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Preface
This volume comprises twenty-one chapters written over a period of thirty-two years. Of these, seventeen have been published previously in English, four of them having been translated from the original German into English by Bartocz Brożek and Stanley L. Paulson (2007), Ruth Adler and Neil MacCormick (1992), Susanne Gaschke (1993), and Kirsten Bock (1998) (see Chapters 11, 17, 19, and 21). The other chapters have all been written in English, a line that is only a half-truth without an acknowledgement of the assistance given to me by Stanley L. Paulson. Stanley has been in residence in Kiel for the past twenty years and has always assisted me on my English-language articles. Indeed, every article from the year 2000 on begins with an asterisk-footnote thanking Stanley for his assistance and advice on matters of English style. And I have enjoyed the same support vis-à-vis the four chapters that are published here for the first time in English. What is more, Stanley has recently gone to the trouble to examine and to refine the English in three fairly early articles of mine. In short, it would simply not have been possible, without Stanley, to publish this volume. My gratitude to him is boundless.
I want also to thank Martin Borowski at the University of Heidelberg and his secretary, Ingrid Baumbusch, for technical assistance. Ms Baumbusch converted the older articles from PDF files into Word files, making my work on the volume a good deal easier.
Robert Alexy Kiel September 2020
Acknowledgements
The following chapters were originally published in English as indicated:
‘The Nature of Legal Philosophy’, Ratio Juris 17 (2004), 156–67
‘On the Concept and the Nature of Law’, Ratio Juris 21 (2008), 281–99
‘The Dual Nature of Law’, Ratio Juris 23 (2010), 167–82
‘Law, Morality, and the Existence of Human Rights’, Ratio Juris 25 (2012), 2–14
‘An Answer to Joseph Raz’, in Law, Rights and Discourse. The Legal Philosophy of Robert Alexy, ed. George Pavlakos (Oxford: Hart, 2007), 37–55
‘The Ideal Dimension of Law’, in The Cambridge Companion to Natural Law Jurisprudence, eds George Duke and Robert P. George (Cambridge: Cambridge University Press, 2017), 314–41
‘Gustav Radbruch’s Concept of Law’(not previously published in English)
‘The Construction of Constitutional Rights’, Law & Ethics of Human Rights 4 (2010), 20–32
‘Balancing, Constitutional Review, and Representation’, International Journal of Constitutional Law 3 (2005), 572–81
‘The Existence of Human Rights’, Archives for Philosophy of Law and Social Philosophy, supplement 136 (2013), 9–18
‘The Weight Formula’, trans. Bartosz Brożek and Stanley L. Paulson, in Studies in the Philosophy of Law, vol. 3, eds Jerzy Stelmach, Bartosz Brożek, and Wojciech Załuski (Kraków: Jagiellonian University Press, 2007), 9–27
‘Formal Principles: Some Replies to Critics’, International Journal of Constitutional Law 12 (2014), 511–24
‘Ideal “Ought” and Optimization’(not previously published in English)
‘Human Dignity and Proportionality’(not previously published in English)
‘Proportionality and Rationality’, in Proportionality. New Frontiers, New Challenges, eds Vicki C. Jackson and Mark Tushnet (Cambridge: Cambridge University Press, 2017), 13–29
‘The Absolute and the Relative Dimension of Constitutional Rights’, Oxford Journal of Legal Studies 37 (2017), 31–47
‘A Discourse-Theoretical Conception of Practical Reason’, trans. Ruth Adler and Neil MacCormick, Ratio Juris 5 (1992), 231–51
‘Problems of Discourse Theory’, Crítica 20 (1988), 43–65
‘Legal Argumentation as Rational Discourse’, trans. Susanne Gaschke, Rivista internazionale di filosofia del diritto 70 (1993), 165–78
Jürgen Habermas’s Theory of the Indeterminacy of Law and the Rationality of Adjudication (not previously published in English)
‘Law and Correctness’, trans. Kirsten Bock, Current Legal Problems 51 (1998), 205–21
Introduction
PART I THE NATURE OF LAW
The Nature of Legal Philosophy
The Nature of Philosophy
Pre-Understanding and Arguments
Three Problems
Four Theses
Entities and Concepts
