Continental-European Law And Morality Research Paper

1. The Separability And Separation Theses

The separability thesis says that there is no necessary connection between law and morality. This implies that all connections between law and morality are merely contingent in character. There exists no necessary relation between what the law is and what morality or justice requires, or between the law as it is and the law as it ought to be. The great positivist Hans Kelsen has put it this way: ‘Any content whatever can be law’ (Kelsen [1934] 1992).

The separability thesis defines the softest version of legal positivism. Its only claim is that it is possible to have law with any content whatever, independently of any and all demands of justice. It does not rule out the possibility that the positive law of a certain community includes moral principles, for instance, through constitutional provisions that transform human rights into positive law. Where the concept of law is understood positivistically, the only requirement stemming from the concept of law itself is that the inclusion of moral content is considered as a matter of fact, that is, as merely contingent and not in any way necessary.

A stronger form of positivism is expressed by the separation thesis. The separation thesis necessarily presupposes the separability thesis, and adds to it that there are good normative reasons for defining the concept of law in a way that excludes all moral elements. This means that the separability and the separation theses refer to two different kinds of arguments. The separability thesis, along with its opposite, the nonseparability thesis, is concerned with what is necessary, analytic, or a priori. The separation thesis, too, depends of course on these arguments, for there cannot be separation without separability. But it claims more. It does not confine itself to determining what definitions of law are possible. It also tries to identify the best definition. For this purpose, normative arguments are indispensable. There is, therefore, a division of labor between the separability and the separation theses. Arguments supporting the first thesis attempt to show that it is possible to exclude all moral elements from the concept of law; arguments on behalf of the second thesis seek to establish that this exclusion is preferable.

If the separation thesis applies, only two elements remain as candidates for the definition of law: appropriate enactment and social efficacy. The concept of social efficacy refers to such matters as habits, orders backed by threats, and to beliefs, emotions, and attitudes. Authors of a legal realist persuasion have tried, following this lead, to reduce law to social or psychic facts conceived as natural facts (Olivecrona 1939). The concept of appropriate enactment is more refined. It is impossible to distinguish between what is appropriately, and inappropriately, enacted without reference to norms conferring and defining the power of enactment. The most famous power-conferring norm is Kelsen’s Basic Norm (Grundnorm). Introducing a basic power-conferring norm, Kelsen aims at normativity without morality (Paulson and Litschewski Paulson 1998).

The elements of social efficacy and appropriate enactment can be interpreted and combined in very different ways. For this reason, a great many variations on the theme of legal positivism are conceivable. What is common to all of them is that the concepts of social efficacy and/or appropriate enactment are sufficient for the definition of law. Morality as such is neither a necessary element nor an optimal third element of the concept of law. Precisely this is contested by nonpositivism. All nonpositivists share the view that the concept of law must or ought to include moral elements. If the inclusion of moral elements is conceived as necessary, one can speak of a strong connection thesis. The strong connection thesis is the contradictory of the separability thesis. If the inclusion is conceived only as preferable, not necessary, one can speak of a weak connection thesis. The weak connection thesis is the contradictory of the separation thesis.

The most radical nonpositivist concept of law consists in the complete substitution of social efficacy and appropriate enactment by moral correctness. This would be a pure natural law theory. In practice, such a radical pure natural law theory would amount to anarchism. For this reason, serious natural law theorists such as Thomas Aquinas stress the necessity of positive law as defined by appropriate enactment and social efficacy (Aquinas 1988). The crucial question, therefore, is not whether law is to be defined either by social efficacy together with appropriate enactment or by moral correctness but rather whether or not social efficacy and appropriate enactment are to be connected with moral correctness in one way or another. There are three ways in which such a connection can be conceived. Morality can be connected with positive law, first, by including moral principles and arguments in the law, second, by limiting the possible content of law, and, third, by providing an appropriate foundation for the obligation to obey the law. One can, therefore, distinguish three different problems concerning the relation between law and morality: the inclusion problem, the limitation problem, and the problem of an appropriate foundation.

2. The Inclusion Problem

The logical basis of the inclusion problem is the open texture of law. Positivists and nonpositivists agree, first, that law has an open texture (Hart 1994) and, second, that cases falling within the open sphere of positive law are often decided on moral grounds. Such a purely factual connection is fully compatible with legal positivism. What is more, if one now goes on to assume that moral principles are incorporated by virtue of their correctness into the law through a rule of recognition qua ‘conventional normative practice’ (Coleman 1996), even then one remains inside the positivist camp. A conventional practice is a practice that either exists or does not exist. Whether or not it exists is a matter decided by the positive legal system at hand. The classification as ‘inclusive positivism’ is, therefore, correct (Coleman 1996).

Positivism yields to nonpositivism only if it is maintained that the inclusion of moral principles and arguments into law is necessary and not merely contingent. A central argument for the necessity of this inclusion is the argument of correctness. It proceeds in two steps. In a first step, the attempt is made to show that law necessarily raises a claim to correctness. The second step consists in explaining that this claim implies a necessary connection between law and morality.

