'
can be used in such a way that, as applied to individual norms,
not only is a classifying inclusion of moral elements in the
concept of law not conceptually necessary, it is also conceptu-
ally impossible. There is no adequate rejoinder here in coun-
tering that our observer can conclude his report straightaway
by putting the open question,
(4) A has been authoritatively deprived of citizenship in
accordance with the criteria valid in Germany, and the
denaturalization is socially efficacious as well, but is it
law?
With this question, the position of the observer is abandoned
and that of the critic is adopted, a shift lending another
meaning to the expression `law'.54
For the record then:
From the perspective of an observer, Radbruch's connection
thesis cannot be supported by appeal to a conceptually neces-
sary connection between law and morality.
In addition to this conceptual or analytical argument, there
is, by way of an expediential consideration, a normative argu-
ment. Norbert Hoerster has claimed, first, that there is a need
for a value-neutral designation for authoritatively issued and
54
The change in meaning also applies to what is conceptually necessary
or analytically true. On the thesis that what is conceptually necessary or
analytically true is dependent on usage, see D. W. Hamlyn, `Analytic and
Synthetic Statements', in The Encyclopedia of Philosophy, ed. Paul Edwards
(New York: Macmillan and Free Press, 1967), vol. 1, 1059, at 108.
30 The Argument from Injustice
socially efficacious norms like Ordinance 11 discussed above,
and, second, that there is no useful alternative to the expres-
sion `law'.55
In terms of the observer's perspective, I agree
with this.56
Thus, analytical as well as normative consider-
ations lead to the conclusion that, from the standpoint of an
observer who looks at individual norms and enquires into a
classifying connection, the positivistic separation thesis is cor-
rect. Radbruch's argument from injustice is not acceptable
from this standpoint.
(ii) Legal Systems
What applies to an individual norm need not apply to a legal
system as a whole.57
The question, then, is whether a concep-
tually necessary connection exists between a legal system as a
whole and morality. The question is posed, again, from the
standpoint of an observer who enquires into a classifying
connection, that is, who wants to know whether the contra-
vention of some moral requirement or another exacts from a
system of norms the character of a legal system.
There are two kinds of moral requirement that can be
necessarily connected to the legal system: formal and material.
Fuller's theory of the internal morality of the law is an
example of a theory that claims a necessary connection
between formal moral criteria and the legal system. Fuller
includes the principles of legality, the generality of the law,
promulgation, and the prohibition of retroactive laws.58
By
contrast, the connection is between material moral criteria
and the legal system when Otfried Hoffe claims that a system
55
Hoerster, LR 187.
56
I do not endorse, however, the more general thesis that what is true of
the `exclusively externally descriptive' standpoint is also correct for all other
standpoints, Hoerster, LR 1878. Different concepts of law may well cor-
respond to different standpoints, and that they ought to do so will be shown
below.
57
Hart, PSLM 621, repr. Hart, Essays 78.
58
Fuller, The Morality of Law (n. 46 above), 4662.
The Concept of Law 31
of norms that does not meet certain fundamental criteria for
justice is not a legal system.59
Hoffe determines these funda-
mental criteria for justice through the principle of distributive
advantage, a principle including the principle of collective
security, which, inter alia, requires that a proscription of
murder and manslaughter, as well as of robbery and theft,
be addressed to all members of the legal community.60
In discussing these kinds of connection, one must clearly
distinguish between factual and conceptual connections.61
In
view of the present character of the world and of human beings,
it is a simple but important empirical fact that a legal system
containing no general norms, or only secret norms, or only
retroactive norms, or protecting neither the lives nor the liberty
nor the property of its subjects, has no chance of long-term
validity and, in this sense, a long-term existence. Rather than
pursuing this here, however, our question is whether such a
system still falls within the concept of the legal system.
There are two kinds of social order that, independently of
whether or not they can show long-term validity, are for
conceptual reasons alone not legal systems: senseless, and
predatory or rapacious orders. A senseless order exists when
a group of individuals is ruled such that consistent purposes
of the ruler or rulers are not discernible nor is a long-term
pursuit of a purpose by the ruled possible. Imagine a large
number of people who are subject to armed desperadoes. The
subjects have no rights, and among the desperadoes them-
selves, every exercise of force is allowed. Except for this
permissory norm, there is no general norm.62
The armed
59
Otfried Hoffe, Politische Gerechtigkeit (Frankfurt: Suhrkamp, 1987),
159, 170.
60
ibid. 16971.
61
Kelsen is aiming at a merely factual connection when he characterizes
a `minimum of collective security' as a `condition for relatively long-term
efficacy' but not as a necessary moral element of the concept of law. Kelsen,
PTL § 6(c) (p. 48) (trans. altered).
62
Here Kelsen would not even speak of a `robber band'. The desper-
adoes, lacking a proscription of the use of force among themselves, are not
a community and therefore not a `band' either; ibid. § 6(c) (p. 47).
32 The Argument from Injustice
desperadoes issue to their subjects individual commands that
are sometimes contradictory, always changing, and some-
times impossible to carry out. If the subjects obey a command,
they do so solely out of fear. Such a social order is for
conceptual reasons alone not a legal system.
The senseless order becomes a predatory or rapacious order
if the desperadoes organize themselves into a gang of bandits,
which presupposes at the least the introduction among them-
selves of a command hierarchy and a proscription of the use
of force. Assume further that a system of rules for the subjects
is decreed that has as its sole purpose permanently maintain-
ing the subjects as suitable objects of exploitation. An extreme
example: A primary source of revenue for the bandits is that
they regularly kill subjects in order to sell their organs. To
have available the healthiest possible victims for this purpose,
the bandits forbid smoking, drinking, and all violence among
their subjects. These rules establish no rights for the subjects,
that is, no obligations on the part of the bandits toward the
subjects. The purpose of the exploitation is clear to everyone,
the bandits making no effort whatsoever to hush it up. One
can quarrel over whether the system of norms prevailing
among the bandits themselves is a legal system, but, for
conceptual reasons alone, the system as a whole is not.63
To
establish this, we turn now to a third kind of social order.
In the long run, the predatory order proves not to be
expedient, so the bandits strive to acquire legitimacy. They
develop into governors and thereby transform the predatory
order into a governor system. They continue to exploit their
subjects, but their acts of exploitation proceed according to a
rule-driven practice. Everyone is told that this practice
is correct because it serves a higher purpose, say, the
63
Applying Augustine's robber-band argument here leads to denial of
the legal character of the bandit system. Augustine writes: `Justice removed,
then, what are kingdoms but great bands of robbers? What are bands of
robbers themselves but little kingdoms?' Augustine, The City of God against
the Pagans, trans. R. W. Dyson (Cambridge: Cambridge University Press,
1998), bk. IV, ch. 4 (p. 147).
The Concept of Law 33
development of the people. The killing and robbing of
governed individuals, acts that in point of fact serve only the
exploitative interests of the governors, remain possible at any
time. But they are punishable if they are not carried out in a
certain formsay, on the strength of the unanimous decision
of three members of the group of governorsand if they are
not publicly justified by appeal to the higher purpose, the
development of the people.
With the move to a governor system, a line is crossed.
Although the system is without a doubt unjust in the extreme,
its designation as `legal system' is not conceptually excluded.
With that, the question is put: What distinguishes the gov-
ernor system from the desperado system and the bandit
system? The difference is not that here general rules of some
kind prevail, for that is already the case in the bandit system.
And the difference is not that the governor system is equally
advantageous for all, even if only at the minimum level of
protecting life, liberty, and property; for in this system, too,
killing and robbing the governed remain possible at any time.
Rather, the decisive point is that a claim to correctness is
anchored in the practice of the governor system, a claim that
is made to everyone. The claim to correctness is a necessary
element of the concept of law. This thesis, called the `argu-
ment from correctness', will be established in the next section.
Here, in anticipation of the case to be made, it suffices to say
that a system of norms that neither explicitly nor implicitly
lays claim to correctness is not a legal system. Every legal
system lays claim to correctness.64
In this respect, the claim to
correctness has a classifying significance. An observer can at
best in an indirect or extended sense characterize as a `legal
system' a system of norms that neither explicitly nor implicitly
makes any claim to correctness.
64
This statement is the point of departure for a rational reconstruction
of Radbruch's somewhat opaque statement: `Law is the reality whose
meaning is in serving the legal value, the legal idea.' Radbruch, LP § 4
(p. 73) (emphasis omitted) (trans. altered).
34 The Argument from Injustice
This has few practical consequences, for actually existing
systems of norms regularly lay claim to correctness, however
feebly justified the claim may be. Practically speaking, rele-
vant problems first turn up where the claim to correctness is
indeed made but not satisfied. What is significant, however,
are the systematic consequences of the claim to correctness;
that is, it restricts the positivistic separation thesis a good bit
even in the observer's perspective. In this perspective, the
separation thesis does in fact count as unrestricted where
individual norms are concerned, but with legal systems, the
separation thesisalbeit only in extreme and indeed improb-
able casesreaches a limit defined by the claim to correctness.
This claim moves from the limit in the observer's perspective
to the centre in the participant's perspective, thus representing
a link between the two.
D. The Participant's Perspective
It has been shown that the positivistic separation thesis is
essentially correct from the observer's perspective. Only in
the extreme and indeed improbable case of a system of
norms that fails even to claim correctness does the separation
thesis reach a limit. An altogether different picture emerges if
one considers the law from the perspective of a participant,
say, a judge. From this perspective, the separation thesis is
inadequate, and the connection thesis is correct. In order to
establish the point, three arguments shall be considered: the
argument from correctness, the argument from injustice, and
the argument from principles.
(i) The Argument from Correctness
The argument from correctness is the basis of the other two
arguments, that is, the arguments from injustice and from
principles. It says that individual legal norms and individual
The Concept of Law 35
legal decisions as well as legal systems as a whole necessarily
lay claim to correctness. A system of norms that neither
explicitly nor implicitly makes this claim is not a legal system.
In this respect, the claim to correctness has a classifying
significance. Legal systems that do indeed make this claim
but fail to satisfy it are legally defective legal systems. In this
respect, the claim to correctness has a qualifying significance.
An exclusively qualifying significance is attached to the claim
to correctness of individual legal norms and individual legal
decisions. These are legally defective if they do not make the
claim to correctness or if they fail to satisfy it.
An objection can be made that the argument from correct-
ness is mistaken in saying that a claim to correctness is neces-
sarily attached to the law. In reply to this objection, two
examples might be considered. One example concerns the
first article of a new constitution for state X, where the
minority oppresses the majority. The minority would like to
continue to enjoy the advantages of oppressing the majority,
but would like also to be honest. The constitutional assembly
therefore adopts as the first article of the constitution the
following proposition:
(1) X is a sovereign, federal, and unjust republic.
There is something defective about this constitutional art-
icle.65
The question is where the defect lies.
One might think that the defect is simply that the article is
not expedient. After all, the minority wants to preserve the
unjust status quo, but its chances of doing so are slim if it does
not at least pretend that the status quo is just. There is in fact
a technical defect of this kind here; still, it does not explain the
defectiveness of the article. One might assume that in provid-
ing for a republic, the new article scraps a pre-existing mon-
archy, and one might assume further that the oppressed
65
For a similar argument, see Neil MacCormick, `Law, Morality and
Positivism', Legal Studies, 1 (1981), 13145, at 144, repr. in MacCormick
and Ota Weinberger, An Institutional Theory of Law (Dordrecht: Reidel,
1986), 12744, at 141.