Necessary Properties
Law and Morality
On the Concept and the Nature of Law
The Practical and Theoretical Significance of the Debate
Statutory Injustice and the Radbruch Formula
Law’s Open Texture and the Self-Understanding of Jurists
The Concept of Law as a Concept of a Non-Natural Kind
Positivism and Non-Positivism
Separation Thesis and Connection Thesis
Exclusive and Inclusive Positivism
Exclusive, Inclusive, and Super-Inclusive Non-Positivism
Concept and Nature
Nature
Concept
The Dual Nature of Law
Coercion
Correctness
What the Law Is and What It Ought to Be
The Dual Nature of Law
The Ideal
The Claim to Correctness Discourse Theory
The Real
The Reconciliation of the Ideal and the Real Outermost Border
Democratic Constitutionalism
Law, Morality, and the Existence of Human Rights
Positivism, Non-Positivism, and the Existence Problem
Three Elements and Two Dimensions
Two Forms of Positivism
Three Forms of Non-Positivism
Inclusive Non-Positivism and the Existence Problem
The Existence of Human Rights
Human Rights as Moral Elements
The Concept of Human Rights
The Justifiability of Human Rights
An Answer to Joseph Raz
Separation Thesis
Kelsen’s Statement
The Idea of a Definition of Law
Necessary Connections
Participants and Observers
The Argument from Correctness
The Argument from Injustice
The Argument from Principles
The Ideal Dimension of Law
The Claim to Correctness
Conceptual Analysis and Conceptual Necessities
The Argument from Fruitlessness
The Argument from Deficiency
The Necessity of the Real Dimension of Law
A Conceptual Framework
First-Order and Second-Order Correctness
Perspectives and Dimensions
Classifying and Qualifying Connections
The Relation between the Real and the Ideal Dimension
The Radbruch Formula
The Special Case Thesis
Human Rights
Democracy
Principles Theory
Gustav Radbruch’s Concept of Law
Gustav Radbruch’s System
The Law Triad
The Idea Triad
The Triad of Purpose
The Radbruch Formula
PART II CONSTITUTIONAL RIGHTS, HUMAN RIGHTS, AND PROPORTIONALITY
The Construction of Constitutional Rights
The Rule Construction Rules and Principles
The Postulate to Avoid Balancing
Problems of the Rule Construction
Principles Construction and Proportionality Analysis
Objections to the Principles Construction
The Rationality of Balancing
The Central Role of the Rationality Problem
The Irrationality Objection
Pareto-Optimality
The Law of Balancing
The Weight Formula
Balancing, Constitutional Review, and Representation
Balancing
Two Objections
Constitutional Review
Representation
Argumentative Representation
Conditions of True Argumentative Representation
The Existence of Human Rights
The Theoretical and Practical Significance of the Existence Question
The Concept of Human Rights
The Justification of Human Rights
The Principles Structure of Human Rights
Scepticism and Non-Scepticism
Justification and Thesis
Eight Justifications
The Weight Formula
The Norm-Theoretic Basis: Rules and Principles
The Principle of Proportionality in the Narrower Sense
The Triadic Scale
The Formula
The Extended Formula
Formal Principles: Some Replies to Critics
The Problem
Some Basic Elements of Principles Theory
Rules and Principles
Proportionality
Weight Formula
The Concept of Formal Principle
Principles and Balancing in General
The Wrong Way
Two Kinds of Discretion
Second-Order Epistemic Optimization
Formal Principles and Discretion
Ideal ‘Ought’and Optimization
The Index Model of the Ideal ‘Ought’
The Law of Competing Principles
The Weight Formula
Law of Competing Principles and Law of Balancing
A Fundamental Equivalence
Poscher’s Argument from Identity
Sieckmann’s Reiterated Validity Obligations
Human Dignity and Proportionality
Absolute and Relative Conceptions of Human Dignity
Practical Significance
Some Basic Elements of Principles Theory
Rules and Principles
Proportionality
Weight Formula
The Concept of Human Dignity
Descriptive and Normative Elements
The ‘Double-Triadic’Concept of Person
Human Dignity as a Bridge Concept
Human Dignity as Principle and as Rule
Human Dignity as Principle
Human Dignity as a Rule
Devaluation of Human Dignity?
