The Basic Positions

The central problem in the debate surrounding the concept of law is the relationship of law and morality. Notwithstanding a discussion that reaches back more than two millennia.^[2] there remain two basic, competing positions the positivistic and the non-positivistic.

All positivistic theories defend the separation thesis, which says that the concept of law is to be defined such that no moral elements are included. The separation thesis presup­poses that there is no conceptually necessary connection between law and morality, between what the law commands and what justice requires, or between the law as it is and the law as it ought to be. The great legal positivist Hans Kelsen captured this in the statement, ’Thus, the content of the law can be anything whatsoever.’^[3]

In the positivistic concept of law, then, there are only two defining elements: that of issuance in accordance with (he system, or authoritative issuance, ’ and that of social efficacy.

The numerous variations of legal positivism ’ stem from dif­ferent interpretations and assessments of these two defining elements.⁵ Common to all of the variations is the notion that what law is depends solely on what has been issued and/or is efficacious. Correctness of content—however achieved counts for nothing.

By contrast to the positivistic theories, all non-positivistic theories defend the connection thesis, which says that the concept of law is to be defined such that moral elements are included. No serious non-positivist is thereby excluding from the concept of law either the element of authoritative issuance or the clement of social efficacy. Rather, what distinguishes the non-positivist from the positivist is the view that the concept of law is to be defined such that, alongside these fact-oriented properties, moral elements are also included. Here, too, very different interpretations and assessments are possible.

accordance with (he system, then, these norms establish norm-issuing authority. Given this premiss, what is issued in accordance with the system is authoritatively issued, and vice versa. The two expressions are not used synonymously when ‘issuance in accordance with the system' refers solely to competence norms, while ‘authoritative issuance’ refers solely or also to the actual power to issue norms. It suffices here simply to point out these variations in meaning. Since the power factor as an aspect of effectiveness can be classified under social efficacy, the two expressions for issuance will be used synonymously in what follows. (The original text of (his footnote has been modified by the author.)

⁴ Sec Walter Ott, Der Rechtspositivismus, 2nd edn. (Berlin: Dunckcr & Humblot. 1992). at 32-116.

See Ralf Dreier, “Der Begriff des Rechts’, in Drcicr. Rechl—Staat— I'ernunfi (Frankfurt: Suhrkamp. 1991). 95-119. at 96.

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