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Hermann Heller and the Legitimacy of

Legality
DAVID DYZENHAUS*

1 Introduction
Hermann Heller died in 1933 in Madrid. He was only forty-two years old and
in the midst of trying to complete a full statement of his legal philosophy in his
Staatslehre or theory of the state.1 As a Jewish, politically active socialist, he was
a prime target for the Nazis when they scented power in late 1932 and, on
Harold Laski's invitation, he travelled to England on a lecture tour. Stripped of
his academic position by the Nazi law of 7 April, 1933, the law for the 'Restoration
of the Professional Civil Service', he accepted a chair in Madrid, hoping to finish
his Staatslehre there and then to take up a position offered to him by the University
of Chicago. He suffered from a heart condition, the legacy of front-line service
as a volunteer in the First World War, and the destruction of the Weimar
Republic, together with the stress of his political activity in its last years, proved
too much for him.2
Heller was one of Weimar's most distinguished public lawyers, but he receives
little attention in Germany in comparison with his colleagues, Carl Schmitt or
Hans Kelsen. And until quite recently, he was almost unknown in the English-
speaking world.3 Yet Wolfgang Schluchter, one of Germany's leading social and
political theorists, claimed in 1968 that 'contemporary political thought has
every reason not to renounce his legacy'.4 Schluchter summarizes Heller's project
as one which seeks to 'make comprehensible the structure of law, morality and

• Faculty of Law and Department of Philosophy, University of Toronto. I would like to thank the Alexander
von Humboldt Foundation and the Social Sciences and Humanities Research Council of Canada for their support
of the project of which this article forms a part. I thank Rob Howse, John P. McCormick, Cheryl Misak, and
Christine Sypnowich for comments.
1
The manuscript was in good enough shape to be published in 1934 in Holland in an edition put together by
G. Niemeyer, one of Heller's students. It is reproduced in C. Mflller (ed), Heller, Gesammtlu Schrifun (2nd edn,
1992), vol 3, 79; hereafter SL. A substantial part of the last section of this work will appear in my translation in
A. Jacobton and B. Schlink (edj), Wtimtrr. Tht Jtmsprudtna of Crisis.
I am grateful to Ruth Ingram and Jane Winikus, Heller's daughters, as well as Elaine Robson-Scott, for this
information.
3
See the excellent discussion of Heller in W. Scheuerman, Btaattn tht Norm and tht Exception: Tht Frankfurt
School and tht Rule of Law (1994).
4
Schluchter, Entschadung fQr den sonaltn B^lfrr"""*' Hermann HeOer und die staauthtoraitcht Diskusiion in der
Wamarrr RtpubHk (2nd edn, 1983), 290.
* Oxford University Press 1996 Oxford Journal of Legal Studies VDI 16, No 40
642 Oxford Journal of Legal Studies VOL. 16
power, without tearing one of these limbs loose from the others or identifying
one with another'.' By making this his aim, by preserving tensions between law,
morality, and power at the heart of his theory, Heller presents, says Schluchter,
a genuine alternative to the 'frightful simplifications in political theory and
political practice'.6
Schluchter is the first to admit that an understanding of Heller's Staatslehre is
plagued by ambiguities in that work.7 As he points out, Heller's confidence in
the institutions of the democratic Rechtsstaat, the state bound to the rule of law,.
had to be badly shaken by the events of the 1930s. Remarkable, in my view, is
that Heller's confidence, though shaken, remained intact. Despite the destruction
of German democracy and the fact that he could not return to Germany, the
Staatslehre is a measured, dense and abstract account of the Rechtsstaat and its
place in Western culture from a man more than capable of quick and biting
polemics. Moreover, it is an account of the Rechtsstaat, and thus of the rule of
law, which can contribute significantly to contemporary debate.
Here I explore that account. I suggest that ambiguities in Heller's argument
are in a way necessary components of that argument, given Heller's aim of
presenting a theory of legitimacy and legality which preserves tension at its heart.
But before I begin with that account, it is important to have some sense of the
problem to which Heller was responding. I will refer to it as the 'Weberian
problematic'.8

2 The Weberian Problematic


In Economy and Society, Max Weber makes the following observation: 'today the
most usual basis of legitimacy is the belief in legality: The readiness to conform
with rules which have been enacted according to the formally correct and
accepted procedures'.9 This observation has been much criticized, first, for
reducing the basis of legitimacy to mere belief; secondly, for making the belief
latch onto mere formal compliance with formal procedures.