Clear Cases
Object Formula
Abstract Weight and Epistemic Reliability
Rationality
Proportionality and Rationality
Empirical and Analytical Approaches
Proportionality and Principles Theory
Rules and Principles
Proportionality
Balancing and Argumentation
The Formal and the Substantive Dimension of Rationality
Numbers, Classification Propositions, and their Justification
Disagreement, Discourse, and Rationality
Balancing, Universalizability, and Legal Certainty
The ad hoc Problem
The Law of Competing Principles
Rules and Conditions
The Absolute and the Relative Dimension of Constitutional Rights
The Absolute and the Relative
Constitutional Rights
Constitutional and Human Rights
The Degree of the Absolute Dimension of Constitutional Rights
Proportionality
The Absoluteness of the Principle of Proportionality
The Relativity and Absoluteness of the Application of the Principle of Proportionality
PART III. ARGUMENTATION, CORRECTNESS, AND LAW
A Discourse-Theoretical Conception of Practical Reason
Introduction
In Defence of the Concept of Practical Reason
A Kantian Conception of Practical Rationality: Discourse Theory
The Basic Idea of Discourse Theory
The Status of Discourse Theory as a Theory of Practical Correctness and Rationality
Towards the Justification of the Rules of Discourse
The Application of Discourse Theory
Problems of Discourse Theory
Discourse Theory as a Procedural Theory
Rules of Discourse
The Ideal Discourse
The Problem of Construction
The Problem of Consensus
The Problem of the Criterion
The Problem of Correctness
The Real Discourse
The Discursive Modalities
The Relative Concept of Correctness
Legal Argumentation as Rational Discourse Models
The Model of Deduction
The Model of Decision
The Hermeneutic Model
The Model of Coherence
A Discourse Theory of the Law
General Practical Discourse
Institutionalization
Legal Argumentation
The Different Kinds of Legal Arguments
The Strength of the Arguments
Jürgen Habermas’s Theory of the Indeterminacy of Law and the Rationality of Adjudication
The Problem of Rationality in Adjudication
Three Insufficient Answers
Ronald Dworkins’s Theory of Rights
Law as an Ideally Coherent System of Norms
Theory of Legal Argumentation
The Special Case Thesis
Moral, General Practical, and Legal Discourse
The Rules and Forms of Legal Discourse
Unjust Law
Specific Legal Nature?
Law and Correctness
The Concept of the Claim to Correctness
The Subjects
The Addressees
Raising a Claim
The Necessity of Connecting Law and Correctness
An Absurd Constitutional Article
An Absurd Judgment
The Alternative
Legal and Moral Correctness
A.
B.
C.
D.
Law’s Open Texture
The Autonomy Objection
The Objection of Impossibility
Reality and Ideal
Index of Names
Index of Subjects
Introduction
The twenty-one articles brought together here represent both a further elaboration and systematic connection of the main ideas contained, often in embryonic form, in my three books: A Theory of Legal Argumentation, 1 A Theory of Constitutional Rights, 2 and The Argument from Injustice. 3 Owing to a goodly number of new elements and new connections, the present book is not merely a collection of essays in legal philosophy. Rather, it is a new and comprehensive theory based on the arguments found in the three earlier books.
The collection is divided into three parts. The first concerns the nature of law. This is the theme of The Argument from Injustice. Still, there is little in the book on what it means to reflect on the nature of law. Chapter 1, on ‘The Nature of Legal Philosophy’, addresses this issue. Legal philosophy, in a first step, is defined as reasoning about the nature of law. In a second step, reasoning about the nature of law is understood as reasoning about the necessary properties of law. Finally, in a third step, coercion and the claim to correctness are identified as necessary as well as sufficient, that is, essential properties of law. If this is true, law has a dual nature. It comprises a real as well as an ideal dimension. The existence of a real dimension, defined by authoritative issuance and social efficacy, guaranteed by coercion, is scarcely contested. The case is different, however, with respect to the ideal dimension, defined by the claim to correctness. This claim includes a claim to justice. In The Argument from Injustice, law’s ideal dimension is sometimes employed, but it plays no systematically important role there. This concept its place in the title of the book gives expression to its importance in my recent work is elaborated in Chapter 2, ‘On the Concept and the Nature of Law’, and Chapter 3, ‘The Dual Nature of Law’. In both chapters, I attempt to make more explicit the dual nature thesis, already implicit in The Argument from Injustice. In this explication, the distinction between exclusive, inclusive, and super-inclusive non-positivism inspired by the familiar distinction between exclusive and inclusive positivism plays a pivotal role. With this distinction, a new field is opened up for the last four articles of Part I of the volume. In ‘Law, Morality, and the Existence of Human Rights’, Chapter 4, I discuss problems that arise from the fact that non-positivism is possible only if necessary moral elements exist. My thesis is twofold. First, necessary moral elements exist because human rights exist. Second, human rights qua moral rights exist because they are justifiable. In this way, Part I of the book, concerning the nature of law, is intrinsically connected with Part II, which bears the title ‘Constitutional Rights, Human Rights, and Proportionality’. To understand human rights as moral rights is to identify a decisive element of law’s ideal dimension. This identification, however, is only a first step in the justification of nonpositivism. The second and far more difficult step is the justification of human rights. An attempt to arrive at such a justification is to be found in Chapter 10, ‘The Existence of Human Rights’ in Part II of the book. First, however, I should like to invite attention to three additional chapters in the first part. In these chapters I attempt to make clearer, by means of a discussion of theses defended by Joseph Raz (Chapter 5), John Finnis (Chapter 6), and
Gustav Radbruch (Chapter 7), what I have said in the preceding four chapters.