Implicit claims can be made explicit by showing that their explicit negation involves absurdity. One has only to imagine a judge who hands down the following judgement: ‘The defendant is hereby sentenced to life imprisonment, albeit wrongly, because valid law was interpreted incorrectly.’ The absurdity of this judgment stems from the contradiction between the claim to correctness implicit in acts of law and its explicit negation. This contradiction can be avoided only if the claim to correctness is given up and some sort of power claim is introduced in its place. But this would be to abandon law. A social practice claiming nothing but power or force would not be a legal system. In this sense, the claim to correctness is necessarily connected with law.

A positivist can agree with this and nevertheless maintain that the necessary connection between law and the claim to correctness does not imply that there exists a necessary connection between law and morality. All he needs to say is that the claim to correctness has a purely legal content and that this legal content has no moral implications.

This leads to the second step of the correctness argument. That a case falls within the open sphere of positive law means that positive law does not determine the answer. If the judge were bound only by positive law, he could, whenever the positive law reasons run out, decide the case by appealing to his own personal preference or by tossing the dice. This, however, would be compatible with the claim to correctness only if there existed no reasons for the correctness of a legal decision outside the class of positive law reasons. Now legal decisions are answers to practical questions, and there exists a variety of reasons as answers to practical questions that are found outside the class of positive law reasons. The spectrum comprises consideration of utility, familiar ideas from the tradition about what is good and bad, and principles of justice.

Justice is correctness of distribution and balance, and questions of justice are moral questions. Legal decisions essentially concern questions of balance and distribution. Therefore, legal decisions essentially concern moral questions. This, together with the claim to correctness necessarily raised by legal decisions, leads to a necessary connection of legal and moral argument. This necessary connection of arguments does not mean that morally mistaken legal decisions cannot be legally valid. It does mean, however, that they are not only morally but also legally mistaken. In this way, the idea of justice is incorporated into the concept of law. This affects the picture of law fundamentally (Alexy 1998).

3. The Limitation Problem

If the correctness argument is sound, legal norms and legal decisions that for moral reasons do not fulfil the claim to correctness are legally mistaken, but they do not necessarily lose, on this basis alone, their legal character or their legal validity. Anarchy would be the consequence if each and every moral defect were sufficient by itself—that is, without any institutional act or decision—to undermine legal validity or even the very legal character of the norm or the decision. So far, there exists a broad consensus. Highly contested, however, is the question of whether gross injustice undermines legal validity or legal character. This question was the topic of Hart’s well-known critique (Hart 1958) of Radbruch’s famous formula (Radbruch 1946). The shortest conceivable formulation of this formula runs as follows: extreme injustice is not law. This formula, which was applied by German courts after the defeat of National Socialism in 1945 and after the collapse of the German Democratic Republic in 1989, does not require any sort of complete fit between law and morality—as the claim to correctness does. Rather, it allows that appropriately issued and socially effective norms are valid law even if they are severely unjust. It is only in cases of extreme injustice that the formula gives priority to material justice over legal certainty. In this way, it builds into law an outermost limit. This limit is substantially defined by the core meaning of human rights.

The acceptability of the Radbruch formula essentially depends on whether it is judged from the observer’s point of view or from that of a participant. It is not a problem for the nonpositivist to grant that an observer, wanting merely to describe the law of a wicked legal system, can and should use a positivistic concept of law based exclusively on appropriate enactment and social efficacy. The controversy over Radbruch’s formula begins once the participant’s perspective is considered. The participant’s perspective engages one who, from within the legal system (for instance, as an official who has to apply the law or as a citizen who has to abide by it), asks what the law requires, forbids, and permits.

The dispute about whether or not an outermost moral limit ought to be built into the concept of law cannot be decided merely by means of conceptual arguments. The meaning of the expression ‘law’ excludes neither Radbruch’s formula nor its negation. The decision can only be grounded on normative arguments. In other words, the inclusion or exclusion of an outermost moral limit cannot be based on a conceptual necessity, but only on a normative necessity.

There are good reasons for both positions. The main argument of the positivists is the argument of legal certainty. They claim that the Radbruch formula leads to hidden retroactivity which, in penal law, boils down to a violation of the principle nulla poena sine lege. This is the case because Radbruch’s formula invalidates statutes of an iniquitous legal system that permit extreme injustice. This is said to be unacceptable for, it is argued, the principle nulla poena sine lege protects everybody, even the henchmen of an iniquitous regime, so long as their atrocities are covered by the positive law of that system. The nonpositivist responds that legal certainty and, in particular, especially the principle nulla poena sine lege are, indeed, lofty values, but that they are not the only values at stake. They are in conflict with the material justice to which past and future victims of iniquitous regimes have a claim. In the end, these problems are to be resolved by weighing the principles at issue. In normal situations, the nulla poena sine lege principle must have priority. In cases of extreme injustice, however, the situation is more difficult. There are good arguments for giving priority to the protection of the rights of past and future victims over the protection of those who, implicated in the acts of an unjust state, have relied on a legal justification of their deeds on the basis of a ‘legal positivization’ of injustice (Dyzenhaus 1999).

