The Practical Significance of the Debate

The debate surrounding the concept of law is a debate about what law is. Every jurist has a more or less clear idea here that is expressed in his or her work in the law. The concept of law underlying the jurist’s endeavour is generally presupposed as self-evident, and even where it is less obvious, indulging in conceptual speculation on the law is regarded as a waste of time in the usual run of cases.

Unusual, non-standard cases are a different matter, forcing the underlying concept of law to the fore as a pressing problem. The point is illustrated with the help of two decisions of the Federal Constitutional Court of Germany.

A. Statutory Injustice

The first example, a decision of 1968 on citizenship, concerns the problem of statutory injustice. Section 2 of the Eleventh Ordinance (hereafter ‘Ordinance II’). 25 November 1941, issued pursuant to the Statute on Reich Citizenship of 15 September 1935/’ stripped emigrant Jews of German citizenship on grounds of race. The Federal Constitutional Court was to decide whether, according to this directive, a Jewish lawyer had forfeited German citizenship by emigrating to Amsterdam shortly before the outbreak of the Second World War. He had been deported from Amsterdam in 1942, and since it was not known what had become of him,

⁶ See respectively RGB! I (1941), at 722, and RGB! I (1935). at 1146. he was presumed dead, ruling out (he possibility of a restoration of German citizenship in accordance with art. 116, para. 2, of (he post-war Basic Law^{^[4]} or Constitution of the Federal Republic of Germany.

The Federal Constitutional Court reached the conclusion that the lawyer never lost his German citizenship because Ordinance 11, pursuant to the Statute on Reich Citizenship, was null and void, that is, invalid from the outset. The Court argues as follows:

Law and justice are not left to the discretion of the lawmaker.

The idea that a 'constitutional framer can arrange everything as he pleases would mean reverting to a mental posture of value- free statutory positivism that has long since been obsolete in legal science and practice. Precisely the period of the National Socialist regime in Germany has taught that lawlessness [Unrechl] can issue even from the lawmaker.'^[5] Therefore, the Federal Constitutional Court has affirmed the possibility of revoking the legal validity of National Socialist ‘legal’ provisions when they conflict with fundamental principles of justice so evidently that the judge who elected to apply them or to acknowledge their legal consequences would be administering lawlessness [Unrechf] rather (han law.^[6]

Ordinance 11 violated these fundamental principles. Its conflict with justice reached such an intolerable degree that the Ordinance must be held to be null and void, that is, invalid from the outset.^[7] Moreover, the Ordinance did not become efficacious in virtue of having been observed over a number of years or because some persons subject to ‘denaturalization’ had at the time come to terms or even concurred with National Socialist measures in particular cases. Duly enacted lawlessness that is obviously in violation of the constituting basic principles of the law does not become law in virtue of having been applied and obeyed.¹

This is a classic non-positivistic argument. An authoritatively issued norm, socially efficacious from the time of issuance, is denied validity or—the decision is ambiguous here—legal character because it violates suprastatulory law.

One can ask whether this argument was altogether necessary in the decision on citizenship. The Court could have sought to substantiate its finding solely with the argument that present recognition of the legal efficacy of this deprivation of citizenship violates both the general equality provision of art. 3. para. 1, of the Basic Law¹² as well as the prohibitions of discrimination found in art.