In Part II of the book, as already mentioned, I take up constitutional rights, human rights, and proportionality. In Chapter 8, ‘The Construction of Constitutional Rights’, I defend the construction of constitutional rights as principles against objections raised by proponents of the rule construction. The principles construction implies the necessity of proportionality analysis and, along with this, the necessity of balancing. A standard objection against the principles construction, raised for instance by Jürgen Habermas, is that balancing is irrational. My reply is that balancing is an argument form of rational legal discourse. If rational legal argumentation is possible, then balancing is possible as a rational means of resolving conflicts between constitutional rights and between constitutional rights and collective goods. Thus, the theory of constitutional rights is inextricably connected to the theory of legal argumentation, the theme of my first book and of Part III of the present book. The treatise A Theory of Constitutional Rights, has received further elaboration in several of my more recent articles. Two of these elaborations are of special significance: one is philosophical in nature, the other mathematical.
The philosophical elaboration concerns the nature of constitutional rights. Constitutional rights count as positive law, that is to say, positive law at the level of the constitution. This was the starting point of A Theory of Constitutional Rights. This fact does not suffice, however, to explain the nature of constitutional rights. Positivity is but one side of constitutional rights, namely their real side. Over and above this real side they also manifest an ideal side. The reason is significant. Constitutional rights are rights that have been recorded in a constitution with the intention of transforming human rights qua moral rights into positive law. This intention is often a subjective or actual intention of the framers of the constitution. Still, owing to the claim to correctness, necessarily raised with law and, therefore, with constitutions, this intention is, furthermore, also objective and therefore necessary. Thus, constitutional rights qua positive law necessarily have an ideal dimension. The transformation of human rights into constitutional rights is a process of institutionalization. Without constitutional review this process cannot be carried out. Carrying it out, however, raises a problem: the perennial problem of the relation between constitutional rights and democracy. In Chapter 9, ‘Balancing, Constitutional Review, and Representation’, I try to resolve this problem by means of a classification of constitutional review as, so to speak, an argumentative representation of the people. With this, the theory of argumentation once again makes an entry. In Chapter 10, ‘The Existence of Human Rights’, I attempt to demonstrate the existence of human rights. The basis of this demonstration is the practice of discourse, essentially defined as a practice of asserting, asking, and arguing.
The mathematical elaboration of the theory of constitutional rights concerns the transformation of the most important element of proportionality analysis, the Law of Balancing as it is found in the A Theory of Constitutional Rights, into a mathematical formula, the Weight Formula. This formula is given a systematic presentation in Chapter 11. Chapter 12, ‘Formal Principles: Some Replies to Critics’, and Chapter 13, ‘Ideal “Ought” and Optimization’, can be seen as further steps on the path opened up by the Weight Formula. The last three chapters of Part II of the volume, Chapter 14, ‘Human Dignity and Proportionality’, Chapter 15, ‘Proportionality and Rationality’, and Chapter 16, ‘The
Absolute and the Relative Dimension of Constitutional Rights’, show that the connection of the mathematical structure of balancing with substantive philosophical arguments leads to insights that are otherwise scarcely possible to imagine.
Part III concerns the relation between argumentation, correctness, and law. The articles it comprises address three themes: the possibility of discursive rationality, the special case thesis, and the idea of correctness. The question of whether discursive rationality is possible is the theme of Chapter 17, ‘A Discourse-Theoretical Conception of Practical Reason’, and Chapter 18, ‘Problems of Discourse Theory’. A key to the positive answer that I offer here is the connection of the idea of an ideal discourse with the concept of real discourse. This, too, counts as a tie of the real with the ideal. If discursive rationality is possible, practical correctness or truth is not a mere illusion. The next step connects general practical rationality with legal rationality. This is the object of the special case thesis. The special case thesis, as developed in A Theory of Legal Argumentation, claims that legal argumentation or discourse is a special case of general practical discourse. Legal discourse is a special case of general practical discourse because legal argumentation is not concerned with what is absolutely correct but with what is correct within the framework of the prevailing legal system. This is to say that legal argumentation, too, has a real dimension and an ideal dimension. I discuss various aspects of this in the Chapter 19, ‘Legal Argumentation as Rational Discourse’, and Chapter 20, ‘Jürgen Habermas’s Theory of the Indeterminacy of Law and the Rationality of Adjudication’. The latter is a reply to Habermas’s critique of my special case thesis. I analyse the implications of the aforementioned arguments for the law in Chapter 21, ‘Law and Correctness’. Here the concepts of law and correctness are connected.
