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.

(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 (hat individual legal norms and individual 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 (he 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 correct­ness is mistaken in saying that a claim to correctness is neces­sarily 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.

(1) X is a sovereign, federal, and unjust republic.

There is something defective about this constitutional art­icle.⁶³ 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 provid­ing for a republic, the new article scraps a pre-existing mon­archy, and one might assume further that the oppressed

For a similar argument, see Neil MacCormick, ‘Law, Morality and Positivism’. Legal Studies, 1 (1981). 131-45, at 144, repr. in MacCormick and Ota Weinberger, An Institutional Theory of Law (Dordrecht: Reidel, 1986). 127-44, at 141.

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 framer—if the injustice provision were simply a technical defect- would 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 repub­lic 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.

The explanation could lie in the violation of a widespread though not a necessary convention for drawing up constitu­tional 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 circum­stances 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 correctness—in this case as, above all. a claim to justice—is necessarily attached to the act of framing a constitution. A constitutional framer gives rise to a performative contradiction if (he 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.^[36]

In the second example addressing the objection to the argument from correctness, a judge hands down the deci­sion:

(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 (he 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 his decision this erroneous assumption. Clearly what we have here is more than a violation of social or legal rules.^[37] 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, how­ever 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 conceptu­ally necessary connection between law and morality is dem­onstrated.

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 strategics 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 correct­ness establishes at best a qualifying, not a classifying connec­tion. 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.

(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. Ils 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. Il 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 injust­ice 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 sur­rounding Radbruch's formula cannot be decided on the basis of analytical or conceptual arguments alone. What matters is expedient or adequate concept formation (hat is justified by normative arguments.⁶⁹ To be sure, the argument from cor­rectness has a role to play in evaluating normative arguments for and against the argument from injustice. The earlier state­ment 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 sur­rounding Radbruch's formula can be essentially summarized

^i,x See above, this text, at 28-31.

⁶⁹ Sec above, this text, at 20-3.

under eight rubrics—language, clarity, effectiveness, legal cer­tainly, 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-positivist—say, one who will not classify Ordinance 11 as law—for failing ‘to say which ordinary word in our language could substitute for his morally charged concept of law. lending it a value-neutral function.’^[38] The non-positivist. according to Hoerster, loses out on the possi­bility 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.^[39] 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 partici­pated. Similarly, a judge’s decision based on Ordinance 11 is, for the observer, the result of a procedure, namely, a norm­applying procedure, in which the observer has not partici­pated. 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 participant—say, the judge—also 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, namely, that it is the point of departure for a norm-applying procedure in which he participates and whose result is accom­panied 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 differ­ent 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 unsatisfac­tory 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 indi­vidual 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 arc 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 inclu­sion of moral elements in a concept of law that is seen as adequate from the participant’s perspective. On the contrary. if substantive reasons speak in favour of such inclusion, lin­guistic usage has to fall in line.

Clarity. The second argument in the debate surround­ing 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 arc 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 accept­ed... (W]hcn we have the ample resources of plain speech we must not present the moral criticism of institutions as propositions of a disputable philosophy.'²

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.^{[40] [41]} 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.^[42] Jurists are accustomed to dealing with complicated concepts. For the citizen, what 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 arc 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 al all in the concept of law.

/X 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’.^{[43] [44] The positivist can discuss the questions associated with statutory injustice ‘unveiled as what they arc, 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’.'6}

Is this objection justified? Is the problem being cloaked, veiled, and hidden by the non-positivist? The answer is no. The non-positivist docs not deny the ethical character of the problem. He simply claims that, in the case of extreme injust­ice. 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 injustice, away from the standpoint of morality to the stand­point 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’ 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 cither.

Effectiveness. Before the era of National Socialism in Ger­many.^{[45] [46] Radbruch was a legal positivist not in terms of justi­fication, to be sure, [47] but in terms of result, at any rate where the judge is concerned.[48] 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’.[49] 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- staatY like Nazi Germany.[50] Hart objected that it was naive to assume that a non-posilivislic definition of the law could have any effect on statutory lawlessness.85 Hart’s argument, directed to the effectiveness of the non-positivistic concept of law, was fine-tuned by Hoerster. According to him, the expect­ations 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 system—whether the legal phil­osopher calls it ‘valid law’ or not—possesses, apart from its immor­ality, 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.⁸*

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 obli­gations, encourages a critical stance vis-à-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 jurispru­dence prevailing in a particular legal community, leads to an uncritical legitimation of the state coercive system constitut­ing this community.’⁸⁶ Within the framework of the argument

*·’ Cf. Hart, /'.S’L.W 617-18, repr. Hart, Essays 74; Hart. CL 205, 2nd edn. 209-10.

^K1 Hoerster. l.R 185.

⁸⁵ ibid. 186.