5
Ibid at 116.
4
Ibid at 290.
7
For Scblucfater's account of the ambiguities in the StaatsUhn, and his own (ketch of a resolution, tee, ibid at
198-216. The resolution I offer below differs from Schluchter't mainly because I do not accept his view that
Heller regarded the principles of ethics or morality as absolute and unchanging. This view requires Schluchter to
interpret the constraints on political power for which Heller argues as essentially negative: as long as legislators
do not offend against the rules of morality, their prescriptions will count as law. See Schluchter, ibid at 208-10.
Schluchter, ibid, suggests Heller's legal and political theory as the most productive way out of the Weberian
problematic. See also his The Rise of Western Rationalism; Max Webers Developmental History (1981) at 104-5.
' See G. Roth and C. Wittich (eds), Weber, Economy and Society, first pub 1922 (1978), vol 1 at 37. Here I
adopt David Beetham's translation of 'Die heute geUufttigste LeginmitStsform ist die LegaliUtsglaube: die
FQg&imkeit gegenuber formal korrekt und in der Qblichen Form zustandegekommen Satzungen'; see Weber, J.
Winckelmann (ed), VPixtschaft und GtstUschaft (4th edn, 1956), vol 1 at 19 and Beetham, Max Wtber and the Theory
of Modem Politics (2nd edn, 1985) at 265. In the account of the problems which follow from this formulation, I
rely heavily on Beetham, ibid at 264-9, as well as Beetham, The Lepamation of Potoer (1991) ch 1. For a particularly
rich account of the Weberian problematic, as well as fruitful suggestions as to how it can be addressed, see D.
Scrulli, Theory of Social Constitutionalism: Foundations of a non-Marxist critical theory (1992).
WINTER 1996 Hermann Heller and the Legitimacy of Legality 643
The first criticism is that to equate legitimacy with belief in legitimacy is to
exclude the possibility that there are standards of legitimacy apart from what
people happen to believe. There is no doubt that this was Weber's intention.
The quotation is not so much an observation but a conclusion which follows
from his claim that such standards, in the sense of substantive values that could
attract a consensus, are not available to us. In the dramatic terms of 'Science as
a Vocation', we live in a world where different 'gods and demons' vie for our
allegiance. But our world is 'disenchanted': tradition no longer provides an
anchor for our choice between values, and science and rational thought in general
have proved themselves incapable of supplying an adequate surrogate.10 Further,
it is the case for Weber that 'readiness to conform' is evidenced when there is
in fact compliance, whether compliance is produced by coercion or conviction,
with the rider that at least officials have to comply for reasons other than fear."
The second criticism is that if the formal rationality of legal procedures is the
only thing onto which the belief in legitimacy can latch, any law that survives
such procedures is legitimate. That is, Weber puts forward more than the
standard positivist thesis that law is valid no matter how morally repugnant its
content as long as it has been enacted in accordance with the formal criteria for
valid law. For it follows from his definition of legitimacy that such law is also
by definition legitimate. Legitimacy is collapsed into formal validity.
Weber's development of the idea of the 'charismatic' authority as the basis for
true political leadership in the age of disenchantment can only underline these
criticisms.12 The basis cannot, on his view, be tradition, since such a basis has
no general purchase in a disenchanted age. Nor can the basis be law itself, since
the authority of law is now merely formal. The basis is in the leader's charisma—his
ability to articulate a political vision. In a system where the leader is elected by
direct vote, the basis of his legitimacy is not then the vote but the vision which
attracted the vote. The vote is merely the mark of his success.
For Weber, there are no criteria for success beyond success itself. Although
he was himself a liberal,13 he held that once the people acclaim the leader his
authority is established, no matter the content of the vision which wins their
acclaim. And the people's role in democracy, as he understood it, is and should
be limited to acclaim. Since the essence of politics is conflict, and since the
'masses' are capable of acting only in an emotional and dangerous fashion, their
role is to be confined to being passive objects rather than political actors.14
Weber did not celebrate the idea of charismatic authority—he thought rather
10
Weber, 'Science at • Vacation' in H. H. Gerth and C. Wright Mill* (ed»), From Max Wtben Essays in Sociology
(1947) 148.
" Compare ch» 2 and 3 of Weber, above n 9 , vol 1, at 214, sec3.
12
SwfWd, w M , « 241-5, 266-71, and vol 2, at 1127-30.
15
For an exploration of Weber'i Hbcraliim, tee Beetham, "Weber and the Liberal Tradition', first pub in (1989)
30 European Journal of Sociology 311, reproduced in A. Horowitz and T. Maley (eds), The Barbarism of Reason:
Max Wtber and the Thnhght of EnUghunmtnt 99.
14
See, for example, 'ParUment und Regierung in neugeordeneten Deutschland', in Weber, J. Winckebnann
(ed), Gesammtla PoUasdu Sckrifien (3rd edn, 1958) 306, at 382-406. For disciusion, »ee Beetham, Max Weber
and tht Theory of Modem Politics, above n 9, ch 4, and 264-9.
644 Oxford Journal of Legal Studies VOL.16
that one had to be resigned to it. And he hoped that such authority would be a
mere counterbalance to the system of political compromise which he understood
to be the essence of the normal politics of a liberal democratic constitutional
state. The charismatic authority of the leader would be just the exceptional last
resort when conflict could not be resolved by compromise and thus threatened
to spill over the framework of legal order.
Correspondingly, he argued that in a modern democratic state the charismatic
leader will find his charisma rationalized in that he must seek re-election at some
point, and thus become accountable to the electorate. And he pointed out that
such a leader would have to stabilize his rule through the mechanisms of a legal
order."
Among Weber scholars, opinion is divided as to just how Weber envisioned
the structure of balance between charismatic executive authority and formally
rational legal order.16 But it is. difficult to see how he thought it could be
maintained, at least under conditions of severe political conflict.
This difficulty arises because for Weber charismatic authority and legal or
rational authority are two different kinds of authority.17 Neither of these, nor
his third kind—traditional authority—exists in a pure form, and any actual
combination of two or all of them is one of compromise, rather than one
of internal reciprocal relationship. The charismatic leader finds his authority
'routinized' through the mechanisms specific to rational legal order because this
kind of rationality is all that is available to us. And rational legal order must
compromise with charismatic authority because legal order by itself cannot settle
the perpetual conflicts which mark politics. Indeed, all that legal order can do
is to make social life relatively stable by making it to a large extent certain
and predictable as well as providing ruling elites with an effective means for
promulgating, implementing, and enforcing their policies. It is true that one of
the marks of legal order is that the rulers are subject to law. But since the content
of the law is at their disposal, this cannot be, on Weber's view, an effective
constraint on power.
All that charismatic and legal authority have in common is that they both
arise once tradition no longer has a hold on us, in the sense of providing an
habitual and substantive basis of value for all or most of the subjects of a
particular society. From now on value has to be consciously created and then
imposed. Charismatic authority is the source of its creation and legal authority
the means of its imposition. But, given this, the issue no longer seems one of

" Weber, above n 9, vol 1, at 266-71.


16
Compare W. Mommsen, Max Weber and German Pabacs, 1890-1920 (1984) with Beetham, Max Weber and
the Theory of Modem Politics, above n 9. Mommsen's view that Weber intended that charismatic authority should
Dump legal authority ii tomewhat tempered in his essay T h e Antinomian Structure of Max Weber's Political
Thought1, in (1983) 4 Current Penptawa in Social Theory 289. For a discussion of this issue, which takes as its
starting point Weber's attempt to carve oat the sphere of the political from the subjectivism of modem culture,
see L. Scaff, Fleeing the Iron Cage: Cultun, Polioa, and Modernity in the Thought of Max VCbber (1989), ch 5.
" See Weber, above n 9, vol 1, ch3, at 215-16.
WINTER 1996 Hermann Heller and the Legitimacy of Legality 645
balance between two kinds of authority, but one of charismatic authority sub-
mitting to the routinization of legal authority only for so long as this seems
expedient to the charismatic leader.18
In sum, Weber's collapse of legitimacy into belief in legality, seems, given his
understanding of legality, almost perforce driven to the conclusion that might
makes right." What I call the Weberian problematic embraces those attempts
to work out the relationship between politics and law within the terms set by
Weber's understanding of the relationship between politics and (positivistically
conceived) law as one between two different kinds of authority.
Notice that the relationship here is between politics and law, not between
political morality per se—the moral values that should govern political order—and
law. The Weberian problematic is premised on the claim that there is no such
thing as true or universal political morality, merely various political ideologies
which contend for dominance. Liberalism had been the major contender for the
title of the true political morality and it was liberalism, to be sure, which fought
for the establishment of rational legal authority. But the connection between
liberalism and the rationality of legal order is both historically contingent and
precarious.
An attempt that accepts these terms, whatever its substantive differences with
Weber, is more or less willingly driven to conclude that might makes right.20 No
better illustration of the problematic exists than that offered by the theories of
law and politics of Carl Schmitt and Hans Kelsen.
Schmitt is not so much forced to embrace the thesis that might makes right;
rather this is the starting point of his reflections on politics and law. The mark
of politics is for him the conflict between self-defined friends and enemies. This
is especially true of the age in which we live, one characterized not by a universe
of shared values but by a pluriverse of conflicting and irreconcilable ideologies.
These conflicts cannot be contained or rationally decided. They can only be
won, which means either the annihilation of the enemy or his subjugation. In
either case, what concludes victory within the territory of a nation state is the
establishment of substantive homogeneity—a radical form of communitarianism
in which no dissent or deviance is tolerated.21
18
Indeed, in the debates about the constitutional form of the Weimar Republic, Weber argued that the only
way in which the legal order of Weimar could cope with the politics! conflict he anticipated would be by making
constitutional tpace for a powerful executive president. The president would be elected by direct vote of the
people, and he would have the explicit authority to act with more or less unfettered discretion when (as he saw
it) the need arose. See Mommsen, Max Weber and German Poiida, above n 16, ch9, at 353. Notice drat this
problem is directly paralleled by die difficulty in working out just how Weber envisioned the balance between the
two ethics he outlined at the end of his lecture on 'Politics as a Vocation'—the 'ethic of conviction' and the 'ethic
of responsibility'. See 'Politics as a \focation' in Gerth and Mills (eds), above n 10, 77, at 127-8. It is difficult,
that is, to see how die ethic of responsibility can temper the ethic of conviction other than by talking in a rather
opaque, Nietzschean fashion about politicians 'taking responsibility for their own fate'. (Here I quote ScafT, above
n l o a t 185.)
" See, for example, S. Wolin, 'Max Weber: Legitimation. Method, and the Politics of Theory', first pub in
(1981) 9 Pobdad Theory 401, reprinted in Horowitz and Maley (eds), above n 16, 287 at 306.
20
As I point out in the text below, the tradition of Anglo-American legal positivism in this century cannot be
fitted in any simple way into the Weberian problematic.
31
In this paragraph, and in what follows, I summarize the position put forward in Schmitt, The Concept of the
Political, first pub 1932, trans by George Schwab (1976).
646 Oxford Journal of Legal Studies VOL.16