1 Robert Alexy, A Theory of Legal Argumentation (1978), trans. Ruth Adler and Neil MacCormick (Oxford: Clarendon Press, 1989)
2 Robert Alexy, A Theory of Constitutional Rights (1985), trans Julian Rivers (Oxford: Oxford University Press, 2002)
3 Robert Alexy, The Argument from Injustice A Reply to Legal Positivism (1992), trans Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon Press, 2002).
PART I
THE NATURE OF LAW
The main theme of Part I of the book is the dual nature of law. The dual-nature thesis says that law necessarily comprises both a real dimension, defined by authoritative issuance and social efficacy, and an ideal dimension, defined by the claim to correctness which includes a claim to justice. This connection between the real and the ideal implies non-positivism.
The Nature of Legal Philosophy
The question of the nature of legal philosophy connects two problems. The first concerns the general nature of philosophy, the second, the special character of that part of philosophy we call ‘legal philosophy’.
I. The Nature of Philosophy
There are so many schools, methods, styles, subjects, and ideals of philosophy that it is difficult to explain its nature. A general explanation of the nature of philosophy would presuppose that all or at least most of the very different conceptions of philosophy which have appeared in the history of the field have something in common that can be conceived of as the focal meaning or the concept of philosophy.
Perhaps the most general feature of the concept of philosophy seems to be reflexivity. Philosophy is reflective because it is reasoning about reasoning. Philosophy is reasoning about reasoning because its subject, the human practice of conceiving on the one hand of the world, oneself, and other minds, and on the other of human action, is essentially determined by reasons.
Having a conception of the world, oneself, and other minds is to have a conception about what there is. Action, on the other hand, presupposes a conception about what ought to be done or is good. Reasoning about the general question of what there is defines metaphysics qua ontology; reasoning about the question of what ought to be done or is good defines ethics. Human practice is not only based for the most part implicitly on answers to both questions but it also includes again, for the most part implicitly numerous answers to a third question, the question of how to justify our beliefs on what there is and on what ought to be done or is good. This question defines epistemology. Philosophy attempts to make explicit the ontological, ethical, and epistemological assumptions implicit in human practice. Explicit reflexivity is necessary but not sufficient to explain the nature of philosophy. A teacher who abhors students’ chewing gum during his lecture may become reflective by asking himself what the reasons for his attitude are, but this is not enough for him to become a philosopher. Reflexivity must be associated with two other properties if it is to be seen as capturing something genuinely philosophical in nature. The reflection must be reflection about general or fundamental questions, and this reflection must be of a systematic kind. The shortest, most abstract, but nevertheless truly comprehensive definition of philosophy might therefore run as follows: philosophy is general and systematic reflection about what there is, what ought to be done or is good, and how knowledge about both is possible.
This explanation by no means claims to exhaust its subject. Its brevity excludes this, and it may be that even a far more elaborated explanation will never be able to exhaust the nature of
philosophy, for behind or between all the concepts one can use to explain its nature there may lie something which cannot be grasped conceptually, despite the fact that philosophy is a conceptual activity. Our explanation, therefore, can only attempt to provide a starting point for an answer to the question about the nature of legal philosophy. One may assume that this question has as with legal philosophy itself a certain autonomy, so that we need, indeed, an understanding of the general nature of philosophy only as a first step and not as a final and complete basis on which our understanding of the nature of legal philosophy rests, like a house on its foundations.
My definition of philosophy as general and systematic reflection about what there is, what ought to be done or is good, and how knowledge about both is possible, leads, notwithstanding its extremely abstract and highly tentative character, to three corollaries important for our purposes. First, reflection necessarily has a critical dimension. To reflect on what there is, what ought to be done and is good, and what we can know, is to ask for and to argue about what objectively exists, what is true or right, and what is justified. If one defines normativity as the ability to distinguish what is correct from what is incorrect, these questions are normative questions. Philosophy as a necessarily reflective enterprise therefore necessarily has a normative dimension. The general and systematic character of philosophical reflection leads, second, to an analytic, and third, to a synthetic or holistic dimension of philosophy. The analytic dimension is defined by the attempt to identify and to make explicit the fundamental structures of the natural and social world in which we live and the fundamental concepts and principles by means of which we can grasp both worlds. Without this analytic bite, philosophy could be neither general nor systematic in a substantial sense.