^x519-33.

There is, then, a double conclusion to report. Below the threshold of extreme injustice, the weak connection thesis—as expressed, say, in Radbruch’s formula—does not run the risk of uncritical legitimation, because a conflict between law and morality at this level docs 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 re­quirements 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- tcntual agreement can be claimed even on the basis of con­ceptual separation.

Within the framework of the argument adduced in terms of effectiveness, the other objection to the non-positivislic con­cept 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. Il 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.⁹¹ Either way, he has to reckon with personal conse­quences. and his willingness to make this sacrifice turns on factors other than the definition of the concept of law.

Still, there arc 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

’¹ Sec Ott. ‘Die Radbruch’schc Formcl. Pro und Contra’ (n. 73 above), at 346.

⁹⁵ ibid. 347.

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 (he legal practitioners’ consensus by in­timidating individuals, making personnel changes, and rewarding conformity. Il is al 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 as­sumption, no compelling objection to the non-positivistic concept of law results. To defend his position, the non-posi- livist does not need to show that, in a rogue stale, 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 stale is successfully established, legal concepts may no longer have much effect. Only after the collapse of such a stale are essential differences between the positivist and the non-positivisl evident. Still, even in the successfully estab­lished rogue slate, 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 stale 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 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 con­cept 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 positiv­istic 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. Retro­active 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 stale, commit or partici­pate in committing lawless or unjust acts that are covered by statute. Thus, even for persons who sec 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 stale. 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 rale 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 vari­ants of non-positivisin that take as their point of departure a 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 magni­fied into the argument from anarchy. This need not be pur­sued further, however, for no serious non-positivist defends such views. Here, the question is simply whether or not legal certainly 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 epis­temological 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’.^{[51] [52] 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, how­ever, when compared with the uncertainties generally attending knowledge of the law. The non-posilivislic connec­tion 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 certainly must be weighed against the value of material justice.⁹ Radbruch's formula makes an assessment that fundamentally gives precedence to 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.^9X And that, like every pursuit of an absolute principle, has an air of fanaticism about it.

Relativism. The argument adduced in terms of legal cer­tainly 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 (he possibility of deciding contrary to the statute. Hoerster paints a drastic picture:

There is no guarantee, not even the mere likelihood, that the mor­ality 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 arc in some sense or another more enlightened (say. ’more humane’ or ‘more just’) than the positive legal norms of the stale in question... Il is not exactly as if there were only as the opponents of legal positivism are always suggesting—the judge or the citizen who, confronted with ’Nazi statutes’, would rather pay heed to a humane morality. There is just as well (he 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."

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 non­positivist presupposes an at least rudimentary non-relativistic ethics. It is no accident (hat Radbruch. before 1933, establishes

On the concept of an absolute principle, sec Alcxy, TCR, at 62-4.

⁹⁹ Hoerster. I7< 2482.

his in effect positivistic view¹"" 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 ques­tion 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, relativism simply our method of observation until now—is itself admitted as a building block into our system.^{[53] [54]}

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.^[55]

The references to historical experience—‘the work of cen­turies’—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.

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 mela- ethical problem of the justifiability of moral judgments. I shall not discuss this problem here,^{[56] [57]' 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 only—but could al least—point to the fact of a currently broad consensus, which is not in itself, to be sure, a refutation in the strict sense but which docs, for legal practice, as mentioned above, approach a refutation.}

What (his 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, al any rale in a stale 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 ra­tional grounds for not resisting democratically enacted stat­utes by appealing to a ‘Nazi morality’. Only in a society already given over in its majority to a ‘Nazi morality’ docs a serious risk exist that a judge, appealing to a non-positivistic concept of law, will deny legal character to just statutes be­cause 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.

Democracy. What has been said here about the objection based on relativism can be applied to another possible objec­tion 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 legisla­tor.^[58] Since this would amount to an intrusion of the judi­ciary 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 char­acter 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 repre­sented here would have to reject any judicial review whatso­ever of the legislator's commitment to fundamental rights.

Dispensability. Radbruch's formula is of practical signifi­cance above all after the collapse of a rogue regime. The Federal Constitutional Court’s decision on citizenship dis­cussed 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.^[59]

In order to assess correctly the objection based on dispens­ability, criminal cases must be distinguished from other cases. Art. 103, para. 2, of the Basic Law^[60] formulates an elemen­tary principle of the Rechisstaat, namely, nulla poena sine lege™¹ as a norm of positive constitutional law, (hereby 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 enact­ment of a retroactive ordinary statute would render dispens­able 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 lege—and thereby exceptions to the principle nullum crimen sine lege,™* too. Such exceptions would be problematic at the least, however, under a consti­tution that—as 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 dispens­able, 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

"^r ‘Without a law, there is no punishment.’