Schmitt is sometimes accused of proposing an aesthetic of violence—one


which glorifies lawless mortal struggle as the ultimate source of meaning. While
there is no doubt diat this aesthetic is expressed in his work, his attitude towards
politics, and hence towards law, is more complex. Schmitt in fact yearns for die
order and security which Hobbes promised at die end of Leviathan.22 He believes
witii Hobbes diat diis condition can be achieved only by getting rid of politics
widiin die nation state. Where Hobbes went wrong, according to Schmitt, is in
his individualism. It is die individualistic moments in Leviathan which subvert
Hobbes's aim of providing die basis of die 'mutuall Relation between Protection
and Obedience'.23
Those moments, says Schmitt, are expanded by liberal political philosophers
until diey open up die terrain of civil society completely, allowing for a free
competition of individual conceptions of interest. But die freedom of diat
competition is an ideological cloak which conceals die conflict between a few
powerful interest groups, each seeking to capture die state in die service of its
own ends.
Substantive homogeneity, once achieved, has die effect of displacing politics
from die internal life of a state to foreign relations between states, each widi its
version of substantive homogeneity. In a deliberate echo of Hobbes's definition
of war as not 'actuall fighting; but . . . die known disposition diereto',24 Schmitt
does not find it necessary for the preservation of substantive homogeneity diat
diere exists an actual conflict between states. All diat one needs, he dunks, is
die potential of conflict between states. This potential is guaranteed by die
achievement of die substantive homogeneity in whose defence die subjects of a
particular state are prepared to die.
Schmitt never disputes die value of legal order (as positivists conceive it), but
he does dispute attempts to make it die basic value of a society. It cannot be
basic because its value is purely instrumental—it can serve only to secure
and stabilize normal political order. And normality first and foremost requires
substantive homogeneity—ridding die state of the internal political conflicts
which liberal individualism perpetuates.
Given diis snapshot of Schmitt's position, it is difficult to contest Jurgen
Habermas's allegation diat 'If we are to judge Weber here and now, we cannot
overlook die fact diat Carl Schmitt was a "legitimate pupil" of Weber's'.25 It is
of course true diat Weber would have criticized as a ghasdy and naive mistake
bodi Schmitt's attitude towards liberalism and his belief diat modern society
could beradicallyhomogenized. But die question for Weber is from what vantage

a
C. B. MacPherson (ed), Hobbes, Leviathan (1985) at 728.
23
Ibid. I explore this theme in detail in ' "Now the Machine Runs Itself: Carl Schmitt on Hobbes and Kelsen'
(1994) 16 Cardoxo LR 1. For Scnmitt on Hobbes, see nil Dtr Ltmathan in dtr Siaaukkrt des Thomas Hobbes: Sam
und Ftklschlag tines pohaschtn Symbols, first pub 1938 (1982).
M
Hobbes, above n 2 2 at 185-6.
" See O. Stammer (ed), Max Weber and Sociology Today (1971) «t 66.
WINTER 1996 Hermann Heller and the Legitimacy of Legality 647
point he would make this judgement, given his account of legitimacy and
legality."
Kelsen, indeed, clearly saw that Schmitt's celebration of homogeneity and his
attitude towards liberalism and its political institutions spelt disaster.27 And Kelsen
quite vigorously defended the institutions of liberal parliamentary democracy as
necessary elements of western civilization.28 But his own work in legal theory is
exclusively devoted to working out the internal structure of legal order, on the
assumption that Weber's account of legitimacy is correct.29
The main difference between Kelsen and Weber is that Kelsen's starting point
is not a social and historical claim about what legitimacy has come to mean for
most people. Rather Kelsen starts with an allegedly scientific value which inheres
in elaborating law in accordance with his doctrine—the Pure Theory of Law.
Kelsen never quite says what this scientific value amounts to, nor why it should
count as a value. Most often it seems that it just the value which happens to
inhere in legal order. At other times, it seems that this value has much to do
with Kelsen's avowed epistemological relativism, which finds in legal order a
value that is somehow beyond ideology. But at any rate, he thinks that if and
only if we take this value as our starting point, will we achieve a proper
understanding of law.30
Kelsen maintains that proceeding in this way will produce the following picture
of legal order. Legal order is composed of a hierarchy of legal norms, where the
validity of any particular norm can be traced to its authorization by a higher
order norm, until we reach the most fundamental norm of all, the Grundnorm.
The validity of the Grundnorm has simply to be assumed.31
Kelsen also claims that this structure is a logical one in that it is free of
contradiction. By this claim, he does not mean to imply that the content of
particular norms can be deduced from higher order norms in a contradiction-
free way. Rather his claim is that, in the event of a conflict or contradiction
between two norms, there will always be a higher order norm which authorizes
some legal authority or official to resolve the conflict. That is, it is not so much
the content of valid legal decisions which is got from higher order norms, but
the authority to make a norm which deals with the case which has arisen. Content
is given by the will of the authority or official who is authorized to decide that
case. In the case of the constitution or most basic positive norm of a particular
24
For an attentive account of Schmitt and Weber, »ee G. Ulmen, PoHtitcher MtkratrL Eint Studu Obtr Max
Weber und Cart Schmut (1991). For a critique of Habermas's claim* and of Ulmen'i irudy, tee M. Eberl, Dit
LtgitimMt der Modems: Kulturkriak und Htmchafukonzepuon bei Max Wtber wid tm Cart Schmut (1994). Eberi,
however, does not addreu the significance of rhe fact thai Schmitt operates within the Weberian problematic,
whatever the substantive differences between their positions on liberalism and homogeneity. I deal with these
iuues it greater length in T h e Legitimacy of Legality*, a review article of Habermas, FaJuuitdt und Gtltung:
BtttrOgt xw Disktmchtoru da Rxhts laid da danokraotchen Rschtmaan (1992), forthcoming in AnJav Jur Rtchts-
und Soziatphflostphie and in (/nrtwriry qf Toronto LJ.
" See K e l i e n , "Xa soil der HQter der Verfassung sem?" ( 1 9 3 0 - 1 ) 6 DUJusuc 576.
" See Kelsen, Vom Warn und Wen da- DtmokratU (2nd e d n of 1 9 2 9 , 1 9 8 2 ) .
29
Here I rely o n Kelsen'i classic Rtint Rechalthn o f 1 9 3 4 , trans by B. Lhchewski Paulson and S. Paulson as
Introduction to tht Pwbltms of Ltgal Theory (1992).
30
Ibid at 1-5.
31
Ibid at 5 5 - 6 4 .
648 Oxford Journal of Legal Studies VOL. 16
legal order, there is no higher order norm which can grant authority to decide
on its content. Its content is, Kelsen says, given by historical events like the
enactment of a constitution by its founders.32
The upshot of Kelsen's Pure Theory of Law is, then, that legal order is no
constraint on political power, but simply its vehicle or instrument.33 Kelsen
sometimes shows signs of temptation away from this path.34 For example, he
presents his claim that the state is no more than a personification of the totality
of the rules of a particular legal order as simply a conceptual result of the Pure
Theory.3' But this claim is best interpreted in terms of his desire to have political
power dispersed within the rules of legal order until the point where the state
disappears into a system of impersonal rules—the fulfilment of the liberal,
political ideal of the rule of law presented as a conceptual necessity.36
However, it is precisely Kelsen's commitment to purely conceptual argument
which precludes him from depicting the relationship between politics and legal
order differently from Weber or Schmitt. From the standpoint of law, that is, of
the Pure Theory of law, politics is the irrational force to which the rationality of
law is subject. Kelsen's submerged political ideal of FUhrerlosigkeit, a condition
of legal order such that there is no need for arbitrary political decision, makes
legal order potentially subject to any political ideology. Every state is, Kelsen
often asserts, a Rechtsstaat.37
It is this depiction of the relationship between law and politics which, im-
mediately after the Second World War, was the ground of Gustav Radbruch's
accusation that legal positivism made German jurists defenceless against Nazi
statutes which had an arbitrary and criminal content.38 Radbruch explains that
positivism offered no justification internal to law of the validity of law, resting
content with the claim that a law is valid as long as the power exists to implement
it.39 He himself asserts that the positive law, besides aiming to achieve the legal
values of certainty and purposiveness, must also aim at the legal value of justice.
If law does not so aim, it will at some point lose its legal quality.40