In legal philosophy, the analytic dimension concerns concepts like those of norm, ‘ought’, person, action, sanction, and institution. The synthetic dimension is defined by the attempt to unite all of this into a coherent whole. A deeply founded and coherent picture of what there is, what ought to be done and is good, and what we can know, is the regulative idea of philosophy or, in simpler terms, its ultimate aim. This implies that philosophy is necessarily holistic. Our definition of philosophy should therefore be complemented by the following, which is implied by the definition: philosophy is normative (or critical), analytic, and holistic (or synthetic). The three concepts of the definition (reflective, general, and systematic), and the three concepts of the corollary (normative, analytic, and holistic), are descriptions of the same things from different perspectives.
II. Pre-Understanding and Arguments
Legal philosophy, as philosophy, is reflection of a general and systematic kind, and it has, exactly like philosophy in general, a normative, an analytic, and a holistic dimension. Its differentia specifica consists in its subject: the law. Legal philosophy is not generally directed to the questions of what there is, what ought to be done or is good, and what can be known, but to these questions with respect to the law. Raising these questions with respect to the law is to ask for the nature of law. This seems to lead naturally to the definition of legal philosophy as reasoning about the nature of law.
This, however, seems to cause a problem. It is a circularity problem, which rests on the fact that, on the one hand, legal philosophy cannot be defined without using the concept of law, whereas, on the other, it has the task qua reasoning about the nature of law of explaining what law is. How can legal philosophy begin to explore what law is when it is impossible to say what legal philosophy is without knowing what law is? This circularity, however, is not vicious but virtuous in character. It is nothing other than a version of the hermeneutic circle, and it is to be resolved like all variants of this circle: by starting with the pre-understanding suggested by the established practice and elaborating it through critical and systematic reflection.
The pre-understanding of law is not only the pre-understanding of an entity which is highly complex in itself. To this first complexity is added as a second complexity that the pre-understanding as such is capable of extreme variations. The scale extends from Holmes’s ‘bad man’,1 which defines a rather detached external point of view, to Dworkin’s judge Hercules,2 which represents a rather idealistic internal one. Legal philosophy as an enterprise, which, at the same time, is systematic as well as critical, cannot start from just one preunderstanding. It has to consider all of them and, what is more, has to analyse the relation of all of them to all features of law.
The requirement to consider all pre-understandings which are to be found in law and legal philosophy on the one side, and all features of law on the other side, suggests the idea of something like a catalogue of all approaches and all features. But how does one compose such a list? Simply to pick up and collect each approach and each feature which appears in history or today before our eyes would, as Kant says, ‘not be a rational system but merely an aggregate haphazardly collected’.3 One needs no argument in order to say that this would be incompatible with the systematic and critical character of philosophy. Philosophical reflection demands a system. It is, however, much easier to say that a mere aggregate, or, as Kant sometimes puts it, a ‘rhapsody’4 is not enough than to say how an adequate conceptual system or framework can be constructed. The best answer seems to be not by an abstract theory of legal philosophy but by systematic analysis of the arguments put forward in the discussion about the nature of law. No other procedure seems to fit better the general character of legal philosophy qua reasoning about the nature of law.
III. Three Problems
The arguments about the nature of law revolve around three problems. The first problem addresses the questions: in what kind of entities does the law consist, and how are these entities connected such that they form the overarching entity we call ‘law’? This problem concerns the concept of a norm and a normative system. The second and the third problem are addressed to the validity of law. The second concerns its real or factual dimension. This is the area of legal positivism. Two centres are to be distinguished here. The first is determined by the concept of authoritative issuance, the second by that of social efficacy. The third problem of the nature of legal philosophy concerns the correctness or legitimacy of law. Here, the main question is the relationship between law and morality. To take up this question
is to take up the ideal or critical dimension of law. It is this triad of problems that, taken together, defines the nucleus of the problem of the nature of law.
This tripartition claims to be complete, neutral, and systematic. It is complete when it can absorb all arguments that can be put forward for and against a thesis about the nature of law. The only proof possible for this consists in corroborating our triadic model with respect to as many critical instances as possible. The model is neutral when it adds no preferences to the weights of the arguments it absorbs. The proof is the same as in the case of completeness. It is, finally, systematic when it leads to a coherent picture of the nature of law. In this case, the proof cannot consist of anything else than an elaboration of a coherent account.
The last point can be generalized. Only by elaborating the best theory connecting answers to all three questions about the nature of law can the nature of legal philosophy become as clear as possible. It is, however, not only not the case that one can develop such a perfect theory here but also the case that one may well be sceptical about whether such an ideal of perfection can ever be achieved. Fortunately, it is not necessary to know all in order to know enough. In order to obtain as much as is necessary for our purposes it suffices to use the triadic model as a framework for the discussion of paradigmatic problems.