36 The Argument from Injustice
majority deeply reveres the former monarch, with the result
that the status quo is as threatened by the introduction of
the republic as by the characterization of the state as `unjust'.
In this case, the constitutional framerif the injustice
provision were simply a technical defectwould be giving
rise to the same defect by providing for a republic as by
providing for injustice. But that is not so. There is something
absurd about the injustice provision, but not about the repub-
lic provision.
There must be another explanation for the defectiveness of
the article. A moral defect readily obtains, but this, too, is
obviously still not a complete explanation. Assuming the
injustice to be that certain rights are withheld from persons
belonging to a certain race, then it would make no difference
from the standpoint of morality if the injustice provision were
stricken and replaced with a provision withholding these
rights from persons of this race. It would indeed make a
difference, however, from the standpoint of defectiveness;
the article would no longer be absurd.
The explanation could lie in the violation of a widespread
though not a necessary convention for drawing up constitu-
tional texts, that is to say, the defect is a conventional defect.
Without a doubt, a widespread convention is being violated,
although this, too, is by itself still not a complete explanation.
The rule that was violated is more than a mere convention, for
it cannot be changed even in the event of changing circum-
stances and preferences. Rather, it is an essential element in
the practice of framing a constitution, a point made clear by
the redundancy, in a constitution, of an article like:
(2) X is a just state.
Only a conceptual defect remains then. I use the term
`conceptual defect' broadly here, as referring also to violations
of rules that are constitutive for speech acts, that is, linguistic
expressions qua actions. The claim to correctnessin this
case as, above all, a claim to justiceis necessarily attached
to the act of framing a constitution. A constitutional framer
The Concept of Law 37
gives rise to a performative contradiction if the content of
his act of framing a constitution negates the claim to justice,
even though he makes this very claim in acting to frame a
constitution.66
In the second example addressing the objection to the
argument from correctness, a judge hands down the deci-
sion:
(1) The accused is sentenced to life imprisonment, which is
wrong.
This proposition requires interpretation. The judge may
want to say that his decision contradicts positive law. He
may also want to say, however, that although his decision
does comply with positive law, the decision is unjust. These
and other interpretations lead to numerous problems that
shall be set aside here. Only the following interpretation is
of interest:
(2) The accused is sentenced to life imprisonment, which is
an incorrect interpretation of prevailing law.
In handing down this decision, the judge without a doubt
abandons his social role, and he violates rules of positive
law that, surely in all legal systems, obligate him to interpret
prevailing law correctly. But he would also be violating social
rules if he were unshaven and wearing a filthy robe as he
handed down the decision, and rules of positive law would
also be violated by the decision if the interpretation were
indeed incorrect, but the judge believed and claimed it to be
correct. Conversely, there would still be a defect even if the
judge were to assume erroneously that his interpretation is
incorrect and he did not violate positive law by announcing in
66
In this respect there exists a certain analogy to J. L. Austin's well-
known example: `[T]he cat is on the mat but I do not believe it is.' Austin,
How to Do Things with Words, ed. J. O. Urmson (Oxford: Clarendon Press,
1962), 48, and see at 4850; see also Austin, `The Meaning of a Word',
in Austin, Philosophical Papers, 1st edn., ed. J. O. Urmson and
G. J. Warnock (Oxford: Clarendon Press, 1961), 2343, at 312; 2nd edn.
(1970), 5575, at 634.
38 The Argument from Injustice
his decision this erroneous assumption. Clearly what we have
here is more than a violation of social or legal rules.67
The
judge gives rise to a performative contradiction and, in this
sense, a conceptual defect. With a judicial decision, the claim
is always made that the law is being correctly applied, how-
ever ill satisfied the claim may be. The very claim made in
carrying out the institutional act of sentencing is contradicted
by the content of the decision.
These two examples show that participants in a legal system
necessarily, on all sorts of levels, lay claim to correctness. If
and in so far as this claim has moral implications, a conceptu-
ally necessary connection between law and morality is dem-
onstrated.
This still does not prove the connection thesis, of course.
A positivist can endorse the argument from correctness and
nevertheless insist on the separation thesis. Two strategies are
available to him. First, he can show that the failure to satisfy
the claim to correctness does not by itself lead to forfeiture of
legal character. Apart from the limiting case of the system of
norms that in no way makes the claim, the claim to correct-
ness establishes at best a qualifying, not a classifying connec-
tion. Thus, the separation thesis, at any rate in so far as it is
geared to a classifying connection, is not affected by the
argument from correctness, apart from the limiting case just
mentioned. A second strategy is to maintain that the claim to
correctness, having a trivial content lacking in moral implica-
tions, cannot lead to a conceptually necessary connection
between law and morality. The positivist's first objection
points toward the argument from injustice, the second toward
the argument from principles.
67
Ulfrid Neumann, in Juristische Argumentationslehre (Darmstadt:
Wissenschaftliche Buchgesellschaft, 1986), 878, is of a different opinion.
He refers to the following example: `In the name of the people, Mr. N. is
sentenced to ten years in prison although there are no good reasons for this
sentence.'
The Concept of Law 39
(ii) The Argument from Injustice
The argument from injustice, as noted earlier, can be applied
to individual norms or to legal systems as a whole. I consider
it first with reference to individual norms.
(a) Individual Norms
This version of the argument has it that legal character is
forfeited when individual norms of a legal system cross a
certain threshold of injustice. Its best-known variant is Rad-
bruch's formula, which has already been discussed and
rejected from the standpoint of an observer.68
The question
now is whether or not the argument from injustice, as
expressed in Radbruch's formula, is acceptable from the
standpoint of a participant. It should be emphasized here
that Radbruch's formula does not say that a norm forfeits
its legal character simply if it is unjust. The threshold is set
higher than that. Legal character is forfeited only if the injust-
ice reaches an `intolerable degree'. Ordinance 11, pursuant to
the Statute on Reich Citizenship, serves once again as our
example.
There is widespread agreement today that the debate sur-
rounding Radbruch's formula cannot be decided on the basis
of analytical or conceptual arguments alone. What matters is
expedient or adequate concept formation that is justified by
normative arguments.69
To be sure, the argument from cor-
rectness has a role to play in evaluating normative arguments
for and against the argument from injustice. The earlier state-
ment to the effect that the argument from correctness is the
basis of the argument from injustice, too, was meant in
exactly this sense.
The many and diverse positions taken in the debate sur-
rounding Radbruch's formula can be essentially summarized
68
See above, this text, at 2831.
69
See above, this text, at 203.
40 The Argument from Injustice
under eight rubricslanguage, clarity, effectiveness, legal cer-
tainty, relativism, democracy, dispensability, and candour.
Language. In view of the ambiguity and vagueness of the
expression `law', a compelling linguistic-conceptual case
cannot be made either for or against the argument from
injustice. What can be defended, however, is the normative
thesis that the inclusion of moral elements in the concept of
law, required by the argument from injustice, leads to an
inexpedient specification of language. So it is that Hoerster
reproached the non-positivistsay, one who will not classify
Ordinance 11 as lawfor failing `to say which ordinary word
in our language could substitute for his morally charged
concept of law, lending it a value-neutral function.'70
The
non-positivist, according to Hoerster, loses out on the possi-
bility of generally identifying a norm like Ordinance 11 in a
readily intelligible way; that can be done without difficulty
only by calling it `law'.
As noted above, this is correct from the standpoint of an
observer.71
That things change, however, if one adopts the
participant's perspective can be shown with the help of the
dichotomy between norm and procedure discussed earlier.
The observer sees Ordinance 11 as the result or product of a
norm-creating procedure in which other persons have partici-
pated. Similarly, a judge's decision based on Ordinance 11 is,
for the observer, the result of a procedure, namely, a norm-
applying procedure, in which the observer has not partici-
pated. If norm and decision agree, there is no reason for him
not to call both `law'. If the two do not agree, he faces the
question of whether he should describe a contradiction or
determine derogating judge-made law. A different picture
emerges from the participant's perspective. To be sure, the
participantsay, the judgealso sees Ordinance 11 as first of
all the result of a norm-creating procedure. For him, though,
this is simply the way to a second quality of Ordinance 11,
70
Hoerster, LR 187; Hoerster, VT 27.
71
See above, this text, at 301.
The Concept of Law 41
namely, that it is the point of departure for a norm-applying
procedure in which he participates and whose result is accom-
panied by the claim to correctness.
Our concern here is not yet with substantive arguments, but
simply with the expedient use of the expression `law'. In order
that such considerations of linguistic usage not prejudice
substantive arguments, they must be compatible with differ-
ent substantive theses. Take the substantive thesis that there
are good legal reasons for the judge not to apply Ordinance 11
but instead to hand down a decision that contradicts its
language. Given this presupposition, it would be unsatisfac-
tory for the judge to say that Ordinance 11 is law. He must
characterize his decision as `law' since he is deciding on the
basis of legal reasons. Since his decision contradicts Ordinance
11, then if he were also to classify Ordinance 11 as `law', he
would be characterizing contradictory norms as `law', namely,
the general norm established by the Ordinance and the indi-
vidual norm expressed by his decision. This contradiction can
be resolved without difficulty if the judge says that Ordinance
11 is indeed prima-facie law but in the end not law at all. What
is expressed thereby is that, in the course of the norm-applying
procedure, Ordinance 11 is denied legal character. If there are
good legal reasons for not applying Ordinance 11, then not
only is it possible for the judge to say that the Ordinance is in
the end not law, it is necessary that he do so in order to avoid a
contradiction. Thus, Hoerster's argument from language
would be correct only if there could not ever be good legal
reasons for deciding contrary to the language of a statute that
is unjust in the extreme. If there can be such reasons in some
case or another, then Hoerster's argument is incorrect from the
participant's perspective. Whether there can or cannot ever be
good legal reasons of this kind, however, is a substantive
question not to be decided on the basis of considerations
of expedient linguistic usage. This means that Hoerster's
argument from language cannot justify objecting to the inclu-
sion of moral elements in a concept of law that is seen as
adequate from the participant's perspective. On the contrary,
42 The Argument from Injustice
if substantive reasons speak in favour of such inclusion, lin-
guistic usage has to fall in line.
Clarity. The second argument in the debate surround-
ing Radbruch's formula is made in terms of clarity.
H. L. A. Hart offers a classic formulation:
[I]f we adopt Radbruch's view, and with him and the German courts
make our protest against evil law in the form of an assertion that
certain rules cannot be law because of their moral iniquity, we
confuse one of the most powerful, because it is the simplest, forms
of moral criticism. If with the Utilitarians we speak plainly, we say
that laws may be law but too evil to be obeyed. This is a moral
condemnation which everyone can understand and it makes an
immediate and obvious claim to moral attention. If, on the other
hand, we formulate our objection as an assertion that these evil
things are not law, here is an assertion which many people do not
believe, and if they are disposed to consider it at all, it would seem to
raise a whole host of philosophical issues before it can be accept-
ed . . . [W]hen we have the ample resources of plain speech we must
not present the moral criticism of institutions as propositions of a
disputable philosophy.72
On first glance, this objection cannot be denied a certain
legitimacy. A positivistic concept of law that renounces the
inclusion of any moral elements at all is simpler and at least in
this respect clearer than a concept of law that includes moral
elements. Another consideration, however, is that clarity in
terms of simplicity is not the only goal of concept formation.