3
Kelsen resists equating the Gnmdnonn, w h o s e validity is presupposed, with the constitution, which exists as
a positive legal A c t . B u t the validity o f the constitution has, like that of the Gnmdnorm, l i m p l y to be assumed.
See ibid at 5 7 .
33
Kelsen once said that behind the positive law o n e always finds d i e 'Gorgon head o f power', VerCfftmUchungtn
der Vmamgung dtr Detaschen Staaxsnchaltkm ( 1 9 2 6 ) 3 at 55; quoted in H . Order, RechuUhrt, Staatssoxiologit und
Demokraaatuorie bei Hans Kthfn ( 2 n d edn, 1 9 9 0 ) at 2 4 6 .
M
I explore this theme in detail in m y forthcoming book, Thu/ii Revenge: Carl Schma, Hans Kdsen, and Hermann
Heller in Wnmar.
35
S e e Kelsen, above n 2 9 at 1 0 1 .
36
As Schmitt said, ' N o w the machine runs itself ("Die M a c h i n e lfluft j e m v o n selbst 1 ); Potiasch* Theobgie: Vitr
Kapud zur Lehrt von der SouverOnu&t (2nd edn of 1 9 3 4 , 1 9 9 0 ) at 6 2 . S e e *Now m e M a c h i n e Runs Itself, above
n23.
37
See, for example, Kelsen, Der Soziolopscht und der jurismJu Staaabtgriff (2nd edn of 1928, 1981) at 253.
M
Radbruch, 'Gesetzliches Unrecht und ObergeserzHches Recht 1 (1946) in E. Wolf and H. P. Schneider (eds),
Radbruch, RechtsphOotopku (8th edn 1973) 3 3 9 at 344.
39
Ibid at 3 4 4 - 5 .
*° Ibid at 3 4 5 - 6 . For a translation of the relevant passage, known in Germany as the Radbruch formula, tee S.
Paulson, 'Lon L. Fuller, Gustav Radbruch, and the "Positivist* Theses' (1994) 13 Law and Philosophy 313 at
317.
WINTER 1996 Hermann Heller and the Legitimacy of Legality 649
It is important to note two features of this critique of legal positivism. The
first feature tells against it. It is that positivism is not a monolith. Radbruch's
critique fails to distinguish between the democratic, statutory positivism held by
Weimar public lawyers such as Gerhard Anschutz and Richard Thoma and the
neo-Kantian positivism espoused by Kelsen.41 Such statutory positivists ground
their positivism not in any scientific value; rather, they hold that official fidelity
to the letter of statutes is politically valuable when the statutes are enacted by a
properly elected and accountable democratic assembly.
It goes almost without saying, therefore, that Radbruch's critique cannot apply
in any simple way to the tradition of Anglo-American legal positivism in this
century. This tradition, which includes H. L. A. Hart, Joseph Raz, Neil Mac-
Cormick, Philip Soper, and Frederick Schauer, holds the positivist 'separation
thesis', which asserts that there is no necessary connection between law and
morality. But it also holds that there are standards of sound morality—the
standards of liberal political morality—to which one should resort in order to
judge the content of positive law/2
Radbruch's critique, in contrast, is of a position which holds both the separation
thesis and that there are no standards of sound morality. The critique is, hence,
not of legal positivism per se, but of legal positivism as manifested within the
Weberian problematic. Nevertheless, I shall consider later in what way the
critique might apply to Anglo-American legal positivism as well as to democratic
statutory positivism.43
The second feature of this critique tells in its favour. It is that it was not
confined to jurists who reacted against the horrors of Nazi Germany in the
immediate aftermath of the Allied victory in Europe. It was made well before
the collapse of Weimar and in much more elaborate form by Herman Heller.44
It cannot, therefore, be dismissed as the understandably naive reaction of those
appalled by the revelation of the horrors of Nazi Germany.45
41
Paulson, ibid, defends legal positivism, or (better put) positivisms, against Radbruch'i accusation, one which
was taken u p by L. Fuller in 'Positivism and Fidelity to L a w — A Reply to Professor Hart' ( 1 9 5 7 - 8 ) 71 Harvard
LR 6 3 0 . But I d o not think his defence succeeds once o n e understands Radbruch's (and Fuller's) ground for
putting forward various theses as to h o w legal positivism prepared die way for die Nazi seizure of power and then
was complicit in the establishment of a N a z i 'legal order'. A s I point out in the text, that ground has to d o , not
with any judicial attitudes which are direct products of legal positivism per se, but with the Weberian problematic
which can express itself in practice in several conflicting tendencies. It may be that Paulson would not regard this
ground as falling within the province o f legal theory (above n 4 0 at 3 5 7 ) ; but that is to b e g the question, with
Kelsen, of what the proper scope of legal theory is. For an illuminating discussion of the statutory positivism of
Weimar democrats, see P. Caldwell, 'Constitutional Theory in the Weimar Republic: Positivists, Anti-Positivists,
and the Democratic Welfare State', P h D Hi« Cornell University, 1 9 9 3 , chs 6 and 7, and 'Legal Positivism and
Weimar Democracy' ( 1 9 9 4 ) 3 9 American Journal of Jurisprudent* 2 7 3 .
42
T h e classic statement o f this position remains Hart, The Concept of Law ( 1 9 6 1 ) .
45
For a Radbruchian critique o f both traditions of legal positivism, sec R. A l a y , Bepiff und Gtltung da Rtdus
(2nd edn, 1994). Alexy does not address the Weberian problematic but engages legal positivism o n the terrain of
conceptual analysis. O n my view, this engagement is best m a d e within the context o f the Weberian problematic.
44
H i i flnt o h b o r e t c statement o f diis position was published in 1926, "Die Rriiis der Siaatslehre', in Heller,
above n 1, vol 2 , 3 . For a similar critique in F n g l k h , which was completed in 1 9 4 3 and deeply influenced by
Heller, see J. HalloweH, The Decline of Ubtrahsm as an Ideology: with particular reference to German poHocc-Aegal
thought ( 1 9 7 1 ) .
45
For this influential description of Radbruch's critique, see Hart, 'Positivism and the Separation of Law and
Morals', first p u b in ( 1 9 5 7 - 8 ) 71 Harvard Law Review 5 9 3 , reproduced in Hart, Essays in Jurisprudence and
Philosophy ( 1 9 8 3 ) 4 9 at 7 2 - 8 .
650 Oxford Journal of Legal Studies VOL. 16