4. The Problem Of An Appropriate Foundation

The third problem of the relationship between law and morality concerns the question of whether there is a moral obligation of all addressees of the legal system to obey the law simply because it is the law, independently of its content. This is the question of a general moral obligation to obey the law (Raz 1979). If such a general moral obligation exists, morality offers an appropriate foundation of law.

The problem of an adequate foundation is related to legal positivism in a way that is completely different from the relation of the inclusion and limitation problem to legal positivism. Positivism is compatible with the assumption of a general moral obligation to obey the law as well as with a complete denial of such an obligation. The first version can be called moral positivism, the second, neutral positivism. Moral positivism is the strongest form of positivism. It combines a moral obligation to obey even the most immoral law with the thesis that law can be as immoral as possible as long as it does not lose social efficacy. Neutral positivism expresses a far weaker form of positivism. Law imposes only legal obligations. These legal obligations need not be in conflict with moral obligations, but they can be. Neutral positivists can even say that in case of conflict, moral obligations enjoy priority. They remain positivists so long as they say that the priority of a moral obligation qua moral obligation does not undermine the legal validity of the conflicting legal obligation. The situation of nonpositivists is more complex. Not all, but some conflicts between law and morality are already solved for them before the question of a moral duty to obey the law arises. Cases of extreme injustice are conceptualized by nonpositivism not as conflicts between valid law and morality but as instances of the limits of law. Thus, from the nonpositivist point of view, there is no confrontation of a general duty to obey the law with the problem of extreme injustice. Beneath the threshold of extreme injustice, the problem of a general duty to obey the law is, however, the same for a positivist and a nonpositivist. Nonpositivism mitigates the problem but is not able to solve it. Its solution poses a moral question.

The most general reasons for the general duty to obey the law are the values of nonhostile conflict resolution and social cooperation. Neither of these can be achieved without law, and both ought to be achieved, for rights are endangered where social conflicts are resolved by brute force, and general welfare and well-being are not possible without social cooperation. This is the classical argument for a general moral obligation to obey the law as it is found—with respect to the protection of rights—in Kant (Kant [1798] 1991).

There are two kinds of objections to a general moral obligation to obey the law. The first attempts to undercut such an obligation, the second, to rebut it. The undercutting objection maintains that there are cases in which transgressing the law does not affect the values of nonhostile conflict resolution and social cooperation at all—or at any rate, so minimally that the effect can be neglected. Two examples, frequently given, are not stopping at a red traffic light in a remote area late at night where no one is around to notice it and small tax offences that no one will ever discover. If it can be taken for granted in these cases that no one will take notice of the offences, no bad example is set that might endanger the general willingness to abide by the law and, through this, law’s social efficacy. Where this point is concerned, the two cases are indeed on the same footing. There is, nevertheless, a fundamental difference. If the conditions of the traffic light case prevail—no danger, and no observer—this case is indeed a case in which violating the law has no negative effects. The decision here turns on the solution to a general problem of moral philosophy, namely, the question of whether acts or rules are the genuine objects of moral assessment. This is the focus of the debate between act and rule utilitarianism (Rawls 1955). If one follows the dictates of act utilitarianism, the general duty to obey the law will be undercut in cases such as the stoplight case. The practical impact of this solution, however, is small, for the occasions on which one can be completely confident that the two conditions—no danger, and no observer—are fulfilled, are rare.

Whilst it is possible to conceive the general obligation to obey the law as being undercut in the red traffic light case, this is impossible in the tax case. Even if only a small amount of money is at stake, it is clear that the offence will affect negatively the overall public financial situation. The advantage on the side of the offender corresponds to a disadvantage on the side of the community. Taking advantages by failing to contribute to a common enterprise where others contribute is—at least prima facie—unfair. In the tax case, the moral obligation to obey the law is, therefore, not undercut—even if, where no one knows anything about the offence, the general willingness to abide by the law is not endangered.

The bad example problem must be distinguished from the problem of whether there is a moral obligation to obey immoral law. What is at stake here is the question of rebutting the general obligation to obey the law. Essentially this problem is a problem of balancing legal certainty against moral correctness. Only those who give absolute priority to the moral value of legal certainty will never allow that the general moral obligation to obey the law may be rebutted by moral reasons. All the others have to solve difficult moral dilemmas case by case. For the others, too, there exists a general obligation to obey the law, but this obligation is not indefeasible. This is true not only for positivists, who have to take up the weighing procedure with an unlimited concept of law, but also for nonpositivists, who with their extreme-injustice clause are able to solve the most serious—if by no means all—moral dilemmas posed by law.

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