Simplicity must not prevail at the expense of adequacy.73
Moreover, even a complex concept can be clear. One scarcely
need fear that jurists will be confused by the inclusion of
moral elements in the concept of law.74
Jurists are accustomed
to dealing with complicated concepts. For the citizen, what
72
Hart, PSLM 6201, repr. Hart, Essays 778. Similarly Hoerster, LR
1878; Hoerster, VR 24812.
73
See Walter Ott, `Die Radbruch'sche Formel. Pro und Contra', Zeit-
schrift fur Schweizerisches Recht, N.F. (new series) 107 (1988), 33557, at
343.
74
ibid. 34950.
The Concept of Law 43
gives rise to a lack of clarity is not primarily that moral
elements are included in the concept of law. He might also
be confused by the news that even extreme injustice is law.
Rather, what gives rise to a lack of clarity is that it is not easy,
in many cases, to draw the line between norms that are unjust
in the extreme and norms that are not. That is a problem to be
addressed in terms of legal certainty, however, not clarity. The
objection based on clarity is concerned only with whether or
not moral elements are to be included at all in the concept of
law.
A general kind of conceptual indeterminacy, then, is not the
focus of the argument adduced in terms of clarity by Hart and
Hoerster. Rather, the question is how a conflict between law
and morality is to be comprehended conceptually. Neither
Hart nor Hoerster would resolve the conflict even in the case
of extreme injustice. What the law demands is one thing, what
morality requires is another. That is, morality can permit or
require the jurist, as human being and citizen, to refuse to obey
the law, but what he refuses to obey is still the law. Every other
account serves `to cloak the true nature of the problems with
which we are faced'.75
The positivist can discuss the questions
associated with statutory injustice `unveiled as what they are,
namely, questions of ethics'. The non-positivist, by contrast,
runs the `risk of hiding their ethical character by shifting them,
by definition, into the concept of law'.76
Is this objection justified? Is the problem being cloaked,
veiled, and hidden by the non-positivist? The answer is no.
The non-positivist does not deny the ethical character of the
problem. He simply claims that, in the case of extreme injust-
ice, the ethical problem is also a legal problem. The result is
that he draws legal conclusions from his moral judgment. The
content of his argumentation may coincide with that of the
positivist's, and he, too, must lay out his arguments and open
them up for discussion. That he moves, in the case of extreme
75
Hart, PSLM 620, repr. Hart, Essays 77.
76
Hoerster, LR 187.
44 The Argument from Injustice
injustice, away from the standpoint of morality to the stand-
point of the law is not a veiling of the problem, but, rather, the
expression of a substantive thesis. And this thesis can be
attacked only with substantive arguments, not with a formal
argument charging a lack of clarity.
The remaining objection is to a `disputable philosophy' that
`would seem to raise a whole host of philosophical issues'77
and
could therefore lead to a lack of clarity and to confusion. But
this objection can be held against positivism, too, which also
gives expression to a certain legal philosophy that can be
debated. In this debate, positivism and non-positivism are, in
principle, on equal footing in direct opposition to one another.
That positivism cannot pretend to anything like a presumption
of correctness is shown by the claim to correctness that is
necessarily attached to the law, a claim that speaks more in
favour of non-positivism. Thus, the non-positivist cannot be
dislodged by an argument adduced in terms of clarity either.
Effectiveness. Before the era of National Socialism in Ger-
many,78
Radbruch was a legal positivistnot in terms of justi-
fication, to be sure,79
but in terms of result, at any rate where
the judge is concerned.80
After 1945, Radbruch changed his
mind and defended the view that legal positivism `rendered
both jurist and the people defenceless against arbitrary, cruel,
criminal statutes, however extreme'.81
He now demanded the
inclusion of moral elements in the concept of law in order to
`arm jurists against the recurrence of a rogue state (Unrechts-
staat)' like Nazi Germany.82
Hart objected that it was nave to
assume that a non-positivistic definition of the law could have
77
Hart, PSLM 621, 620, repr. Hart, Essays 78.
78
(This sentence of the original text has been modified by the author.)
79
See Arthur Kaufmann, Rechtsphilosophie, 2nd edn. (Munich:
C. H. Beck, 1997), at 414.
80
See Radbruch, LP § 10 (at pp. 11620).
81
Gustav Radbruch, `Five Minutes of Legal Philosophy', trans. Stanley
L. Paulson, in Philosophy of Law, 3rd edn., ed. Joel Feinberg and Hyman
Gross (Belmont, Calif.: Wadsworth, 1986), 10910, at 109 (trans. altered).
82
Radbruch, GUR 107, RGA 3 90.
The Concept of Law 45
any effect on statutory lawlessness.83
Hart's argument,
directed to the effectiveness of the non-positivistic concept of
law, was fine-tuned by Hoerster. According to him, the expect-
ations that Radbruch attaches to this concept are based on an
`enormous overestimation'84
of the effect the legal theorist or
philosopher has on the behaviour of citizens and jurists.
For one cannot change reality simply through the definition of a
concept. A statute that is morally dubious but enacted within the
framework of the prevailing legal systemwhether the legal phil-
osopher calls it `valid law' or notpossesses, apart from its immor-
ality, all the qualities that a morally impeccable statute possesses: It
has come into being in accordance with the prevailing constitution.
It is applied and enforced by a legal staff. And whoever refuses to
obey it (say, because of its immorality) must reckon with the usual
consequences of a violation of law. One cannot dispose of all these
facts by deciding in favour of the anti-positivistic, morally charged
definition of the concept of law.85
The thesis that a non-positivistic concept of law has no
effect on statutory lawlessness can be sharpened into the
claim that such a concept is not only not helpful, it is in fact
a hindrance in the struggle against statutory lawlessness.
Positivism, with its strict separation of legal and moral obli-
gations, encourages a critical stance vis-aÁ-vis the law. By
contrast, one who begins by including moral elements in the
concept of law runs the risk of uncritically identifying legal
with moral requirements. So it is that Kelsen rejects the thesis
`that only a moral social system is law', offering as his reason:
`. . . such a system, in its actual application by the jurispru-
dence prevailing in a particular legal community, leads to an
uncritical legitimation of the state coercive system constitut-
ing this community.'86
Within the framework of the argument
83
Cf. Hart, PSLM 61718, repr. Hart, Essays 74; Hart, CL 205, 2nd
edn. 20910.
84
Hoerster, LR 185.
85
ibid. 186.
86
Kelsen, PTL § 13 (pp. 689) (trans. altered); in agreement, Hoerster,
VT 32; see also Horst Dreier, `Die Radbruchsche FormelErkenntnis oder
46 The Argument from Injustice
adduced in terms of effectiveness, there are, then, two theses
to be distinguished. The first says that a non-positivistic con-
cept of law can have no effect on statutory lawlessness. The
second has it that a non-positivistic concept of law carries
with it the risk of uncritically legitimating statutory lawless-
ness. The latter thesis goes further, and I shall consider it first.
The risk of uncritical legitimation would indeed exist if the
non-positivistic connection thesis said that a norm is a legal
norm only if its content corresponds to morality. It is this
variant of the connection thesis that Kelsen and Hoerster
have in mind when they formulate their objection in terms of
uncritical legitimation. Thus, Kelsen speaks of the `thesis that
the law is in its essence moral'.87
According to Hoerster, the
connection thesis runs: `A norm is legal only if it is moral',
which is logically equivalent to `if a norm is legal, it is moral'.88
If the point of departure is this version of the connection
thesis, which may be called the `strong' version, then every
jurist who characterizes a norm as a legal norm must at the
same time classify it as morally justified. That would indeed
carry with it the risk of an uncritical legitimation of the law.
The objection in terms of uncritical legitimation fails to
recognize, however, that a non-positivist need not defend the
strong connection thesis, with its postulate of a contentual
agreement between every legal norm and morality. Rad-
bruch's formula says expressly, `The positive law, secured by
legislation and power, takes precedence even when its content
is unjust and inexpedient'.89
Legal character, according to the
formula, is forfeited only if the conflict between law and
morality reaches an `intolerable', that is, an extreme degree.
This may be called the `weak' connection thesis.
The weak connection thesis does not lead to an identification
of the law with morality. It says that unjust and therefore
Bekenntnis?' in Staatsrecht in Theorie und Praxis. Festschrift Robert Walter
zum 60. Geburtstag, ed. Heinz Mayer et al. (Vienna: Manz, 1991), 133.
87
Kelsen, PTL § 13 (p. 68) (trans. altered).
88
Hoerster, VT 32.
89
Radbruch, GUR 107, RGA 3 89.
The Concept of Law 47
immoral norms can be law. So, like legal positivism, it admits of
a moral critique of the law and, in this respect, makes possible a
critical stance vis-aÁ-vis the law. It differs from legal positivism
simply in that beyond a certain threshold, legal character is
forfeited. Now, one might think that this alone suffices for
uncritical legitimation. Jurists would be inclined to say that
the threshold has not been crossed, therefore their legal system
possesses at least a minimum moral legitimacy. A counter-
argument, however, lies in the character of the threshold. The
threshold is extreme injustice. The formulation found in the
Federal Constitutional Court decision on citizenship, referred
to above, serves as an example. `The attempt to destroy physic-
ally and materially, in accordance with ``racist'' criteria, certain
parts of one's own population, including women and children,
has nothing in common with law and justice.'90
If any moral judgments can be justified in terms of the claim
to universal bindingness,91
then surely it is those that charac-
terize as immoral and unjust in the extreme the pursuit of
goals like this. The threshold beyond which norms forfeit legal
character is marked by minimum moral requirements. An
example is the elementary human right to life and physical
security. The claim is made that moral requirements like this,
at any rate, can be rationally justified.92
If this is so, then one
scarcely need fear something like an `uncritical legitimation'
of norms that are beyond the threshold of extreme injustice.
Such legitimation would at least cause some troublewhich
may be one reason that barbaric acts of injustice are often
carried out not in accordance with proper legal form but on
the strength of more or less secret orders.93
90
BVerfGE 23 (1968), 98, at 106.
91
(This sentence of the original text has been modified by the author.)
92
See Robert Alexy, `A Discourse-Theoretical Conception of Practical
Reason', trans. Ruth Adler and Neil MacCormick, Ratio Juris, 5 (1992),
23151.
93
See on this issue Walter Ott, `Der Euthanasie-Befehl Hitlers vom 1.
September 1939 im Lichte der rechtspositivistischen Theorien', in Staats-
recht in Theorie und Praxis (n. 86 above), 51933.
48 The Argument from Injustice
There is, then, a double conclusion to report. Below the
threshold of extreme injustice, the weak connection thesisas
expressed, say, in Radbruch's formuladoes not run the risk
of uncritical legitimation, because a conflict between law and
morality at this level does not rule out legal character. And
beyond the threshold of extreme injustice, there is at any rate
no risk of uncritical legitimation if the minimum moral re-
quirements that mark the threshold can be rationally justified.
In passing, I might point out that an uncritical legitimation of
currently prevailing law is also possible from the positivistic
standpoint of strict separation of law and morality, for con-
tentual agreement can be claimed even on the basis of con-
ceptual separation.