3. para. 3.^[8] ^{^[9] ^[10] This possible lack does diminish the weight but not the general significance accorded the non-positivistic argument in the citizenship case decided here. Not in every case involving evaluation of the legal consequences of a rogue regime {Unrechtsregime) are there comparable constitutional safeguards. Moreover, there are cases that turn on whether or not a norm was null and void, that is, invalid from the outset, a finding that cannot stem from a later constitution. One thinks, for example, of authoritatively issued and socially efficacious norms of a rogue regime that command or permit persecution measures contrary to human rights.^[11] The question of whether persons who acted in accordance with these norms can be punished after the downfall of the rogue regime depends largely—where no retroactive statute is enacted-on whether or not these norms were null and void, that is, invalid from the outset. B. Judicial Development of the Law
The second example, a decision of 1973 on judicial development of the law, concerns the permissibility of law development by judges that is contrary to the literal reading of a statute— the permissibility, in other words, of a contra legend decision. According to section 253 of the German Civil Code, monetary compensation for non-material harm is precluded except in the narrowly defined cases provided by statute. The Federal Supreme Court has not adhered to this regulation, having granted, since 1958, monetary compensation in a great many cases involving major violations of the right to personal privacy. The case at issue concerned a weekly magazine that had published a completely fabricated interview about private mailers that Princess Soraya, the ex-wife of the last Shah of Iran, sought to have protected. The Federal Supreme Court awarded Princess Soraya damages in the amount of 15.000 German marks, at odds with the literal reading of section 253 of the Civil Code, permitting solatium, or damages for nonmaterial harm, ‘only in those cases specified by statute’. The case of Princess Soraya clearly was not one of these cases.
The Federal Constitutional Court upheld the decision of the Federal Supreme Court. A pivotal part of its argument runs as follows: The traditional view that the judge is bound by the statute—a significant component of the principle of the separation of powers and thereby of the Rechtsslaat or rule of law—has been modified at least in its formulation in the Basic Law to read that the judiciary is bound by ‘statute and law’ [Gesetz unci Rechf\.^Xb The received opinion is that with this formulation, a narrow statutory positivism is being rejected. The wording supports the sense that statute and law do in fact generally coincide, but not necessarily and always. The law is not identical with the totality of written statutes.
¹⁵ Literally contrary to law'.
¹⁶ GG arl. 20. para. 3 (citation in the Court’s opinion): ‘Legislation is subject to the constitutional order; the executive and the judiciary arc bound by statute and law’ (trans, altered).
As against the express directives of state authorities, there can be in some circumstances a greater law that has its source in the constitutional legal system as a totality of meaning and that may function as a corrective vis-à-vis the written statute: to discover this law and to put it into practice in decisions is the task of the judiciary.¹⁷
The decision of the Federal Constitutional Court is controversial. The charge against the Court is that civil courts were not themselves permitted to decide on a restriction of the text of section 253 of the Civil Code: rather, in accordance with concrete judicial review as provided by art. 100, para. 1. of the Basic Law,^ls they would have had to request a decision of the Federal Constitutional Court as to whether section 253 conforms to the constitution.¹⁹ The merits of this objection turn,
¹⁷ BVerfGE 34 (1973), 269. 286-7. While the Federal Constitutional Court, in later decisions, has on several occasions exercised greater caution in commenting on judicial law development contra legem or contrary to the literal reading of the statute, it has maintained the fundamental permissibility of such development; see BVerfGE 35 (1974), 263, at 278-80; ibid.
37 (1975). 67. at 81; ibid. 38 (1975), 386. at 396-7; ibid. 49 (1979), 304. at 318-22; ibid. 65 (1984), 182. at 190-5; ibid. 71 (1986), 354, at 362-3; ibid. 82 (1991). 6. at 11-15. ^Ix GG art. 100. para. I: ’If a court considers that a statute on whose validity the court’s decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained from the Land court with jurisdiction over constitutional disputes when the constitution of a Land is held to be violated, or from the Federal Constitutional Court when this Basic Law is held to be violated. This shall also apply when the Basic Law is held to be violated by Land law or where a Land statute is held to be incompatible with a federal statute.’
¹⁹ Sec Hans-Joachim Koch and Helmut Rüßmann, Juristische Begründungslehre (Munich: C. II. Beck, 1982), al 255; see also Friedrich Müller. ‘Richterrecht' (Berlin: Dunckcr & Humblot, 1986). at 69-70. § 253 BGB is pre-constitutional law. According to the opinions of the Federal Constitutional Court, § 253 BGB. as pre-constitutional law, can be subjected to concrete judicial review as provided by art. 100, para. 1, of the Basic Law only if the federal legislator has ‘incorporated it into his legislative policy’, BVerfGE 64 (1984), 217, at 220. Where that is not the case, the civil courts would have been able to hold § 253 BGB unconstitutional in part for violating GG art. 2, para. 1, in connection with GG art. 1, para. 1. The obstacle presented by the literal reading of § 253 BGB would then have been eliminated for these courts.
first, on whether or not (he non-positivistic interpretation of the clause ‘statute and law’ in art. 20, para. 3, of the Basic Law is correct and, second, on the question of how, if that interpretation is correct, the relation between art. 20. para. 3, and art. 100, para. 1, of the Basic Law is to be defined. Only the first of these is of interest here. The significance of the statement.
‘The law is not identical with the totality of written statutes’, is preserved even if one holds that, because of the procedure provided in the German legal system by art. 100, para. 1, of the Basic Law. contra legem decisions are generally impermissible. The problem of the contra legem decision arises in every legal system, although not every legal system has a procedure for concrete judicial review like that provided by art. 100, para. I. of the Basic Law. What is more important still, far beyond the realm of contra legem decisions, is that this statement has significance in every doubtful case. A doubtful case is, say, when the statute to be applied is indeterminate and the rules of legal method do not lead definitively to precisely one result. Whoever identifies the law with the written statute, that is, whoever endorses the thesis of statutory positivism,²" must say that in doubtful cases the decision is determined by extra-legal factors. The position of the non-positivist is altogether different. For the non-positiv- ist, who does not identify the law with the statute, the decision can be determined by the law even if it is not definitively prescribed by the statute. To be sure, differing views of what law is need not lead to different results—but they can. ^[12]}

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Source: Alexy Robert. The Argument from Injustice: A Reply to Legal Positivism. Oxford University Press,2010. — 159 p.. 2010

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