3 Heller's Position Sketched


The Weberian problematic outlined above describes essentially what Heller took
to be the problem which legal and political theory had to overcome. Heller said
of Weber's understanding of legitimacy that it was simply false except in so far
as it detected a 'degeneration in contemporary legal consciousness'.46 Heller
took that degeneration to amount to two tendencies in legal and political thought
which Schmitt and Kelsen exemplified. These tendencies, though in tension
with each other, had a common origin and the same result.
The common origin is in the view that since there can be no universal political
morality, we should give up the search for a basis in political morality for legal
and political order. The first tendency which follows from this view is the
Kelsenian, neo-Kantian line, which seeks refuge in legal order. There it confines
itself largely to explicating the structure of that order on the assumption that it
is given structure by a value whose status has to remain mysterious because this
tendency eschews justification on the basis of a claim as to its moral soundness.
The second, Schmittian, tendency is a kind of political existentialism, which
hopes for order on the basis of substantive values created initially through an
act of irrational decision.47
The two tendencies are clearly in tension with each other. The Kelsenian
tendency deals with political power by trying to make it disappear, thus ignoring
what Heller calls the 'law-formative character of power'. The Schmittian tendency
deals with power by glorifying it, thus ignoring what Heller calls the 'power-
formative character of law'.48 Hence, Heller says that these tendencies are mutual
falsifications of each other.49 Each ignores a vital part of reality which the other
upholds as the sum total of reality. Each invites the conquest of law by irrational
power. And each has no resources to deny the inevitable claim of the powerful
that their power is ethically justified.50
The task Heller sets himself is to deal with these two tendencies by confronting
the Weberian problematic head-on. He sets out to show not only that law and
power are intrinsically connected, that law is power-formative and that power is
law-formative, but that there is a third element which has to be taken into
account if one is to make sense of the reciprocal relationship of law and power.
This third element is the element of ethics. For, as we shall see, Heller argues
that the exercise of power through law requires legitimation. And by legitimation
he means not merely a successful assertion of the lightness of one's political
ideology, but a genuine moral basis for legitimacy.
Heller maintains that those who work within what I have called the Weberian
problematic make the mistake of supposing that because ethical practices do not
** S L a t 3 3 1 .
47
For a general discussion of thii tendency, as well as of die Neo-Kantianism to which it reacted, tee C. von
Krockow, Du Entvhrvhing: Ein* Ununuckung aba- Ernst JOjigcr, Carl Schmut, Martin Heidtggtr, first pub 1958
(1990). \fan Krockow"! account of Kelsen and Schmitt owes much to Heller.
" SL at 393.
** 'Die Knsis der Staatslehre', above n43, 13-15, at 14.
50
SL at 331-2.
WINTER 1996 Hermann Heller and the Legitimacy of Legality 651
afford us an absolutely certain or secure foundation that these provide us with
nothing, and therefore should play no role in our understanding of law. Such a
mistake is, on his view, the same as that made in the declaration of the roof of
a house whose foundations are insecure that it will do without foundations and
so stand by itself."
However, with Weber,. Schmitt, and Kelsen, Heller supposes that the con-
nection between liberalism and the rationality of legal order is an historically
contingent one. As we shall see, he accepts the separation thesis in so far as it
maintains that there is no necessary connection between law and the set of moral
values which one might standardly associate with liberalism. Indeed, he accepts
an even stronger version of the separation thesis, one which maintains that there
is no necessary connection between law and any particular set of moral values.
The relationship Heller seeks to establish between law and morality (or ethics,
the term he generally prefers) is really not about a connection between law and
anything in the sense that law must coincide with or correspond to a set of
values. Rather, the relationship is manifested in the structure of legal order itself.
Law necessarily constrains political power in such a way that the exercise of
political power must not only claim to be ethically justified, but must also
sincerely seek to be justified.
Notice that positivists of all stripes are willing to concede bodi that law
constrains political power and that the powerful will claim that their exercise of
power through law is justified. What they deny is that the constraints are
necessarily moral or ethical ones and, hence, that there is any presumptive reason
to believe the claims of the powerful. Heller, in contrast, believes that one can
assert that the constraints are ethical while at the same time denying that that
there is a presumptive reason to believe the claims of the powerful. He wants to
resist both the 'moralization' as well as the 'amoralizatdon' of law.52
This is a complex position. It requires elaboration of the idea of an ethical
foundation to law which has content, though one which is not prescribed by any
particular philosophy or ideology. Indeed, it is part of his position that just as
law requires an ethical foundation, so that foundation requires law in order for
its content to be manifested. That is, the claim is not just that law, in the sense
of positive law, permits us to make ethical rules enforceable. His claim is rather
that it is law which makes it at all possible to produce ethical rules. On Heller's
understanding of ethics, the content of ethical rules can and should be different
according to time, place, and politics. The content of ethical rules is, in other
words, relative to culture, but that does not, he thinks, commit his position to
the kind of relativism which says that ethics is just a matter of what the people
of a particular culture happen to believe. For this latter kind of relativism
presupposes exacdy the Weberian account of legitimacy which Heller rejects.

" 'Bemerkungen zur suits- und rechtstheoretuchen Problematik der Gegenwarf, fint pub 1929, in Geuanmtiu
Schrifun, above n 1, vol 2, 249 at 269.
" SL at 303.
652 Oxford Journal of Legal Studies VOL. 16
In sum, for Heller law, political power, and ethics, have to be conceived in
terms of a dialectical relationship in which no element can be reduced to another,
but in which all stand in reciprocal relationship. This relationship exists primarily
between what Heller calls the ethical 'fundamental principles of law' and the
rules of positive law. The idea of law has to be established by 'relativizing the
positive law to suprapositive, logical and ethical, fundamental principles of law
[Rechtsgmndsatze]'."