Within the framework of the argument adduced in terms of
effectiveness, the other objection to the non-positivistic con-
cept of law has it that such a concept can have no effect on
statutory lawlessness. This objection charging ineffectiveness
is to a considerable extent legitimate. Hart and Hoerster are
correct in saying that definitions of the concept of law that are
offered by legal theory or legal philosophy cannot, as such,
change reality. It makes no essential difference to a judge in a
rogue state whether, in refusing to apply a statute that is
unjust in the extreme, he appeals to Hart and refuses on
moral grounds or joins Radbruch and refuses on legal
grounds.94
Either way, he has to reckon with personal conse-
quences, and his willingness to make this sacrifice turns on
factors other than the definition of the concept of law.
Still, there are differences from the standpoint of
effectiveness. One difference is clear if the focus is on legal
practice rather than on the individual judge, who measures
statutory lawlessness or injustice against his conscience.95
If
there exists in legal practice a consensus that the satisfaction
of certain minimum requirements of justice is a necessary
94
See Ott, `Die Radbruch'sche Formel. Pro und Contra' (n. 73 above),
at 346.
95
ibid. 347.
The Concept of Law 49
presupposition for the legal character of state directives, then
not only is there a line of moral argumentation available for
resisting the acts of a rogue regime, there is also, anchored in
legal practice, a line of legal argumentation. One ought to
have no illusions, though, about the prospects for the success
of such resistance. A rogue regime that is halfway successful
can quickly destroy the legal practitioners' consensus by in-
timidating individuals, making personnel changes, and
rewarding conformity. It is at least conceivable, however,
that this fails to work for a weaker rogue regime, especially
in its initial phase. Granted, this is a relatively limited effect,
but it is an effect. What is important is that even if this
relatively limited effect should prove to be an erroneous as-
sumption, no compelling objection to the non-positivistic
concept of law results. To defend his position, the non-posi-
tivist does not need to show that, in a rogue state, his concept
of law makes a better safeguard against statutory lawlessness
than the positivistic concept of law does. It is enough that the
struggle against statutory lawlessness can be just as effectively
waged on the basis of the non-positivistic concept of law as on
the basis of a positivistic concept of law. And that much is
certain. For why should it not be the case that the struggle can
be just as effectively waged when statutory lawlessness or
injustice is not seen as law as when it is seen as law?
Once a rogue state is successfully established, legal concepts
may no longer have much effect. Only after the collapse of
such a state are essential differences between the positivist and
the non-positivist evident. Still, even in the successfully estab-
lished rogue state, the non-positivistic concept of law does
have one slight but not unimportant effect that can work
against statutory lawlessness. It may be called the `risk effect'.
A judge or another office-holder in a rogue state sees his own
situation differently according to whether he interprets it in
light of a positivistic or a non-positivistic concept of law. A
judge, for example, faces the question of whether or not he
should hand down a terroristic criminal sentence that is
covered by lawless or unjust statutes. He is neither a saint
50 The Argument from Injustice
nor a hero. He has little interest in the fate of the accused, but
more interest in his own. All historical experience says that he
cannot rule out the collapse of the rogue state, and he worries
about what might happen to him then. If he has to assume the
predominant or general acceptance of a non-positivistic con-
cept of law according to which the norm supporting the
terroristic sentence is not law, then he takes a relatively high
risk of being unable to justify himself later and therefore of
being prosecuted. The risk diminishes if he can be certain that
his behaviour will be evaluated later on the basis of a positiv-
istic concept of law. To be sure, the risk does not disappear
altogether, for a retroactive statute may be enacted that could
hold him accountable. Still, the risk is a lesser one. Retro-
active statutes pose problems for the Rechtsstaat or rule of
law, so it is entirely possible that no such statute will be
enacted, and if one is, our judge can nevertheless try to defend
himself by claiming to have acted on the basis of formerly
valid law. It is clear, then, that a predominant or general
acceptance of a non-positivistic concept of law increases the
risk of those persons who, in a rogue state, commit or partici-
pate in committing lawless or unjust acts that are covered by
statute. Thus, even for persons who see no real reason not to
be involved in injustice, or who would actually favour such
involvement, an incentive arises or is reinforced for them not
to participate in injustice at all or at least to tone it down. In
this way, the predominant or general acceptance of a non-
positivistic concept of law can have an affirmative effect even
in a rogue state. All in all, therefore, one can say that the
practical consequences of the non-positivistic concept of law,
from the point of view of fighting statutory lawlessness, are at
any rate not worse and in some respects even better than those
of the positivistic concept of law.
Legal Certainty. A fourth argument against the non-
positivistic concept of law asserts that this concept jeopardizes
legal certainty. The argument does indeed count against vari-
ants of non-positivism that take as their point of departure a
The Concept of Law 51
strong connection thesis, that is, those variants according to
which every injustice leads to the forfeiture of legal character.
If, in addition, every person is given the authority, appealing
to his own notion of justice, to refuse to comply with statutes,
then the argument from jeopardized legal certainty is magni-
fied into the argument from anarchy. This need not be pur-
sued further, however, for no serious non-positivist defends
such views. Here, the question is simply whether or not legal
certainty is jeopardized by a concept of law that entails the
forfeiture of legal character not in every case of injustice, but
only in cases of extreme injustice. The answer to the question
is no.
If there are notions of justice that are rationally justifiable,
then one who rationally justifies his view that an action is
unjust can be said to know this. Now, the following principle
applies: the more extreme the injustice, the more certain the
knowledge of it. This principle connects material and epis-
temological considerations. It provides a justification for the
Federal Constitutional Court's view, stated in the decision on
citizenship discussed above, not only that the injustice of
Ordinance 11 reached an `intolerable degree', but also that
this was `evident'.96
There may well be cases, of course, in
which one cannot say with complete certainty whether or not
extreme injustice is at hand. This scarcely counts at all, how-
ever, when compared with the uncertainties generally
attending knowledge of the law. The non-positivistic connec-
tion thesis leads at most, then, to a minimal loss of legal
certainty.
An answer to the question of whether this minimal loss
of legal certainty is acceptable must take into account that
while legal certainty is indeed an important value, it is not the
only value. The value of legal certainty must be weighed
against the value of material justice.97
Radbruch's formula
makes an assessment that fundamentally gives precedence to
96
BVerfGE 23 (1968), 98, at 106.
97
Radbruch, GUR 107, RGA 3 889.
52 The Argument from Injustice
legal certainty and only in extreme cases inverts the relation.
The only one who can object to this at all is one who regards
legal certainty as an absolute principle.98
And that, like every
pursuit of an absolute principle, has an air of fanaticism about
it.
Relativism. The argument adduced in terms of legal cer-
tainty is sharpened by the argument from relativism. It says
that not only is it difficult to recognize the boundary between
injustice that is and is not extreme, but no notion of justice,
not even of extreme injustice, can be rationally justified or
objectively known. This is the thesis of radical relativism. If
this thesis is correct, then the inclusion of moral elements in
the concept of law means nothing other than that the judge, in
cases where his subjective preferences are especially intensely
affected, is offered the possibility of deciding contrary to the
statute. Hoerster paints a drastic picture:
There is no guarantee, not even the mere likelihood, that the mor-
ality the judge or the citizen in question brings into his concept of
law is in fact an `enlightened' morality . . . Nothing says in general
that the moral notions of some particular individual or of some
particular society are in some sense or another more enlightened
(say, `more humane' or `more just') than the positive legal norms of
the state in question . . . It is not exactly as if there were onlyas the
opponents of legal positivism are always suggestingthe judge or
the citizen who, confronted with `Nazi statutes', would rather pay
heed to a humane morality. There is just as well the judge or the
citizen who, confronted with `democratic' statutes (say, those of the
Weimar Republic or of the post-war Bonn Republic), would rather
pay heed to a Nazi morality.99
The argument from relativism makes explicit what was
already obvious as a presupposition in the arguments adduced
in terms of effectiveness and legal certainty: The non-
positivist presupposes an at least rudimentary non-relativistic
ethics. It is no accident that Radbruch, before 1933, establishes
98
On the concept of an absolute principle, see Alexy, TCR, at 624.
99
Hoerster, VR 2482.
The Concept of Law 53
his in effect positivistic view100
by appealing to relativism, that
is, by appealing to the thesis that a universally compelling
justification of moral principles is impossible.
Now, however, it has proved to be impossible to answer the ques-
tion as to the purpose of the law other than by listing the diverse
opinions of interested parties. And it is precisely on this alone, on
this impossibility of a natural law, that the validity of the positive
law can be established; at this point, relativismsimply our method
of observation until nowis itself admitted as a building block into
our system.101
After 1945, Radbruch extracts a basic repertory of human and
civil rights from relativistic scepticism:
Certainly [these legal principles, called natural law or the law of
reason,] are surrounded by doubt when it comes to particulars, but
the work of centuries has nevertheless developed a solid repertory,
collected with such broad consensus in the so-called declarations of
human and civil rights that, with respect to some of them, only a
labored scepticism can still harbour doubts.102
The references to historical experience`the work of cen-
turies'and to an actually existent `broad' consensus still do
not amount to a refutation of relativism, even if in terms of
national, supranational, and international legal practice these
factual references approach such a refutation. A sceptic may
object that the development of moral views over the last
centuries or millennia has gone off the track, and that it is
possible that everyone or nearly everyone is entangled in a
collective mistake. To dispel this sceptical objection, one must
show that one can rationally justify a proposition like:
(1) The physical and material destruction of a minority of
the population on grounds of race is injustice in the
extreme.
100
(This sentence of the original text has been modified by the author.)
101
Radbruch, LP § 10 (p. 116) (trans. altered).
102
Radbruch, `Five Minutes of Legal Philosophy' (n. 81 above), 110
(trans. altered).
54 The Argument from Injustice
Showing this is eo ipso to show that one can rationally refute a
proposition like:
(2) The physical and material destruction of a minority of
the population on grounds of race is not injustice in the
extreme.
The problem of legal positivism leads, then, to the meta-
ethical problem of the justifiability of moral judgments. I
shall not discuss this problem here,103
resting content with
the claim that a proposition like (1) is rationally justifiable
and a proposition like (2) is rationally refutable. If this claim
is correct, then the objection based on relativism is answered.
If this claim is not correct, then to counter the objection based
on relativism, one could onlybut could at leastpoint to
the fact of a currently broad consensus, which is not in itself,
to be sure, a refutation in the strict sense but which does, for
legal practice, as mentioned above, approach a refutation.
What this means with respect to Hoerster's concern that a
judge faced with democratically enacted, just statutes could
appeal to a `Nazi morality' is that such a judge, at any rate in
a state steeped in the tradition of human rights or open to
them, should be thwarted by the fact of a broad consensus on
fundamental rights. Furthermore, if rationally justified
notions of extreme injustice are possible, then there are ra-
tional grounds for not resisting democratically enacted stat-
utes by appealing to a `Nazi morality'. Only in a society
already given over in its majority to a `Nazi morality' does a
serious risk exist that a judge, appealing to a non-positivistic
concept of law, will deny legal character to just statutes be-
cause he finds intolerable a violation of `Nazi morality'. That
the non-positivistic concept of law may be misused this way in
such a society is a drawback, but not one that is all that
weighty. Once `Nazi morality' achieves dominance, statutes
conflicting with it to an extreme degree do not last long
anyway.