IV. Four Theses
The consideration of paradigmatic problems vis-à-vis our triadic model shall confirm four theses. This confirmation, again, implies a corroboration of the model. The first thesis says that legal philosophy is not confined to certain special problems connected with law; all problems of philosophy may arise in legal philosophy. In this respect legal philosophy substantially includes the problems of philosophy in general. One can call this the ‘general nature thesis’. The second thesis maintains that there are specific problems of legal philosophy. They are due to the specific character of law, which results from the fact that law is necessarily authoritative or institutional as well as critical or ideal. This is the ‘specific character thesis’. The third thesis says that there is a special relation between legal philosophy and other provinces of practical philosophy, especially those of moral and political philosophy. One can call this the ‘special relation thesis’. A fourth thesis overarches the first three theses. That is, it does not simply join them as a fourth thesis but expresses an idea behind them. It is the idea that legal philosophy can be successful only if it comes up to the level not only of one or two of these theses but to that of all three. This is the ‘comprehensive ideal’of legal philosophy.
While the triadic model of the problems of legal philosophy claims to be neutral, the four theses do not. They involve decisions with respect to the solution of these problems. This becomes clear when one contrasts the comprehensive ideal with something like a ‘restrictive maxim’. A radical version of such a restrictive maxim maintains, first, that legal philosophy should never get involved in any genuinely philosophical problem; second, that legal philosophy should concentrate its efforts on the institutional or authoritative character of law; and, third, that legal philosophy should delegate critical normative questions to moral and political philosophy, which for their part should be kept, so to speak, beyond reach. The
restrictive maxim mirrors a picture of legal philosophy that is fundamentally different from the picture of the field corresponding to the comprehensive ideal. Legal philosophy turns into a juridical theory of law, which is separated from general philosophy as well as from moral and political philosophy.
The choice between the comprehensive ideal and the restrictive maxim is a fundamental choice. The character of legal philosophy is determined by it much more radically than by the choice between legal positivism and non-positivism. The choice between positivism and nonpositivism is a choice inside the realm of legal philosophy. The choice between the comprehensive ideal and the restrictive maxim amounts to a choice between philosophy and non-philosophy. This is the background against which our paradigmatic problems have to be considered.
V. Entities and Concepts
The answers given by Kelsen and Olivecrona in the 1930s to the classical question of what entities the law consists of present our first example. Kelsen defines ‘law as norm’,5 and norms as ‘meaning’,6 and the ‘unique sense’ of this meaning as ‘ought’, and ‘ought’ as a ‘category’.7 This is the language in which abstract entities are described. Kelsen insists that norms and thus, law can be reduced neither to physical events nor to psychical processes. They belong not to natural reality but to an ‘ideal reality’.8 Such an ideal reality, which exists in addition to the physical and the psychical world, would be a ‘third realm’ in the sense of Frege.9 The opposite position is to be found in Karl Olivecrona, who, with an eye to Kelsen, maintains that ‘[t]he rules of law are a natural cause among others of the actions of the judges in cases of litigation as well as of the behaviour in general of people in relation to each other’.10 This question as an ontological question is not only a question of general philosophical interest, it is also a question which must be answered in order to determine the nature of law, and it is, therefore, a genuine question of legal philosophy.
An adherent of the restrictive maxim might object that the question of the ontological status of norms is, for lawyers, as unimportant as the question of the real or only imagined existence of a mountain in Africa, identified and surveyed by two geographers, is for these two geographers.11 The reply to this objection is that the realism problem has a different significance for geographers than the meaning problem has for lawyers. The answer to the question as to whether norms are meaning contents or natural causes determines the answer to a further question, namely, whether norms can be conceived as elements of an inferential system and, thereby, as starting points of arguments, or whether they are only elements in a causal network. In the first case, legal reasoning oriented towards correctness is possible, in the second, it would be an illusion. This shows how the self-understanding of legal reasoning and, by means of it, the self-understanding of law depends on ontological presuppositions. There are, naturally, several ways for reconstructing these presuppositions. But the mere fact that there exists the necessity of reconstructing them is enough to confirm the thesis that legal philosophy cannot do without arguments that are genuinely philosophical in character.
In any case, the concept of a norm or the ‘ought’ is a candidate for the most abstract concept of legal philosophy. If one goes one step down from this level of abstraction, the inferential impact of the fundamental concepts of law becomes far more obvious. The distinction between rules and principles is a highly abstract question of the general theory of norms. It has, at the same time, far-reaching consequences for the theory of legal reasoning. If law contains both, then legal reasoning inevitably combines subsumption with balancing.12 Legal reasoning is thereby essentially determined by structures that are structures of general practical reasoning. This is an important reason for not conceiving of legal reasoning as a province in its own right, separate and distinct from other provinces of reason.
