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 morality. One asks whether contravention of some moral criterion or another exacts from the norms of a system of nonns the character of legal norms, or from the whole system of norms the character of a legal system.

(i) Individual Nonns

Probably the best-known version of the argument from injust­ice applied to individual norms stems from Gustav Radbruch, whose famous formula reads:

The conflict between justice and legal certainly 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.·¹

This formula is the basis for the decision on citizenship set out above/² as well as for a number of other decisions of the

’’ Drcicr, ‘Dor BcgrilT des Rcchts’ (n. 5 above), 99. Other names arc the argument from tyranny, the lex corrupta argument, the argument from perversion of law.

⁵¹ Radbruch, GUR 107, KG'/l 3 89.

⁵² BVerfGE 23 (1968), 98, at 106. Sec above, this text, at 5 7.

Federal Constitutional Court and (he Federal Supreme Court of Germany? '

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 per­spective. How would the case of the denaturalized Jew, call him ‘/F, 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 (he 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 obser­ver, 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 (his standpoint, such an inclusion is conceptually impossible. Assume that the report of our obser­ver 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 414-15; ibid. 54 (1981). 53. at 67-8; BGHZ 3 (1951), 94. at 107; ibid. 23 (1957), 175, at 181; BGHSt 2 (1952), 173. at 177; ibid.

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 authori­tatively issued in accordance with the criteria for validity that are part of the currently efficacious legal system. Thus it is clear that in the observers 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 conceptu­ally impossible. There is no adequate rejoinder here in coun­tering that our observer can conclude his report straightaway by pulling 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’.^[31] For the record (hen: From the perspective of an observer. Radbruch’s connection thesis cannot be supported by appeal to a conceptually neces­sary connection between law and morality.

In addition to this conceptual or analytical argument, there is, by way of an expcdicntial consideration, a normative argu­ment. Norbert Hoerster has claimed, first, that there is a need for a value-neutral designation for authoritatively issued and socially efficacious norms like Ordinance 11 discussed above, and, second, that there is no useful alternative to the expres­sion ‘law’.^[32] In terms of the observer’s perspective, I agree with this.^{[33] [34] Thus, analytical as well as normative consider­ations 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 cor­rect.}

(ii) Legal Systems

What applies to an individual norm need not apply to a legal system as a whole.⁵' The question, then, is whether a concep­tually 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 contra­vention 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/⁸ By contrast, the connection is between material moral criteria and the legal system when Otfried Hoffe claims that a system of norms that does not meet certain fundamental criteria for justice is not a legal system?⁹ Hoffe determines these funda­mental 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 (he 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 (he ruled possible. Imagine a large number of people who are subject to armed desperadoes. The subjects have no rights, and among the desperadoes them­selves, every exercise of force is allowed. Except for this permissory norm, there is no general norm.⁶² The armed

Otfried Hoffe, (7ew/«/gA'of law. Kclscn, PTL § 6(c) (p. 48) (trans, altered).

^1,2 Here Kelsen would not even speak of a 'robber band’. The desper­adoes, lacking a proscription of the use of force among themselves, are not a community and therefore not a 'band' cither: ibid. § 6(c) (p. 47). desperadoes issue to their subjects individual commands that are sometimes contradictory, always changing, and some­times 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 (he desperadoes organize themselves into a gang of bandits, which presupposes at (he least the introduction among them­selves 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 maintain­ing 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.

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 ^[35] development of (he people. The killing and robbing of governed individuals, acts that in point of fact sene 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 form - say, on the strength of the unanimous decision of three members of the group of governors—and 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 gov­ernor system from (he desperado system and (he bandit system? The difference is not (hat here general rules of some kind prevail, for that is already the case in the bandit system. ?\nd 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 ‘argu­ment 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.

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).

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, rele­vant 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 thesis—albeit only in extreme and indeed improb­able cases reaches 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.