103
See Alexy, TLA, at 33100; Alexy, `On Necessary Relations between
Law and Morality' (n. 43 above).
The Concept of Law 55
Democracy. What has been said here about the objection
based on relativism can be applied to another possible objec-
tion to the non-positivistic concept of law, the objection based
on democracy. It says that the non-positivistic concept of law
carries with it the risk that the judge, appealing to justice, will
oppose decisions of the democratically legitimated legisla-
tor.104
Since this would amount to an intrusion of the judi-
ciary into the sphere of the legislature, the objection can also
be formulated in terms of jeopardizing the separation of
powers.
This objection loses its punch if one considers that the non-
positivistic concept of law entails the forfeiture of legal char-
acter only in cases of extreme injustice. It has an effect only in
a core area. The content of the constitutional review of rights
violations in democratic constitutional states reaches much
further. Whoever appeals to democracy or the separation of
powers to argue against the weak connection thesis repre-
sented here would have to reject any judicial review whatso-
ever of the legislator's commitment to fundamental rights.
Dispensability. Radbruch's formula is of practical signifi-
cance above all after the collapse of a rogue regime. The
Federal Constitutional Court's decision on citizenship dis-
cussed above serves as an example of this. By contrast, the
objection based on dispensability says that statutory injustice
can be accounted for other than by revoking legal character.
That is, the new legislator can abrogate the unjust older
statute by means of a retroactive statute.105
In order to assess correctly the objection based on dispens-
ability, criminal cases must be distinguished from other cases.
Art. 103, para. 2, of the Basic Law106
formulates an elemen-
tary principle of the Rechtsstaat, namely, nulla poena sine
104
Ingeborg Maus, `Die Trennung von Recht und Moral als Begrenzung
des Rechts', Rechtstheorie, 20 (1989), 191210, at 193: `The moral argument
can . . . easily be misused as a substitute for democracy.'
105
Hart, PSLM 619, repr. Hart, Essays 77.
106
GG art. 103, para. 2: `An act may be punished only if it was defined
by a law as a criminal offense before the act was committed' (trans. altered).
56 The Argument from Injustice
lege,107
as a norm of positive constitutional law, thereby
proscribing the enactment of retroactive criminal statutes by
the ordinary legislator. This can be generalized. If the
principle nulla poena sine lege has constitutional status, then
one can hardly say in the field of criminal law that the enact-
ment of a retroactive ordinary statute would render dispens-
able the application of a non-positivistic concept of law.
Certainly one could imagine a constitutional change that, in
cases of extreme injustice, would permit exceptions to the
principle nulla poena sine legeand thereby exceptions to
the principle nullum crimen sine lege,108
too. Such exceptions
would be problematic at the least, however, under a consti-
tution thatas the Basic Law does in art. 79, para. 3109

withholds the competence to change elementary principles of
the Rechtsstaat even from the legislator empowered to change
the constitution. Accompanying this legal problem is a factual
one. Even if it should be legally permissible to attach an
exceptions-clause to the principle nulla poena sine lege, it
would be highly doubtful that such a clause could garner the
qualified majority necessary for changing the constitution. All
of this shows that merely referring to the legislator does not
establish in all legal systems and under all circumstances the
dispensability of Radbruch's formula.
If the principle nulla poena sine lege has constitutional
status and is unchangeable, or if it does not formally have
constitutional status but, as a fundamental legal principle,
cannot be restricted, then the real problem in criminal law
cases is not that a non-positivistic concept of law is dispens-
able, but, rather, whether or not the application of such a
concept of law leads to a circumvention of the principle nulla
poena sine lege. To be sure, this problem is not identical with
107
`Without a law, there is no punishment.'
108
`Without a law, there is no crime.'
109
GG art. 79, para. 3: `Amendments of this Basic Law affecting the
division of the Federation into Lander, the participation in principle of the
Lander in legislation, or the basic principles laid down in articles 1 and 20
shall be inadmissible.'
The Concept of Law 57
the problem of dispensability, and I take it up within the
framework of the next objection, based on candour.
In essence, then, the appeal to dispensability is restricted to
cases outside the field of criminal law, cases where there exists
in principle the possibility of solving the problem of lawless or
unjust statutes by means of retroactive statutes. The question,
though, is what the judge ought to do if the legislator, for
whatever reason, fails to act and if the lawless or unjust
statute cannot, on the basis of currently prevailing constitu-
tional law, be declared irrelevant for the decision at hand.
Should the judge, then, hand down decisions based on, and
themselves representing, injustice in the extreme? One might
think that the judge should go ahead and do this in order to
prompt the legislator to enact retroactive statutes. But that
would mean in numerous cases, especially in the civil law, that
the affected citizen suffers a disadvantageous decision based
on, and itself representing, injustice in the extreme, simply to
prompt the legislator to react. Thus, the citizen would be used,
permanently or temporarily, as a means of provoking legisla-
tive activity. That cannot be reconciled with his fundamental
rights, which shows that pointing out the mere possibility of a
retroactive statute is not enough to demonstrate that the
application of a non-positivistic concept of law is dispensable.
If the legislator fails to make use of this possibility, and if the
lawless or unjust statute cannot, on the basis of currently
prevailing constitutional law, be declared irrelevant for the
decision at hand, then a non-positivistic concept of law must
of necessity be applied in order to protect the fundamental
rights of the citizen.
Along with this counter-argument, focused on the rights of
the citizen, comes a second, based on the claim to correctness.
As discussed above, every judicial decision necessarily lays
claim to correctness. A decision based on, and itself represent-
ing, injustice in the extreme fails in the extreme to satisfy this
claim. So there are, outside the field of criminal law, two
grounds for refuting the argument from dispensability and
maintaining that a non-positivistic concept of law is indis-
58 The Argument from Injustice
pensable: respect for the rights of the citizen and the claim to
correctness.
Candour. The objection based on candour says that, in
criminal law cases, the non-positivistic concept of law leads
to a circumvention of the principle nulla poena sine lege. Hart
illustrates this argument with a case decided in 1949 by a
German court of appeals.110
A woman who wanted to be rid
of her husband told the authorities in 1944 that he had made
disparaging comments about Hitler while home on leave from
the front. The husband was arrested and, pursuant to provi-
sions imposing criminal liability for such remarks, sentenced
to death. He was not executed, but sent to the front instead. In
1949, the wife was prosecuted for depriving her husband of his
liberty. The Court of Appeals in Bamberg, which finally heard
the case, found her guilty. The Court was of the opinion that
the husband's death sentence was legal, since the National
Socialist criminal statutes on which it was based simply pre-
scribed `an omission, namely, to remain silent', and for that
reason it was not based on `a statute obviously contrary to
natural law'.111
The Court condemned the wife, however, on
the basis of a controversial criminal law construction
according to which a deprivation of liberty perpetrated indi-
rectly can be criminally punishable even if the direct perpetra-
torhere, the National Socialist courtacts legally. The
Court in Bamberg held that the wife's denunciation of her
husband was illegal because it `violated the sound conscience
and sense of justice of all decent human beings'. The correct-
ness of this criminal law construction need not be discussed
here.112
Nor is it of any concern that Hart, as he himself later
110
OLG Bamberg, reported in Suddeutsche Juristen-Zeitung, 5 (1950),
2079.
111
ibid. 2089 (court opinion).
112
One might enquire in particular into the implications of the thesis
that the denunciation `violated the sound conscience and sense of justice of
all decent human beings' to such a degree that it was illegal and therefore
punishable. Does this not imply that the death sentence resulting from the
denunciation was unjust? Can the denunciation violate `the sound
The Concept of Law 59
remarks,113
represents the case incorrectly in that he supposes
that the Court in Bamberg reached its conclusion by denying
legal validity to the National Socialist statutes underlying the
death sentence.114
If one agrees with the Court in Bamberg
that a statute permitting the death penalty for disparaging
comments about a dictator does not amount to extreme in-
justice because it simply prescribes an omission, then one need
only consider the hypothetical case of a woman who de-
nounces her husband because, in a dictatorship, he disobeys
a command, based on a statute, to commit homicidal acts of
extreme injustice. Following the opinion of the Court in Bam-
berg, the wife would be subject to condemnation in this case
because the sentence resulting from her denunciation would
be illegal.
Hart objects:
There were, of course, two other choices. One was to let the woman
go unpunished; one can sympathize with and endorse the view that
this might have been a bad thing to do. The other was to face the
fact that if the woman were to be punished it must be pursuant to
the introduction of a frankly retrospective law and with a full
consciousness of what was sacrificed in securing her punishment in
this way. Odious as retrospective criminal legislation and punish-
ment may be, to have pursued it openly in this case would at least
have had the merits of candour. It would have made plain that in
punishing the woman a choice had to be made between two evils,
that of leaving her unpunished and that of sacrificing a very pre-
cious principle of morality endorsed by most legal systems.115
The objection based on candour is the strongest argument
against the non-positivistic concept of law, but not its down-
conscience and sense of justice of all decent human beings' enough to be
illegal and therefore punishable, even if the death sentence was in no way
unjust? If one answers `no' to the latter question, then the decisive question
is whether the punishability of the denunciation simply presupposes that the
death sentence was to some degree unjust, or whether it requires an extreme
and therefore evident injustice of the sentence.
113
Hart, CL 2545, 2nd edn. 3034.
114
Hart, PSLM 619, repr. Hart, Essays 767.
115
ibid.
60 The Argument from Injustice
fall. First of all, the non-positivist has a way out of Hart's
dilemma. He can deny the legal character of an unjust statute
that implies the right to denounce someone and can none the
less arrive at exemption from criminal liability. To do this, he
needs simply to apply, on specifically criminal law grounds,
the principle nulla poena sine lege to all statutory and effica-
cious norms and only to these, however unjust they may be.
For the field of criminal law, then, Radbruch's formula is, in
order to protect the citizen, restricted by the principle nulla
poena sine lege. Accordingly, it has an effect now only outside
the criminal law. Still, another rejoinder to the appeal to
candour is preferable. Radbruch's formula leads to the crim-
inal punishment of those deeds alone whose injustice is so
extreme and therefore so evident that it is more easily recog-
nizable than the injustice in many run-of-the-mill criminal law
cases.116
That is at any rate acceptable whenas in the case of
denunciationit is not that norms establishing criminal liabil-
ity are produced with the help of a non-positivistic concept of
law, but, rather, that statutory injustice leading to an exclu-
sion of criminal liability is defeated. If the injustice of these
norms is so extreme and therefore so evident that everyone
can clearly recognize it, then there can be no question of a
covert retroactivity. For then the injustice was clearly recog-
nizable when the deed was committed, and, because at that
point it was so extreme and therefore so evident that everyone
could clearly recognize it, these norms were not, at the time of
the deed, law that could lead to the exclusion of criminal
liability. Thus, the legal situation is not changed retroactively,
but, rather, what the legal situation was at the time of the deed
is simply determined. If the argument from injustice is limited
to the weak connection thesis, that is, comes into play only in
the event of extreme and therefore evident injustice, then there
cannot be any question of a covert retroactivity and therefore
not of a lack of candour either.
116
As Walter Ott correctly notes in `Die Radbruch'sche Formel. Pro und
Contra' (n. 73 above), at 355.
