B. Legal and Moral Validity

The collision between legal and moral validity has been covered above in the context of the critique of positivistic concepts of law.’¹⁹ The sole concern here, then, is to compare

¹⁴⁹ See above, this text, al 20 81.

the results of that enquiry with the resolution of the collision between legal and social validity.

(i) Systems of Norms

A system of norms that neither explicitly nor implicitly lays claim to correctness is not a legal system and therefore cannot be legally valid. This has few practical consequences, for actually existing legal systems regularly lay claim to correct­ness, however feebly justified the claim may be.

Practically speaking, significant problems first turn up where the claim to correctness is indeed made, but remains unsatisfied to such a degree that the system of norms is classified an unjust or a lawless system (Unrechtssystem). The issue then is the application of the argument from injus­tice to a system of norms as a whole. It appears on first glance that a usable formula might correspond to the one used in resolving the collision between legal and social validity, that is, to say here that a system of norms forfeits its legal validity if it is by and large unjust in the extreme. The discussion of the extension and the collapse theses has shown, however, that this solution is out of the question.^[151] Application of the argument from injustice is limited to individual norms. Only when, owing to the argument from injustice, legal character is denied to so many individual norms that there is no longer a minimum complement of norms, the minimum necessary for the existence of a legal system, only then does the system cease to exist as a legal system. That is not, however, a consequence of applying the argument from injustice to the legal system as a whole, but a consequence of the consequences of applying the argument from injustice to individual norms.

An adequate concept of law turns on the relation of three elements to one another—authoritative issuance, social effi­cacy, and correctness of content.¹⁵¹ It is now clear that au­thoritative issuance must be joined by social efficacy and correctness of content not in a general, equally weighted rela­tion but, rather, in an ordered, hierarchical relation.

(ii) Individual Norms

Individual norms forfeit their legal character and thereby their legal validity if they are unjust in the extreme. In its structure, this criterion corresponds to the formula (hat an individual norm forfeits its legal validity if it fails to exhibit a minimum social efficacy or prospect of social efficacy.¹⁵² Both statements focus on a limiting case. Instead of saying that an individual norm must exhibit a minimum social efficacy or prospect of social efficacy, one could say that the norm may not be extremely inefficacious socially or have a very slight prospect of social efficacy. Conversely, the formula that a norm forfeits legal validity if it is unjust in the extreme could be replaced with the formula that a condition for the legal validity of an individual norm is that the norm exhibit a minimum moral justifiability.¹⁵ ' The latter admittedly invites misinterpretation.

^IM Sec above, this text, at 13.

¹⁵² Sec above, this text, at 91.

¹⁵³ See Ralf Dreier, ‘Recht und Moral’, in RM/ 180-216, at 198. cannot be justified to a marginal extent either. Nevertheless, a norm that is simply unjust can be legally valid. According to the formula focused on a minimum, however, this presup­poses that the norm exhibit a minimum moral justifiability. The contradiction here can be resolved by applying the con­cept of a minimum moral justifiability not to individual norms as such, but to their legal validity. Because there are moral advantages to (he existence of a legal system, the legal validity of a norm belonging to the system can exhibit a minimum moral justifiability even if the norm by itself, being unjust, does not do this. Thus, when the formula that focuses on a minimum is applied to moral justifiability, it presupposes complicated deliberations, giving the advantage to the straightforward criterion of extreme injustice.

The conclusion, then, is that the respective roles of social and moral validity within the framework of the concept of legal validity arc structurally the same in terms of individual norms. In both, the focus is on a limiting case alone, giving expression to the fact that authoritative issuance within the framework of a socially efficacious legal system is the domin­ant criterion for the validity of individual norms. This conclu­sion is borne out every day in the work of the jurist.

3.