4 Heller on Legitimacy
One of the more puzzling claims Heller makes in his Staatslehre occurs just after
his critique of Weber's understanding of legitimacy. He says, 'The state is justified
in so far as it exhibits, at a particular level of development, the organization
necessary to secure the law'.54 But he immediately qualifies this seemingly
authoritarian claim by saying, 'In the first place we understand by law here the
fundamental principles of law which are foundational of positive law... . The
individual law receives all its obligatory force only from the superior, ethical,
fundamental principle of law'." Hence, Heller is not merely saying that a state
is justified as long as it puts in place an effective organization. For, when the
issue is the legitimacy of legal order, law has to be understood primarily in terms
of the ethical fundamental principles of law.
Now this qualification might seem to make Heller into some kind of natural
law theorist, one who wishes to say that the law fails to be law unless it meets
some suprapositive set of ethical standards. But Heller immediately adds a
second qualification to the first. The fundamental principles of law, he says,
aspire to social validity and that requires that they are manifested by the decision
of what he calls an 'authoritarian power'; by this he means a legal authority
which 'pronounces upon and implements that which is supposed to be right in
a concrete situation'. 56
What then does Heller mean by the claim that the 'state is justified in so far
as it exhibits, at a particular level of development, the organization necessary to
secure the law'? For Heller, the state is the 'efficacious, decision unit' for a
particular territory.57 It is the organization which is equipped to make final and
effective decisions on any matter which requires a resolution for the maintenance
of social co-operation between all the inhabitants of the territory. In order to
fulfil this role, the organization must be superior to any other, that is, it must
be sovereign.58
Here we have to make a distinction between co-ordination and co-operation
which Heller's legal philosophy clearly presupposes, although he does not draw

u
SL at 332.
55
Ibid.
54
SL at 332-3; moreover, he stresses that more than one interpretation is always pouiblc within that situation.
57
SL at 339.
" SL at 358.
WINTER 1996 Hermann Heller and the Legitimacy of Legality 653
it in so many words. The state arises to meet the twin needs of modern social
life. First, there is the need for social co-ordination in order to solve problems
of increasing social differentiation and hence complexity. Secondly, there is the
need which arises from what is termed in contemporary political debate 'the fact
of pluralism'.59 It is the need for co-operation between individuals and groups
who, despite their different views about the good, share a common fate because
they live within the same territory.
The second need raises more urgently the problem of legitimacy. The state
meets it by making a final decision on the terms of co-operation in dispute but
there is a problem of legitimacy here. For Heller the state as an organization is
justified or legitimate just because without it social co-operation could not be
maintained. But no decision on social co-operation can be uncontroversial.
That the state is necessary supplies its justification. But it is important to have
in mind throughout what follows that the necessity is for an organization capable
of securing co-operation and not mere co-ordination. Heller is more than aware
that one can attempt to explain the state purely in terms of its co-ordinatory
role—securing the compliance of legal subjects with the commands of the
powerful. On such an explanation, the hallmark of law becomes the law's
effectiveness through sanctions which override the contrary will of dissenters;
and this emphasis on co-ordination through coercion is, he holds, a positivist
mistake.60 Co-operation is different from co-ordination in that it requires that
dissenters, however much they disagree with the final decision, nevertheless
regard themselves as bound by the state's decisions.
Heller agrees with Weber and Schmitt that politics is inherently conflictual.
But unlike them, he does not think that the nature of politics in the modern
state is given by conflict so that, as Schmitt asserts, politics becomes conceived
as about the way in which its participants define their friends and enemies.
Schmitt, note, does not shy from the implications of this assertion. He is explicit
mat the 'real meaning', the 'essence', of this distinction is that it 'departs from
and preserves the real possibility of physical killing'.61
Heller adopts the opposite stance. Politics for him is conflict but a conflict
whose precondition is the renunciation of physical force as the means for settling
disputes. The political is the struggle between conflicting parties to influence or
determine the terms of social co-operation. And that requires in turn that disputes
are settled on a basis which justifies a description of the state's decisions as
securing co-operation and not mere co-ordination.62
Effective decisions of the state organization are necessary if there is to be social
co-operation. But, Heller argues, it is also necessary that those decisions be
expressed in legal form, where form is not understood as merely technical—law
as the technique of making the commands of the powerful known to legal

" John R»wU, Political Liberalism (1993).


60
SL at 376-7.
61
Schmitt, above n 21 at 33. (I have amended the translation slightly.)
" SL at 313-14.
654 Oxford Journal of Legal Studies VOL.16
subjects. He makes the startling claim that legal form presupposes the ability to
make a distinction between the just and the unjust. This ability, Heller notes, is
indeed one to which the powerful at least pay lip service, since they always claim
that their decisions are ethically justified.63 The crucial question for him is, of
course, how the distinction is part of the structure of law itself such that it makes
a difference to the exercise of power through law.
Heller thought that an important insight in answering this question is to be
found in Spinoza's maxim—oboedientia facit imperantem—'obedience makes the
ruler'.64 The insight for Heller is that state power can never be a mere projection
of will from the powerful to those subject to them, from ruler to ruled. On
Heller's view, political power is a relational resource which cannot be monopolized
by any one group.
Some of Heller's most difficult pages are devoted to this topic.65 Their argument
can be reconstructed as follows. State power or successfully organized political
power cannot be understood as the monopoly of the most powerful. The state
organization consists of relations between the different groups whose activities
constitute it, since it has to be brought into being and maintained in existence
by the deliberate activity of individuals. These individuals include both the most
and the least powerful among those subject to the state.
But the state cannot be reduced to the interactions between such individuals,
or to any group of individuals in particular, for example, as in crude Marxist
thought, the bourgeoisie. For the relations between such groups and the in-
dividuals within them are made possible in the first place by the state.
A useful analogy, perhaps, is that of a game.6* Even those who set out to
invent a game will find, first, that the idea of playing a game, and then the details
of the particular game which results, have a status apart from their activity of
playing the game. For it is the game that makes that activity possible. The power
of the state can be monopolized no more than one could have a game where
one player had the power to make up the rules on the spur of the moment.
Political power can, then, never be power over the state since by definition it is
power won and exercised vnthin the state organization.67
Heller thus says that even the most autocratic kind of ruler, the most absolutist
of modern dictators, will find that, whatever his ambitions, not all power can be
united in his person. He will have to exercise that power through the state,
which means sharing it with his bureaucracy and all his other organs of rule.
And he will also have to count on the willing support of a certain number of
" SL at 325-39.
44
'Polhischc Demokratie und soziale Homogenitat*, first pub 1926, in Gtsammtbt Schriften, above n 1, vol 2,
421 at 426.
65
SL at 339-J9.
" Here I rely loosely on Hani-Georg Gadamer** exploration of 'Play as the due to ontological explanation';
see Gadamer, Thah and Mtthod (1981; trans of the German 2nd edn of 1965) at 91-108. Heller's argument for
something which has to be brought into existence and maintained as such by human activity, but whose existence
is ontologically prior in mat it makes it possible to engage in that activity, has, I believe, much in common with
this exploration, in particular, in Heller's application of the idea of organization to the topic of constitutionalism;
see SL at 385-95.
67
SLat351.
WINTER 1996 Hermann Heller and the Legitimacy ofLegality 655
organizations and groups if he is to secure the obedience that makes his rule
viable. Hence, Heller claims that Spinoza's maxim applies even to the rule of
such a ruler.68
Heller also maintains that law is the means any ruler must adopt in order
publicly to manifest his will. He approves an understanding of politics as the art
of 'transforming social tendencies into legal form'.69 And since the autocratic
ruler will, among other things, promulgate laws, it might seem that Heller cannot
withhold the title of Rechtsstaat, the state bound by the rule of law, from an
autocratic state. Nevertheless, he pours scorn on Kelsen's claim that every state
is a Rechtsstaat; this claim, he says, will be the 'best pacemaker for dictatorship'.70
Heller emphasizes that the necessity for a state-controlled social order is
something that is established prior to any particular conception of legal or
normative order. And for him the Rechtsstaat is a very particular form of legal
and normative order. What distinguishes the Rechtsstaat from absolutist forms
of state is that it exhibits a division of powers between legislature, executive, and
judiciary, which equips the bond between ruler and ruled with legal sanctions.71
And it is these sanctions which operationalize what Heller calls the 'polemical
principle' of democracy or of the sovereignty of the people. That principle is
that power in a democracy should go from bottom to top—all power resides in
the people. The Rechtsstaat institutionalizes that principle by requiring that law
be made by elected representatives, whose accountability to the people is legally
ensured, and that same law must be implemented and interpreted by officials
and judges who are similarly accountable to the law.72
That this principle is a polemical one has, I think, to be understood in two
respects. First, it opposes directly the autocratic principle which seeks, as far as
possible, to unite all power in the hands of the ruler. Secondly, it points to the
inevitable and sometimes very large gap in any Rechtsstaat between ideal and
reality. In this second respect, the importance of its being seen as a polemical
principle is that the fact that it is institutionalized should require a constant
attempt to narrow the gap under the impulse of interpretations of the principle.
It is this idea of the institutionalization of a polemical principle of people's
sovereignty that distinguishes Heller from democratic statutory positivism. For,
as I shall now show, its institutionalization goes beyond the positivist requirement
of judicial fidelity to statutes. It also requires democratic accountability ensured
by what I shall call the democratization of reason.