The Concept of Law 61
The Results of the Enquiry into the Debate surrounding Rad-
bruch's Formula. Applied to individual norms, the argument
from injusticein the weaker version expressed in Radbruch's
formulafares better in our enquiry than do the objections
raised against it. All the objections were answered at least well
enough to tie the score. And what is more, reasons were given
for preferring the argument from injustice. Within the frame-
work of one objection, the argument adduced in terms of
effectiveness, a risk effect was introduced that can work to a
certain extent against statutory lawlessness even in a rogue
state. The necessity of applying the non-positivistic concept of
law, as explained in discussing the objection based on dispens-
ability, takes on special significance after the collapse of a
rogue state. If the new legislator fails to act, and if the lawless
or unjust older statute cannot, on the basis of currently pre-
vailing constitutional law, be declared irrelevant for the deci-
sion at hand, then the necessity of applying the non-
positivistic concept of law follows from respect for the rights
of the citizen and from the claim to correctness necessarily
made by judicial decisions. For the field of criminal law, the
argument from injustice can be shown, in its weaker version,
to be reconcilable with the principle nulla poena sine lege. It
has also become clear, though, that the refutation of a number
of objections depends on the possibility of a rational justifica-
tion for at least some minimum moral requirements, a core
repertory of elementary human rights. Should such justifica-
tion prove unsuccessful, then only relative to a legal practice
steeped in the tradition of human rights would the positivistic
opponents of the argument from injustice be refuted. To be
sure, that would not be a refutation in the strict sense, but,
from a practical standpoint, it would come close.
(b) Legal Systems
The question arises of whether the argument from injustice
can be applied not only to individual norms but also to legal
62 The Argument from Injustice
systems as a whole. As noted above, a system of norms that
neither explicitly nor implicitly lays claim to correctness is
not, even from the observer's perspective, to be classified as
a legal system.117
It was also noted that this has few practical
consequences, for actually existing systems of norms regularly
lay claim to correctness, however feebly justified the claim
may be. Practically speaking, significant problems first turn
up where this claim is indeed made but not satisfied. The
argument from injustice comes into play when the failure to
satisfy the claim to correctness crosses the threshold of ex-
treme injustice. Then the question is whether there are conse-
quences that affect the legal system as a whole, that is,
consequences beyond a mere summing up of the consequences
of individual norms that are unjust in the extreme.
An argument like this, applied to the system as a whole, is
adduced by Martin Kriele. His point of departure is the thesis
that it is `a moral obligation to comply with the law, if the law
``by and large'' takes morality into account'.118
According to
Kriele, this condition is satisfied when the legal system rests
on the principles of the democratic constitutional state. It is
not satisfied in totalitarian dictatorships. Kriele's entire argu-
ment focuses on legal obligation as moral obligation and on
the related question of the legitimacy of legal systems and
individual legal norms.
The question of legitimacy that Kriele asks is not the same
as our question here. A lack of legitimacy need not entail a
lack of legal character, and a norm classified as a legal norm
may well prescribe something that is in conflict with a moral
obligation. So it is that Kriele himself speaks of `immoral
law'.119
In order to reach to the question posed here, Kriele's
argument has to be reworked into an argument that focuses
on legal character. The variant to be considered runs, then, as
follows: A system of norms forfeits its legal character if it is by
117
See above, this text, at 34.
118
Martin Kriele, Recht und praktische Vernunft (Gottingen: Vanden-
hoeck & Ruprecht, 1979), 117.
119
ibid. 125.
The Concept of Law 63
and large unjust in the extreme. This formula lends itself to
different interpretations, two of which are of interest here: the
extension thesis and the collapse thesis.
The Extension Thesis. The extension thesis says that a lack
of legal character on the part of the fundamental substantive
norms of a legal system entails a lack of legal character on the
part of all norms typical of the system, and in this sense
extends to them. Within the framework of his own enquiry,
Kriele defends the extension thesis. This is apparent in his
thesis
that, even in a totalitarian state, there is direct statutory legitimacy,
namely, the legitimacy of those statutes that are not typical of the
system and, exceptionally, coincide with morality. Statutes about
contract compliance, entering into marriage, the proscription of
murder, as well as traffic regulations, all these are recognized as
legitimate in the totalitarian state, too, because they would be
justified even if measured against enlightened standards. The legit-
imacy of such statutes exists, then, not because of their origins in the
totalitarian systemto which they are related only externally and
not internallybut, rather, in spite of those origins.120
According to an argument structured like this, an indivi-
dual norm in a legal system of extreme injustice does not
forfeit its legal character only if it is itself unjust in the
extreme. Legal character may be forfeited simply because a
norm `typical of the system' shares in the lawless character of
the whole system, even though the norm itself may not cross
the threshold of extreme injustice. Thus, the extension thesis
leads to a typical case of an argument from the whole to its
parts. A single element, because it is part of a whole that has a
particular property, is supposed to have this particular prop-
erty, which it would not have if considered in isolation. Such
an argument from the whole to its parts can indeed easily
explain how it is that, in the case of extreme injustice, the legal
120
Martin Kriele, Recht und praktische Vernunft (Gottingen: Vanden-
hoeck & Ruprecht, 1979), 1256.
64 The Argument from Injustice
character of a system of norms as a whole has consequences
that go beyond a mere summing up of the consequences of
individual norms that are unjust in the extreme. The question
is whether the extension thesis and thereby the argument from
the whole to its parts is acceptable. The decisive point in
answering this question is that what is at issue is not moral
correctness, justice, or the preservation of enlightened stand-
ards but, rather, legal character. In discussing the argument
from injustice applied to individual norms, as expressed in
Radbruch's formula, legal certainty is shown to be a central
argument against denying the legal character of norms that
are authoritatively issued and socially efficacious; only in
cases of extreme injustice, because they are relatively easy to
recognize, was it possible to rebuff the argument adduced in
terms of legal certainty. The same applies to legal systems as a
whole. Legal certainty would be too severely compromised if a
norm below the threshold of extreme injustice were to forfeit
its legal character because it somehow shares in the injustice
of the whole system and is therefore typical of it. A norm can
share to a greater or lesser degree in the injustice of the whole
system. A norm can be to a greater or lesser degree typical of
the system. Should its legal character be revoked by any
degree of participation whatsoever, even a modest one? If
so, how is a norm to be recognized as sharing in the injustice
of the whole system, even if only modestly? Is that already the
case when a norm is occasionally interpreted and applied as
typical of the system, although it could also be interpreted and
applied otherwise? If a modest degree of participation is not
sufficient, what degree is? And how should it be determined in
a way that satisfies legal certainty? These questions demon-
strate that, below the threshold of extreme injustice, every
denial of legal character incurs a serious loss of legal certainty.
Rebuffing the principle of legal certainty is just barely toler-
able in cases of extreme injustice; no further restriction of the
principle is acceptable. This means, when legal character is at
issue, that the criterion of extreme injustice is to be upheld and
that this criterion is to be applied to individual norms and
The Concept of Law 65
only to individual norms. The extension thesis may be plaus-
ible in other contexts, but, as a thesis on legal character, it
cannot persuade. It cannot, therefore, lead to the conclusion
that the lawless or unjust character of a legal system as a
whole gives rise to consequences that go beyond the conse-
quences of applying the argument from injustice to individual
norms.
The Collapse Thesis. The question now is whether the
second interpretation yields something else. Here, the state-
ment that a system of norms forfeits its legal character if it is
by and large unjust in the extreme is interpreted in terms of
the collapse thesis, which, in contrast to the extension thesis,
asserts that only if an individual norm is itself unjust in the
extreme does it forfeit its legal character on grounds of mor-
ality. The collapse thesis is based, then, on the argument from
injustice applied to individual norms, as expressed in Rad-
bruch's formula, and, with reference to individual norms,
nothing is added to that argument. The collapse thesis takes
the legal system as a whole into account in the assertion that
the system collapses as a legal system if very many individual
norms, in particular those important to the system, are denied
legal character. The reason for the collapse is not some sort of
extension or another, but, rather, the simple fact that there is
no longer enough left over to be called a legal system.
The collapse thesis is correct in asserting that the character
of a legal system can change fundamentally if very many of its
individual norms, in particular those important to the system,
are denied legal character. In this case, one can also speak of a
change in the contentual identity of the legal system and, in
this sense but only in this sense, of a collapse of the old
system. What is decisive here, however, is that in another
sense, focused not on contentual identity but on the existence
of a system as a legal system, a collapse is out of the question.
Even when a great many individual norms are denied legal
character on grounds of morality, including many that are
important to the character of the system, even then the system
66 The Argument from Injustice
can continue to exist as a legal system. This presupposes that a
minimum complement of norms, the minimum necessary for
the existence of a legal system, retain legal character. Take a
legal system whose constitution empowers a dictator to issue
norms without constraint. Thirty per cent of the norms issued
by the dictator on the basis of this empowerment are unjust in
the extreme, 20 per cent are unjust but not in the extreme, 20
per cent are neither unjust nor required by justice, and 30 per
cent are required by justice. The 30 per cent that are unjust in
the extreme are the norms that lend to the rogue system its
specific character. The 30 per cent that are required by justice
are, say, norms of contract law, tort law, and social security
law. According to Radbruch's formula, legal character is to be
denied only to that 30 per cent of norms that are unjust in the
extreme. The formula does not apply to the remaining 70 per
cent. Thus, the existence of the legal system would be endan-
gered only if the 30 per cent of norms that are unjust in the
extreme were to have such an effect on the empowering norm
that, as a norm of extreme injustice, it forfeited its legal
character over its entire range. For then the remaining 70
per cent of the norms of the system would also forfeit the
basis of their validity. And then the legal system, as a hier-
archically constructed system, would forfeit its existence and
in this sense collapse. Only a partial class of norms could still
be characterized as a system based on customary and/or
natural law. That would be another system, though, in spite
of the partial identity of the norms.
The latter makes clear that one would have to resort to
relatively artificial constructions in denying legal character to
an empowering norm over its entire range if on its basis
extreme injustice can be or is being enacted. Legal norms
duly issued on the basis of socially efficacious empowering
norms would have to be classified as customary and/or nat-
ural law in order to explain their validity. That this is also
unreasonable in its consequences becomes clear if one simply
changes the dictator in the example into a democratically
elected parliament that makes use, as described, of the
The Concept of Law 67
empowerment to issue norms. Then the possible objection
disappears that it is unjust in the extreme to empower one
single person to issue norms without constraint. The em-
powering norm as such, given this presupposition, would
not be unjust in the extreme. Only a partial class of its pro-
geny is. That means, however, that the 30 per cent of norms
that are unjust in the extreme do not lead to a forfeiture of
legal character on the part of the empowering norm as
such,121
and the legal system as a whole does not collapse.
For the record, then: applying the argument from injustice
to a legal system as a whole does not lead to consequences
that go beyond the consequences of applying the argument to
individual norms.122
(iii) The Argument from Principles
The argument from injustice focuses on an exceptional situ-
ation, that of the statute that is unjust in the extreme. The
argument from principles is addressed to the everyday life of
the law. Its point of departure is an insight of legal method
agreed upon by positivists and non-positivists alike. As Hart
puts it, every positive law has `an open texture'.123
There are
several reasons for this. Of special significance are the vagaries
121
It is typical that the Federal Constitutional Court, in its Concordat
decision, does not mention the problem discussed here. Rather, it restricts
itself to the inverse question, namely, whether all norms based on the
Enabling Act of 24 March 1933 are necessarily to be seen as valid law.