^Ins ‘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 Länder, the participation in principle of the Lander in legislation, or the basic principles laid down in articles 1 and 20 shall be inadmissible.’

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 (he judge ought to do if (he legislator, for whatever reason, fails to act and if the lawless or unjust statute cannot, on the basis of currently prevailing constitu­tional 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 (he 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 legisla­tive 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, (hen 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 represent­ing, 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 indis­pensable: respect for the rights of (he citizen and the claim to correctness.

Candour. The objection based on candour says that, in criminal law cases, the non-positivislic 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 provi­sions 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 pre­scribed ‘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 indi­rectly can be criminally punishable even if the direct perpetra­tor—here, the National Socialist court—acts 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 correct­ness of this criminal law construction need not be discussed here.”² Nor is it of any concern that Hart, as he himself later

"" OLG Bamberg, reported in Süddeutsche Jurisfen-Zeitung, 5 (1950), 207-9.

¹¹¹ ibid. 208 9 (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 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 in­justice because it simply prescribes an omission, then one need only consider the hypothetical case of a woman who de­nounces her husband because, in a dictatorship, he disobeys a command, based on a statute, to commit homicidal acts of extreme injustice. Hollowing the opinion of the Court in Bam­berg, 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 punish­ment may be. to have pursued it openly in this case would al 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 pre­cious principle of morality endorsed by most legal systems."⁵

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

1)4

115

Hart. CL 254-5. 2nd cdn. 303-4.

Hart. PSLM 619, repr. Hart, Essays 76-7. ibid. 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 effica­cious 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 crim­inal punishment of those deeds alone whose injustice is so extreme and therefore so evident that it is more easily recog­nizable than the injustice in many run-of-the-mill criminal law cases.^[61] That is at any rate acceptable when—as in the case of denunciation it is not that norms establishing criminal liabil­ity are produced with the help of a non-positivistic concept of law, but, rather, that statutory injustice leading to an exclu­sion 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 recog­nizable 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 lime 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 cither.

The Results of the Enquiry into the Debate surrounding Rad- hruch’s Formula. Applied to individual norms, the argument from injustice—in the weaker version expressed in Radbruch’s formula—fares 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 frame­work 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 slate. The necessity of applying the non-posilivistic concept of law, as explained in discussing the objection based on dispens­ability, takes on special significance after the collapse of a rogue stale. If the new legislator fails to act, and if the lawless or unjust older statute cannot, on the basis of currently pre­vailing constitutional law, be declared irrelevant for the deci­sion al 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 justifica­tion for al least some minimum moral requirements, a core repertory of elementary human rights. Should such justifica­tion 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

I he question arises of whether the argument from injustice can be applied not only to individual norms but also to legal 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.¹¹ 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 ex­treme injustice. Then the question is whether there are conse­quences 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'.^{1 ls} According to Kriele, this condition is satisfied when the legal system rests on the principles of the democratic constitutional state. Il is not satisfied in totalitarian dictatorships. Kriele's entire argu­ment 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: system of norms forfeits its legal character if it is by

^1,7 See above, this text, at 34.

^11>' Marlin Kriele. Recht und praktische Vcrnunft (Gollingen: Vanden- hoeck & Ruprecht, 1979). 117.

¹¹⁹ ibid. 125.

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 (hat 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 legit­imacy of such statutes exists, then, not because of their origins in the totalitarian system—to which they are related only externally and not internally—but. rather, in spile of those origins.¹²'*

According to an argument structured like this, an indivi­dual 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 prop­erty, 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 ^[62] 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 stand­ards 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 arc 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 certainly. 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 demon­strate 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 toler­able 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 only to individual norms. The extension thesis may be plaus­ible 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 conse­quences 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 state­ment 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 docs it forfeit its legal character on grounds of mor­ality. 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 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 (he 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 endan­gered only if the 30 per cent of norms that arc 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 hier­archically 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 nat­ural 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 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 em­powering norm as such, given this presupposition, would not be unjust in the extreme. Only a partial class of its pro­geny 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 situ­ation. 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 arc the vagaries

¹²¹ It is typical that the Federal Constitutional Court, in its Concordat decision, docs 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 arc 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 331-2 (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. Sec e.g. Knut Ipscn. Vdtker- recht. 3rd edn. (Munich: C. H. Beck. 1990), at 237.