5 The Democratization of Reason


On Heller's view, as soon as absolutist or autocratic rulers became at all subject
to the law, so that they could no longer be said to be entirely unconstrained by
°* 'Politische Demokratie', above n 64 at 426.
K
SLat313.
70
'Europa und der Fascismus', fim pub 1931, in Oaammtkt Sdtriftm, above n 1, vol 2, 463 at 529.
" 'Politische Demokntie', above n 64 at 426; SL at 359-61.
12
Ibid.
656 Oxford Journal ofLegal Studies VOL. 16
law, the mechanism is in place which can be developed into the legal apparatus
of the Rechtsstaat. In such a situation, rulers must be able to justify their actions
by referring to some legal warrant and that is the beginning of what one might
think of as political, even democratic, accountability.
It makes sense to see this as the beginning of democratic accountability for
two connected reasons. First, the subjection of rulers to the law is part of
the historical development which includes the establishment of representative
assemblies with some role to play in legislation. Secondly, once the idea is
dislodged that the authority of rulers and their law is divine, rulers must find
some other mode of justification. Under the influence of thinkers like Bodin and
Hobbes, this results in the search for an immanent and rational justification for
political authority.73 Even if, as in Hobbes, the rational justification is one which
is for absolutist rule and hostile to democracy, what is important is its appeal to
the reason of its audience. Such an appeal sets in motion a process which makes
it difficult to resist what we can think of as the democratization of reason.
In this development, classical liberalism plays an important role. It both
relentlessly requires the subjection of political power to the law enacted by a
representative assembly and it tries to halt the democratization of reason by
setting the limits of reason in the class of those who possess both property and
education.74 But because these limits are out of step with the idea of individual
equality, liberalism cannot stop this process culminating in the Rousseauian idea
that the will of the actual majority must be endorsed, rationally speaking, as the
will of each.
And this process is not just a matter of formally extending the franchise until
it is universally held. The idea that political power must appeal to the reason of
each individual is generally founded in some conception of the equality of each
individual reasoner. And this foundation leads to social division rather than co-
operation in the face of large discrepancies in social and material equality. Heller
is not the kind of liberal who believes that liberalism must compromise with the
principle of people's sovereignty if it is to survive. He is first and foremost a
social democrat who believes that the individual rights discovered by liberalism
must be an integral part of social democracy. If the process of the democratization
of reason is to avoid self-destructing, it must turn the formal Rechtsstaat of
liberalism into the material or social Rechtsstaat. This is a state which strives to
attain a degree of 'social homogeneity' for all the citizens of a particular state.7'
It is only when such a degree of social homogeneity is achieved, argues Heller,
that one has in place the basis for governing society through the institutions of
democratic parliamentarianism. What makes parliamentary debate the ap-
propriate way of deciding on the content of legislation is not the liberal belief
that rational debate, by which liberals mean debate between liberals, produces

" SL at 108-9.
u
As I shall suggest below, this holding attempt has its echo in contemporary political philosophy as liberal
thinkers such as Rawls and Dworkin seek to have liberal political philosophy determine the limits of reason.
75
'Polrtijche Demokritie', above n 64.
WINTER 1996 Hermann Heller and the Legitimacy of Legality 657
truth. It is the social basis of the debate which makes it possible for the debate
to reach a highly contested but legitimate conclusion. Heller argues against
Rousseau that what makes the conclusion legitimate is not any fiction that the
will of each has been rationally transsubstantiated into one identical with that
of the majority. Rather it is that while a majority asserts its view, those who have
lost still think that they have had fair play.76
Further, this is a debate between the representatives of citizens who are not
the passive legal subjects of liberal thought, subjects who require of the state
only that it provides them with secure and stable legal boundaries to their private
lives. Citizens, for Heller, are those who 'themselves arrange their social and
political order' at the same time as they live with the order that is in fact
produced.77
Thus far I have sketched two different aspects of the democratization of reason
detected by Heller. The first culminates in universal franchise. The second
requires attention to social inequality as an impediment to what can be taken as
the rationale for the process of democratization—the vision of the citizen as
author of his or her social and political order. These two aspects are given
expression in the legal order of the Rechtsstaat in a way which provides the basis
for Heller's claim about the legitimacy of legal order. In order to understand
this basis, one has to take into account yet another aspect of the democratization
of reason, what we can term its sociological aspect.
Recall that positivists recognize both that rulers will claim that their rule is
justified and that this claim must meet some recognition among the general
population if their rule is to be at all stable. But this is merely a sociological
phenomenon for positivists, by which they mean it has no bearing on the debate
about the nature of law. Indeed, positivists add to their theories of law the
observation that for any legal system to exist there must be sufficient compliance
with its laws to give it some degree of efficacy. But they then hasten to say that
since compliance can be produced just as well through threats and sanctions as
through the belief that a legal order is legitimate, the ethical justification of the
law need not figure in an account of its validity. Hence the positivists' focus on
the law's co-ordinatory function rather than on its role in bringing about co-
operation and their understanding of legitimacy as belief in legitimacy, which
may or may nor be widespread and may or may not be justified.78
Heller argues that the sociological basis for the legitimation of legal order has
to figure in an account of the validity of law. His central insight here is contained
76
Ibid at 4 2 7 .
77
'We call ritturu the individual* w h o themselves arrange their social and political order. Our respect for the
way o f life of citizenship is ever proportionate to the motives for this ordering. We may not refuse this respect to
the citizen w h o clearly sees the social and historical rtlatrwty o f i i m o i n and htw and nevertheless subjects h l w w l f
to them, bocauM he knows the h u m a n all too h u m a n nature of the c o m m o n life o f h u m a n beings.' See 'Burger
u n d Bourgeois', first p u b 1 9 3 2 , in Gaammdu Sckriftat, above n 1, v o l 2 , 6 2 5 at 6 2 8 .
71
Positivists w h o work within the Weberian problematic hold that if legal subjects believe the law to be legitimate,
then it is. Anglo-American positivists hold that whatever the belief in legitimacy, actual legitimacy depends o n
whether the law m e e t s criteria o f s o u n d morality. What they share is the claim that as far as the validity o f law is
concerned, all that c o u n t s for legitimacy, and then in a wholly extrinsic way, is belief in legitimacy.
658 Oxford Journal of Legal Studies VOL.16