The Court answers in the negative: `Simple recognition of the new system of
competence says nothing about whether the statutes and ordinances issued
on its basis can be recognized as valid law. For that, what is at issue is their
content. They cannot be recognized as valid law if they contravene the
essence and the possible content of the law.' BVerfGE 6 (1957), 309, at
3312 (emphasis in original).
122
The character of the legal system as a whole is of significance in a
different respect, namely, that of the recognition of states and governments
under international law. At issue here is the collision between the principles
of effectiveness and legitimacy, with the former predominant in both the
theory and the practice of such recognition. See e.g. Knut Ipsen, Volker-
recht, 3rd edn. (Munich: C. H. Beck, 1990), at 237.
123
Hart, CL 124, 2nd edn. 128.
68 The Argument from Injustice
of legal language, the possibility of norm conflicts, the ab-
sence of a norm on which to base a decision, and, in certain
cases, the possibility of making a decision even contrary to the
literal reading of a norm.124
One can speak here of an `open
area' of the positive law, which may be more or less broad,
but which exists in every legal system. A case that falls within
the open area shall be called a `doubtful case'.
From the standpoint of positivistic theory, this phenom-
enon can be interpreted in only one way. In the open area of
the positive law, one cannot, by definition, base a decision
on the positive law, for if one could do that, the case would
not be in the open area. Since only the positive law is law, the
judge must decide in the open area, that is, in all doubtful
cases, on the basis of non-legal or extra-legal standards. Ac-
cordingly, he is empowered by the positive law to create new
law essentially as a legislator does, on the basis of extra-legal
standards.125
Over a century ago, John Austin put it into
words this way: `So far as the judge's arbitrium extends,
there is no law at all.'126
By contrast, the argument from principles says that the
judge is legally bound even in the open area of the positive
(issued and efficacious) law, indeed, legally bound in a way
that establishes a necessary connection between law and mor-
ality.127
This is reflected in the decision mentioned above in
the context of judicial development of the law, where the
Federal Constitutional Court says: `The law is not identical
124
Alexy, TLA 1.
125
See e.g. Kelsen, PTL, at § 46 (pp. 3535).
126
Austin, Lectures vol. 2, 664 (Austin's emphasis).
127
In this sense, see also Franz Bydlinski, Juristische Methodenlehre
und Rechtsbegriff (Vienna and New York: Springer, 1982), at 28990,
who calls his argument a `methodological argument'; similarly Ronald
Dworkin, Law's Empire (Cambridge, Mass.: Harvard University Press,
1986), at 87, 410, who conceives of law in terms of interpretation: `Law is
an interpretive concept.' See Claudia Bittner, Recht als interpretative Praxis
(Berlin: Duncker & Humblot, 1988), at 205; Marc Maria Strolz, Ronald
Dworkins These der Rechte im Vergleich zur gesetzgeberischen Methode nach
Art. 1 Abs. 2 und 3 ZGB (Zurich: Schulthess Polygraphischer Verlag, 1991),
at 98118.
The Concept of Law 69
with the totality of written statutes. As against the express
directives of state authorities, there can be in some circum-
stances a greater law . . .'.128
The argument from principles is based on the distinction
between rules and principles.129
Rules are norms that, upon
satisfaction of the conditions specified therein, prescribe a
definitive legal consequence, that is, upon satisfaction of cer-
tain conditions, they definitively command, forbid, or permit
something, or definitively confer power to some end or an-
other. For simplicity's sake, rules may be called `definitive
commands'. The characteristic form of their application is
subsumption. By contrast, principles are optimizing com-
mands. As such, they are norms commanding that something
be realized to the greatest possible extent relative to the fac-
tual and legal possibilities at hand. This means that principles
can be realized to varying degrees and that the commanded
extent of their realization is dependent on not only factual
potential but also legal potential. The legal possibilities for
realizing a principle, besides being determined by rules, are
essentially determined by competing principles, implying that
principles can and must be balanced against one another. The
characteristic form for applying principles is the balancing of
one against another.
This theoretical distinction between norms as rules and as
principles leads to a necessary connection between law and
morality by way of three theses: the `incorporation thesis',
the `morality thesis', and the `correctness thesis'. The necessary
connection that can be established with the help of these theses
is, first, a conceptual connection, second, simply a qualifying
connection, notas the argument from injustice has ita
classifying connection, and it exists, third, only for a partici-
pant in the legal system, not for an observer of the legal system.
128
BVerfGE 34 (1973), 269, at 287.
129
On this theme, see Ronald Dworkin, Taking Rights Seriously (Cam-
bridge, Mass.: Harvard University Press, 1977), at 1445; Alexy, TCR, at
44 110; Jan-Reinard Sieckmann, Regelmodelle und Prinzipienmodelle des
Rechtssystems (Baden-Baden: Nomos, 1990), at 5287.
70 The Argument from Injustice
(a) The Incorporation Thesis
The incorporation thesis says that every legal system that is at
least minimally developed necessarily comprises principles. In
a fully developed legal system, such an incorporation is read-
ily apparent, and the legal system of Germany offers an
instructive example. The German Basic Law or Constitution,
in affirming the principles of human dignity,130
liberty,131
equality,132
the Rechtsstaat or rule of law, democracy, and
the social state,133
has incorporated into the German legal
system, as principles of positive law, the basic principles of
modern natural law and the law of reason and thereby the
basic principles of modern legal and state morality. The same
may be said of all legal systems affirming democracy and the
Rechtsstaat, notwithstanding varying techniques for incorpor-
ating principles and different assessments of them.
No positivist will challenge this, provided he accepts that,
alongside rules, principles can also belong to the legal system.
What he will challenge, however, is that the result is some
conceptually necessary connection between law and morality.
Several arguments are available to him. One is that it is exclu-
sively a question of positive law whether or not any principles
at all are incorporated into a legal system.134
Were this correct,
130
GG art. 1, para. 1: `Human dignity is inviolable. To respect and
protect it is the duty of all state authority.'
131
GG art. 2, para. 1: `Everyone has the right to the free development of
his personality in so far as he does not violate the rights of others or offend
against the constitutional order or the moral law.'
132
GG art. 3, para. 1: `All persons are equal before the law.'
133
GG art. 20, paras. 13: (1) `The Federal Republic of Germany is
a democratic and social federal state. (2) All state authority emanates
from the people. It shall be exercised by the people through elections
and voting and by specific legislative, executive, and judicial organs.
(3) Legislation is subject to the constitutional order; the executive and the
judiciary are bound by statute and law' (trans. altered). GG, art. 28, para. 1:
`The constitutional order in the Lander must conform to the principles of a
republican, democratic, and social state under the rule of law, within the
meaning of this Basic Law' (trans. altered).
134
Hoerster, LR 186; Hoerster, VR 2481.
The Concept of Law 71
the argument from principles would be defeated in the very first
round. It could at best still claim that a connection established
by the positive law exists between law and morality. This would
be compatible with legal positivism, for the positivist does not
deny that the positive law, as Hoerster puts it, `can guarantee
that morality be taken into account'.135
What the positivist
does insist upon is simply that it is up to the positive law to
decide whether or not morality is to play a role.
Is it, then, that not only some legal systems, on the basis of
positive law, comprise norms structured like principles, but,
rather, that all legal systems necessarily comprise norms struc-
tured like principles? This question shall be answered from the
perspective of a participant, namely, a judge who is to decide a
doubtful case, that is, a case that falls within the open area of
the legal system and so cannot be decided on the basis of
preset authoritative material alone. A criterion for whether or
not the judge appeals to principles for support is whether or
not he undertakes to strike a balance. The following propo-
sition seems to be true: In undertaking to strike a balance, one
necessarily appeals to principles for support. For it is neces-
sary to strike a balance precisely when there are competing
reasons, each of which is by itself a good reason for a decision
and only fails to lead directly to a definitive decision because
of the other reason, calling for another decision; reasons like
this are either principles or supported by principles.136
135
Hoerster, LR 186.
136
Gunther claims that the distinction between rules and principles
ought not to be understood as a distinction between two types of norm,
but, rather, solely as a distinction between two types of norm application.
See Klaus Gunther, The Sense of Appropriateness, trans. John Farrell
(Albany, NY: State University of New York Press, 1993), at 21219. By
way of rejoinder, it should be pointed out that a model depicting the
distinction between rules and principles at the level of norms as well as at
the level of application is more comprehensive. Such a model can explain,
for example, why a certain type of application takes place. In any case, one
cannot forgo the distinction between rules and principles, for only with its
help can one adequately reconstruct concepts like the concept of restricting
a right. See Alexy, TCR, at 178222.
72 The Argument from Injustice
A positivist can concede this point and still challenge the
view that what follows from it is that principles are included in
all legal systems in which judges undertake to strike a balance
in doubtful cases. The positivist may claim that the simple fact
that balancing is undertaken does not mean that the principles
being balanced against one another belong to the legal system.
They are simply moral principles, he may argue, or principles
to be qualified in some other way, and the requirement of
balancing one against another is an extra-legal postulate, not
a legal one. A response in support of the argument from
principles is that, for a participant, the legal system is not
only a system of norms qua results or products, but also a
system of procedures or processes, and so, from the partici-
pant's perspective, the reasons taken into account in a pro-
cedurehere, the process of making a decision and justifying
itbelong to the procedure and thereby to the legal system.
An opponent of the argument from principles need not rest
content with this point either. He may object that the simple
fact that the judge takes into account certain reasons, namely,
principles, in the process of making a decision and justifying it
need not lead to the conclusion that they belong to the legal
system. This objection can be dispelled, however, with the
help of the argument from correctness. As explained above,
a judicial decision necessarily lays claim to correctness.137
This claim, because it is necessarily attached to the judicial
decision, is a legal claim and not simply a moral one. Corres-
ponding to this legal claim to correctness is a legal obligation
to satisfy the claim, quite apart from the legal consequences of
failing to do so. The claim to correctness requires, in a doubt-
ful case, that whenever possible a balance be struck and
thereby principles be taken into account. So the claim to
correctness is necessarily unsatisfied if a judge, in a doubtful
case, offers the following reason for choosing one of two
decisions that are both compatible with the authoritative
material: `Had I struck a balance, I would have arrived at
137
See above, this text, at 389.
The Concept of Law 73
the other decision, but I did not strike a balance.' This makes
it clear that in all legal systems in which there are doubtful
cases that give rise to the question of striking a balance, it is
legally required to strike a balance and thereby to take prin-
ciples into account. Thus, in all legal systems of this kind,
principles are, for legal reasons, necessary elements of the
legal system.
There is a last resort for the opponent of the argument from
principles. He may claim that there can be legal systems in
which no case is felt to be doubtful, so that in no case does the
question of striking a balance arise. Since decisions can be
made in such legal systems without taking principles into
account, he may argue, it is not correct to say that all legal
systems necessarily comprise norms structured like principles.