¹²⁵ Hart. CL 124. 2nd edn. 128.

of legal language, (he possibility of norm conflicts, (he ab­sence 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.^[63] 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 phenom­enon 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, (hat is. in all doubtful cases, on the basis of non-legal or extra-legal standards. Ac­cordingly, he is empowered by the positive law to create new law essentially as a legislator does, on the basis of extra-legal standards.^[64] 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.’^[65]

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 mor­ality.^[66] 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 with the totality of written statutes. As against the express directives of slate authorities, there can be in some circum­stances a greater law...’.^,2K

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 cer­tain conditions, they definitively command, forbid, or permit something, or definitively confer power to some end or an­other. For simplicity’s sake, rules may be called 'definitive commands'. The characteristic form of their application is subsumption. By contrast, principles arc optimizing com­mands. As such, they are norms commanding that something be realized to the greatest possible extent relative to the fac­tual and legal possibilities al 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, not—as the argument from injustice has it—a classifying connection, and it exists, third, only for a partici­pant in the legal system, not for an observer of the legal system.

BVerfGE 34 (1973). 269. at 287.

¹²⁹ On this theme, sec Ronald Dworkin. Taking Rights Seriously (Cam­bridge. Mass.: Harvard University Press. 1977), at 14-45; Alexy, TCR, at 44-110; Jan-Rcinard Stockmann. Regehnodelle und Prinzipienmodelle des Baden-Baden: Nomos, 1990). at 52-87.

(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 read­ily 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.^[67]" 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 (he Rechtsstaat, notwithstanding varying techniques for incorpor­ating 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 exclu­sively a question of positive law whether or not any principles at all are incorporated into a legal system.¹³⁴ Were this correct, 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 Hocrstcr puts it, ‘can guarantee that morality be taken into account’.^I3> 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 struc­tured 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 propo­sition seems to be true: In undertaking to strike a balance, one necessarily appeals to principles for support. For it is neces­sary 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.^{[68] [69]}

A positivist can concede this point and still challenge (he 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 docs 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 (he partici­pant's perspective, the reasons taken into account in a pro­cedure—here, the process of making a decision and justifying it—belong 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.¹³ This claim, because it is necessarily attached to the judicial decision, is a legal claim and not simply a moral one. Corres­ponding 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 doubt­ful 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 arc both compatible with the authoritative material: ‘Had I struck a balance, I would have arrived at

¹' See above, (his (ext. at 38-9.

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 prin­ciples 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 prin­ciples. 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 therefore—without thereby defeating the argument from principles—be 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 al a minimum level of devel­opment, necessarily comprise norms structured like principles is not enough to justify the conclusion that a necessary con­nection exists between law and morality. Such a connection is not yet established, then, by the simple fact, say, that the basic 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 ques­tion 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 be­tween 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 prin­ciples 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 arc always found that belong to some morality or another. That is in fact so. In doubtful cases, (he 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 ques­tion 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, some—say. the principle of racial segregation— can be sharply distinguished from (he principles of a demo­cratic 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.^,Vs 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 arc, 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 am­biguous 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 loo little. For when one speaks of a necessary connection between law' and morality, one generally means a necessary connection between law and the—or a—correct morality.

See Hart. CL. al 199. 2nd edit., at 203-4: ’The law of every modern slate shows at a thousand points the influence of both the accepted social morality and wider moral ideals.’

Thai is especially true from (he 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 docs 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 prin­ciples of the German Basic Law or Constitution, namely, (he principles of human dignity, liberty, equality, the Rechtsstaat or rule of law, democracy, and the social stale. As optimizing commands, these principles require realization to the greatest possible extent. Together they require a realization that ap­proximates a legal ideal, namely, the ideal of the democratic, social RechtsstaatIf 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 and Rechtsidee (Frankfurt: Alfred Metz- ner, 1986), 30-1.

not, however, to a quintessential necessary connection that applies to all legal systems. He may refer in (his context to a legal system like that of National Socialism, which, with its principles of race and absolute leadership (the Führer- 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 mor­ality?

It docs 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 FwAm'-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 inoral 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

^No Sec c.g. Wilhelm Stuckart and Hans Globkc, Kommentare zur deutschen Rassengesetzgebung, vol. 1 (Munich and Berlin: C. H. Beck, 1936), al 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 Führer. Thus, the ethnic national state must of necessity be a Fiihrer-stelt'

are correct, but they do not spell the downfall of the connec­tion 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 satis­fies 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 connec­tion, it can only be a qualifying connection. Below the thresh­old 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 defect­ive (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 loo little. This objection cannot be dispelled by­providing 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 docs not mean that, below (he 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 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 the or a correct morality.¹¹¹ 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 propen­sities, it constitutes his particular character, his nature.^{[70] [71]}

This justification does not satisfy the minimum requirements of a rational justification. Consider only the claim (hat race determines the thoughts of the individual. Far from reflecting ‘the most rigorous scientific examination’, this claim is empir­ically false, which the most quotidian of experience demon­strates.

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 con­nection 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 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.

^I4, See Immanuel Kant, Critique of Pure Reason (1st pub. 1781. 2ndcdn. 1787), trans, and ed. Paul Guyer and Allen W. Wood (Cambridge: Cam­bridge 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.’