All this shows that fundamental philosophical questions must be answered in order to grasp the nature of law. Reflection about the nature of law cannot succeed when separated from general philosophy.
VI. Necessary Properties
Asking for the nature of something is more than asking for interesting and important properties. Questions about the nature of law are questions about its necessary properties. The concept of necessity leads one to the heart of philosophy. The same is true with its relatives, the concepts of analyticity and the a priori. Without these concepts it is impossible to understand the meaning of questions of the type ‘What is the nature of Φ?’ Without understanding the structure of questions of this kind, one cannot understand the main question of legal philosophy: ‘What is the nature of law?’ And to fail to understand this question is to fail to know what legal philosophy is.
The possibility of defining the concept of nature as it appears in sentences of the form ‘What is the nature of Φ?’, namely, by means of the concept of necessity, allows for the substitution of the question ‘What is the nature of law?’ by the question ‘What are the necessary properties of law?’ This question leads, by means of the concept of necessity (and its relatives, analyticity, and the a priori), to the specific character of law. The question of what is necessary, when connected with the question of what is specific, turns into the question of what is essential. This is the area of the specific character thesis.
Two properties are essential for law: coercion or force on the one hand, and correctness or rightness on the other. The first concerns a central element of the social efficacy of law, the second expresses its ideal or critical dimension. It is the central question of legal philosophy to ask how these two concepts are related to the concept of law and, through it, to each other. All or at least nearly all questions of legal philosophy depend on the answer to this question.
It is highly contested whether coercion and correctness are necessarily connected with law. This dispute is attended by a meta-dispute about the question of what kind of argument can be given for and against the necessity of such connections. It is impossible to elaborate this here.13 I will therefore confine myself to some features which seem to be instructive for our question concerning the nature of legal philosophy.
Coercion is the easier case. It seems to be quite natural to argue that a system of rules or
norms which in no case authorizes the use of coercion or sanction not even in case of selfdefence is not a legal system, and this is the case owing to conceptual reasons based on the use of language. Who would apply the expression ‘law’ to such a system of rules? Conceptual reasons of this kind, however, have little power of their own. Concepts based on the actual use of language are in need of modification once they prove not to be, as Kant says mentioning, inter alia, the concepts of gold, water, and law ‘adequate to the object’.14 Including coercion in the concept of law is adequate to its object, the law, because it mirrors a practical necessity necessarily connected with law. Coercion is necessary if law is to be a social practice that fulfils its basic formal functions as defined by the values of legal certainty and efficiency as well as possible. This practical necessity, which seems to correspond to a certain degree to Hart’s ‘natural necessity’,15 is mirrored in a conceptual necessity implicit in the use of language. This shows that language, which we use to refer to social facts, is inspired by the hermeneutic principle that each human practice is to be conceived of as an attempt to carry out its functions as well as possible. Unravelling this connection between conceptual and practical necessity makes clear in what sense coercion belongs as a necessary property to the nature of law.
The second central property of law is its claim to correctness. This claim stands in genuine opposition to coercion or force, and it is an essential mark of law that it comprises such a difference.
The necessity of coercion, it has been shown, is based on a practical necessity defined by a means-end relation. In this respect, it has a teleological character. The necessity of the claim to correctness is a necessity resulting from the structure of legal acts and legal reasoning. It has a deontological character. To make explicit this deontological structure implicit in law is one of the most important tasks of legal philosophy.
All methods of making the implicit explicit can be applied here. One of them is the construction of performative contradictions.16 An example of this is a fictitious first article of a constitution which reads as follows: ‘X is a sovereign, federal, and unjust republic.’ It is difficult to deny that this article is somehow absurd. The idea underlying the method of performative contradiction is to explain this absurdity as resulting from a contradiction between what is implicitly claimed in acting to frame a constitution namely, that it is just and what is explicitly declared namely, that it is unjust. If this explanation is sound, and if the claim to justice, which is a special case of the broader claim to correctness,17 is necessarily raised, then a necessary connection between law and justice is made explicit.
It is not difficult to recognize how this argument might be challenged. One simply has to deny that law necessarily raises a claim to correctness. Once this claim disappears, any contradiction between the explicit and the implicit vanishes. The declaration of injustice contained in our first article may then be interpreted as an expression of a claim to power.
This is not the place to discuss the question of whether it is possible for a system of norms to substitute the claim to correctness by a claim to power and nevertheless remain a legal system.18 This is a question of legal philosophy, not a question about its nature. Here it suffices to say that the discussion about necessary deontological structures implicit in the law belongs to the very nature of legal philosophy.