I shall not pursue here the interesting empirical question of
whether there have ever been legal systems in which no case
was felt to be doubtful, so that in no case did the question of
striking a balance arise. In any event, such a system would not
even be a minimally developed legal system. Thus, the
following proposition is true: Beginning at a minimum level
of development, all legal systems necessarily comprise prin-
ciples. This is a sufficient basis for establishing, by way of the
argument from principles, a necessary connection between
law and morality. The thesis that all legal systems necessarily
comprise principles can thereforewithout thereby defeating
the argument from principlesbe limited in accordance with
the proposition above, namely, to legal systems that are at
least minimally developed.
(b) The Morality Thesis
That all legal systems, beginning at a minimum level of devel-
opment, necessarily comprise norms structured like principles
is not enough to justify the conclusion that a necessary con-
nection exists between law and morality. Such a connection is
not yet established, then, by the simple fact, say, that the basic
74 The Argument from Injustice
principles of modern legal and state morality are incorporated
into all legal systems affirming democracy and the
Rechtsstaat. Every positivist can say that the incorporation
of precisely these principles is based on positive law. And that
can be sharpened into the statement that it is always a ques-
tion of the positive law whether or not principles belonging
to a legal system establish a connection between law and
morality.
In order to respond here, one must distinguish between two
versions of the thesis of a necessary connection between
law and morality: a weak and a strong version. In the weak
version, the thesis says that a necessary connection exists be-
tween law and some morality. The strong version has it that
a necessary connection exists between law and the right or
correct morality. Here, only the weak version is of interest
initially, that is, the thesis that the necessary presence of prin-
ciples in the legal system leads to a necessary connection
between law and some morality or another. This thesis shall
be called the `morality thesis'.
The morality thesis is correct if, among the principles to be
taken into account in doubtful cases in order to satisfy the
claim to correctness, some principles are always found that
belong to some morality or another. That is in fact so. In
doubtful cases, the task is to find an answer to a practical
question where an answer cannot be definitively drawn from
the preset authoritative material. To answer a practical ques-
tion in the legal arena is to say what is obligatory. One who
wants to say what is obligatory but cannot support his answer
exclusively by appeal to the decisions of an authority must
take into account all relevant principles if he wants to satisfy
the claim to correctness. But among the principles relevant to
the solution of a practical question are always principles that
belong to some morality or another. These need not be
as abstract as the principles of liberty or the Rechtsstaat.
Often, they are relatively concrete, as are the principles of
non-retroactivity or environmental protection. In terms of
content, too, somesay, the principle of racial segregation
The Concept of Law 75
can be sharply distinguished from the principles of a demo-
cratic constitutional state. What is significant here is only that
these principles are at the same time always principles of some
morality or another, whether or not this morality be correct.
A positivist could object that this is not incompatible with
his theory. Indeed, legal positivism emphasizes precisely the
requirement that the judge decide in doubtful cases on the
basis of extra-legal standards, a requirement that includes
the decision based on moral principles.138
This objection,
however, misses the decisive point, which is that principles,
first, according to the incorporation thesis, are necessarily
components of the legal system and, second, according to
the morality thesis, necessarily include principles that belong
to a morality. This dual quality of necessarily belonging at the
same time to law and to morality means that the judge's
decision in doubtful cases is to be interpreted otherwise than
in positivistic theories. Principles that are, according to their
content, moral principles are incorporated into the law, so
that the judge who appeals to them for support is making his
decision on the basis of legal standards. Calling on the am-
biguous dichotomy of form and content, one can say that,
according to form, the judge's decision is based on legal
reasons, but, according to content, it is based on moral
reasons.
(c) The Correctness Thesis
What has been shown so far is simply that the argument from
principles leads to a necessary connection between law and
some kind of morality. The obvious objection is that this is
too little. For when one speaks of a necessary connection
between law and morality, one generally means a necessary
connection between law and theor acorrect morality.
138
See Hart, CL, at 199, 2nd edn., at 2034: `The law of every modern
state shows at a thousand points the influence of both the accepted social
morality and wider moral ideals.'
76 The Argument from Injustice
That is especially true from the participant's perspective. This
objection would in fact undermine the non-positivist if the
argument from principles were not successful in establishing
some kind of a necessary connection between law and correct
morality. That the argument does succeed in establishing just
such a connection is the substance of the correctness thesis.
The correctness thesis is the result of applying the argument
from correctness within the framework of the argument from
principles.
The correctness thesis presents no problems if the content
of principles of positive law is morally required or at least
morally permitted. An example would be the six basic prin-
ciples of the German Basic Law or Constitution, namely, the
principles of human dignity, liberty, equality, the Rechtsstaat
or rule of law, democracy, and the social state. As optimizing
commands, these principles require realization to the greatest
possible extent. Together they require a realization that ap-
proximates a legal ideal, namely, the ideal of the democratic,
social Rechtsstaat.139
If these principles or their numerous
subprinciples are relevant in a doubtful case, then the judge
is legally obligated to undertake an optimal realization of
them, geared to the concrete case. He is to answer a legal
question that, according to its content, is also a question of
political morality. At least some of the arguments with which
the judge justifies the balance he strikes have, in terms of
content, the character of moral arguments. It follows, then,
that the claim to legal correctness necessarily attached to the
decision includes a claim to moral correctness. Therefore, in
legal systems whose positive law principles have a content that
is morally required or at least morally permitted, a necessary
connection exists between law and correct morality.
An opponent of the argument from principles may object
that this leads to a necessary connection between law and
correct morality only in morally vindicated legal systems,
139
Ralf Dreier, Rechtsbegriff und Rechtsidee (Frankfurt: Alfred Metz-
ner, 1986), 301.
The Concept of Law 77
not, however, to a quintessential necessary connection that
applies to all legal systems. He may refer in this context to
a legal system like that of National Socialism, which, with
its principles of race and absolute leadership (the Fuhrer-
principle),140
comprised principles reflecting a morality
altogether different from that reflected by the principles of
the German Basic Law. How is it that here, he may ask, the
application of the argument from correctness within the
framework of the argument from principles is supposed to
lead to a necessary connection between law and correct mor-
ality?
It does not matter at this point that here the argument from
principles meets the argument from injustice. What is decisive
is that even the judge who applies the principle of race and the
Fuhrer-principle lays claim to correctness with his decision.
The claim to correctness implies a claim to justifiability. This
claim is not limited to the justifiability of the decision in terms
of some kind of morality leading to the correctness of the
decision; rather, it refers to the correctness of the decision in
terms of a justifiable and therefore correct morality. The
necessary connection between law and correct morality is
established in that the claim to correctness includes a claim
to moral correctness that also applies to the principles on
which the decision is based.
A critic could object that in this way the link between law
and correct morality is so dissipated that one can no longer
speak of a necessary connection. The concern now is only
with a claim and no longer with its satisfaction, and, in
addition, despite the emphasis on correct morality, there is
no talk of what correct morality is. Both of these observations
140
See e.g. Wilhelm Stuckart and Hans Globke, Kommentare zur
deutschen Rassengesetzgebung, vol. 1 (Munich and Berlin: C. H. Beck,
1936), at 7: `The responsible leaders of the state are to examine the racial
composition of the people entrusted to them and are to undertake due
measures preventing at least the further loss of the best racial values and
strengthening as much as possible the ethnic core.' And, at 13: `From the
idea of race flows inevitably the idea of the Fuhrer. Thus, the ethnic national
state must of necessity be a Fuhrer-state.'
78 The Argument from Injustice
are correct, but they do not spell the downfall of the connec-
tion thesis.
It is easy to see that, outside the realm of the argument from
injustice, that is, below the threshold of extreme injustice, the
claim alone and not its satisfaction can establish a necessary
connection between law and correct morality. To focus on the
satisfaction of the claim is to say too much. It is to say that the
law, including every single judicial decision, necessarily satis-
fies the claim to moral correctness, in short, that the law is
always morally correct. The latter implies that whatever is not
morally correct is not law. A thesis that strong cannot be
defended, as shown in the discussion of the argument from
injustice. Thus, the issue here cannot be a classifying connec-
tion, it can only be a qualifying connection. Below the thresh-
old of extreme injustice, a violation of morality means not
that the norm or decision in question forfeits legal character,
in other words, is not law (a classifying connection), but,
rather, that the norm or decision in question is legally defect-
ive (a qualifying connection). The claim to correctness that is
necessarily attached to the law, because it includes a claim to
moral correctness, is the reason that, below the threshold of
extreme injustice, a violation of correct morality leads not,
indeed, to the forfeiture of legal character, but necessarily to
legal defectiveness. The classifying connection can be called
`hard', the qualifying connection, `soft'. Even soft connections
can be necessary.
The remaining objection is that simply referring to correct
morality is too little. This objection cannot be dispelled by
providing a comprehensive system of moral rules that permit
in every case a certain judgment about whether or not these
rules are being violated by a legal norm or a judicial decision.
Beyond the threshold of extreme injustice, there is broad
agreement about what violates morality, but below this
threshold, controversy prevails. This does not mean that,
below the threshold, there are no standards whatsoever for
what is just and what is unjust. The key is the claim to
justifiability implicit in the claim to correctness. The claim
The Concept of Law 79
to justifiability leads to requirements that must be satisfied at
a minimum by morality in order that this morality not be
identified as false morality, and it leads to requirements that
must be satisfied to the greatest possible extent by morality in
order that this morality stand a chance of being theor a
correct morality.141
An example of the failure to satisfy these
requirements is the justification of the principle of race as set
out in the 1936 commentary of Stuckart and Globke:
Based on the most rigorous scientific examination, we know today
that the human being, to the deepest unconscious stirrings of his
temperament, but also to the smallest fibril of his brain, exists in the
reality and the inescapability of his ethnic and racial origins. Race
stamps his spiritual countenance no less than his outward form. It
determines his thoughts and sensibilities, his strengths and propen-
sities, it constitutes his particular character, his nature.142
This justification does not satisfy the minimum requirements
of a rational justification. Consider only the claim that race
determines the thoughts of the individual. Far from reflecting
`the most rigorous scientific examination', this claim is empir-
ically false, which the most quotidian of experience demon-
strates.
The qualifying or soft connection that emerges when the
legal system is considered as a system of procedures, too, from
the perspective of a participant leads not to a necessary con-
nection between law and a particular morality to be labelled
as correct in terms of content, but, rather, to a necessary
connection between law and the idea of correct morality as a
justified morality. This idea is far from empty. Linking it with
the law means that not only are the special rules of juridical
justification part of the law, but the general rules of moral
argumentation are too, for whatever correctness is possible in
the area of morality is possible on the basis of these rules.
They thwart considerable irrationality and injustice. What is
141
See Alexy, TLA, at 187205.
142
Stuckart and Globke, Kommentare zur deutschen Rassengesetzgebung
(n. 140 above), 10.
80 The Argument from Injustice
more, the idea of correct morality has the character of a
regulative idea in the sense of a goal to be pursued.143
Thus,
the claim to correctness leads to an ideal dimension that is
necessarily linked with the law.
143
See Immanuel Kant, Critique of Pure Reason (1st pub. 1781, 2nd edn.
1787), trans. and ed. Paul Guyer and Allen W. Wood (Cambridge: Cam-
bridge University Press, 1997), at A644/B672 (p. 591) (trans. altered): `On
the contrary, transcendental ideas have an excellent and indispensably
necessary regulative use, namely, that of directing the understanding
toward a certain goal, the prospect of which has the directional lines of all
its rules converging into one point.'
The Concept of Law 81