in his claim that what might appear from above to rulers as an order that they
wish to issue through the legal system must appear from below as a norm if it
is to succeed. That is, it must appear from below as a sound standard of
conduct.7'
Now it might be a very limited audience for which the rulers' orders have the
quality of norms, the quality of being not mere demands for compliance backed
by sanctions but standards with which there should be compliance. But it matters
a great deal that there must be some public to which the law is addressed,
some public which believes that the law is legitimate. And the process of the
democratization of reason progressively enlarges that public until it includes all
those who are embraced in a universal franchise. The law has now to seem
justified to this universal public, one which will be often be deeply divided on
the issue with which the particular law deals.
Heller's view of the relationship between political dieory and practice commits
him to the position that this process will happen only if political struggles make
it happen. But he also wishes to emphasize that theory, in this case a theory
based on the equality of individual reasoners, opens up the conceptual space for
a certain practical course of action.80
Heller does not suppose that all particular laws are generally justified. Any
particular law will evince a range of motives for compliance, from endorsement
because it seems morally sound to compliance because of the fear of sanctions.81
But once the process of democratization is underway, it is important diat any
law must strive for as wide a legitimation as possible. And the legitimation must
be based on reasons which provide a sound basis for the claim of the legitimacy
of law which the rulers inevitably make. That is, the claim for ethical justification
must appeal to a basis which is not only sound but which is considered to be
sound by its audience.
The kind of basis makes a difference to the nature of law. In an era of
monarchical absolutism, or in a successful dictatorship, the basis for the legitimacy
the monarch or the dictator enjoys can plausibly be said to be 'belief in his
legitimacy'. Legal subjects believe either in the monarch's claim to rule by divine
grace or they believe in the dictator. But under democratic conditions, belief is
not the basis of legitimacy. Rather, belief amounts to a conclusion that the claim
of the law to be legitimate is justified by the reasonable basis of the claim.82
As I interpret Heller, this basis is not so much die basis of any particular law,
but the basis of the legal order as a whole. The issue is not so much for him
one about the legitimacy of law as about the legitimacy of legal order or legality.
And this shift in emphasis makes citizens with a right of resistance, and not the
passive legal subject, central to Heller's conception of legal order.

™ SL at 379.
m
SL at 154-5.
11
SL at 346-7.
See Beetham, Ltgasmanon of Pomr, above n 9, for extensive argument on the topic of legitimacy and belief.
WINTER 1996 Hermann Heller and the Legitimacy of Legality 659
6 The Citizen and the Right of Resistance
For Heller, the basis of legal order is in part a social one, the citizen's sense of
both the actual level of social equality reached and the commitment of the
society to social equality. It is in part a political one, the sense of whether or not
politics makes room for citizens to be authors of their own political and social
order, so that citizens are able to influence both legislation and law reform.
In the terms Heller uses to describe the citizen, this sense is one of the
contingency of the concrete order established by law. But it is a sense of
contingency far different than that captured by the disillusioned vocabulary of
disenchantment. It is contingent in that it is the result of politics, but of politics
conducted within democratic institutions and thus subject to change. This sense
of contingency, that is, requires the institutions of the democratic Rechtsstaat as
intrinsic elements of legal order. It requires, as I have already suggested, the
institution of the polemical principle of democracy. It is one which makes a
touchstone of the validity of law the democratic process of its production, its
implementation and execution through a system of the division of powers, and
its openness to reform in the light of citizens' experience of it.
Heller does not hold that this basis is a guarantee of the ethical justification
for particular laws, whether one or many of the laws of a legal order. The
guarantee of ethical justification cannot be given by institutions or constitutions,
but only by what he calls the individual 'legal conscience', which has an 'ethical
right of resistance' to laws it finds unjust.83
Heller regards it as a necessary paradox of the democratic Rechtsstaat that the
ethical right of resistance of the legal conscience is something which has weight
but no legal recognition. This is a crucial point for him in the Staaulehre, but
one most fraught with ambiguity.
As I understand his assertions on this point, that the right is of the legal
conscience tells us that it is an essential part of legal order. That the right is an
ethical and not legal one tells us that it, though an essential part of the legal
order, cannot be given legal expression in the sense of being asserted as part of
a defence in law. Note, however, that ethics and the law though contrasted here,
and in a sense in conflict, are not distinct in the clean way which a positivist
separation thesis asserts. For, as we will shortly see, in issue are the ethical
fundamental principles of law. As Heller says generally of such contrasts, ethics
and law are only 'relative antitheses'.84
The right of resistance cannot be given legal expression for the reason that
modern legal orders have to aim to maximize certainty, and certainty requires
that individuals not be given power to interpret the law for themselves or to
enforce it as they see fit. For the sake of certainty, the law cannot permit as an
answer to a charge of lawbreaking that the lawbreaker found the law ethically
repugnant. But, Heller is keen to emphasize, legal certainty is not a value in
" SL at 336-9.
14
SZ. at 371.
660 Oxford Journal of Legal Studies VOL.16
itself. It has value because that the law establishes a relatively stable and certain
framework for individual action is important for what he calls 'the individual as
an ethical personality'.85
But, on Heller's view, it is equally important to the individual as an ethical
personality that the law which establishes that framework does not lead to the
'disintegration' of what he calls the individual's 'state-formative power'.8* By
this, he means the rights of citizenship as well as the right to determine the good
for oneself.87
For Heller, the ideas of individual freedom and plan, by which he means state-
established legal order, are, like the ideas of ethics and law, only 'relative
antitheses'.88 In other words, individual freedom is possible only under the rule
of law. But individual freedom means more than what we can think of as the
rights of private autonomy—the traditional liberal rights of the individual to
determine his or her own good for herself.89 Individual freedom includes the
rights of public autonomy—the rights of the citizen, acting in concert with other
citizens, to determine the content of the law under which all individuals are to
exercise their freedom. The law must make both kinds of freedom possible, since
both are aspects of one's ethical personality.
We can, therefore, explain Heller's view on the legitimacy of law as follows.
It is only if the law aims at realizing ethical personality that it can be said to' be
justified or to have authority. When it does so aim, the way in which its aims
are concretized in the law has moral weight for the citizen who understands the
duties of citizenship. But he or she must also keep in mind that it is part of the
duties of citizenship to evaluate the concretized or positive law against an
understanding of the ideal which the state should be serving. And if there is a
wide discrepancy between ethical ideal and actuality he or she is faced with what
Heller terms a tragic conflict of duties.
This conflict is the 'necessary and untranscendable conflict between legality
and legal certainty'. It is necessary because within a 'vital' citizenry 'complete
agreement can never rule over the content and application of valid fundamental
legal principles'. It is untranscendable 'because both the state and the individual
are alive only in the relationship of tension in which positive law and the legal
conscience find themselves'.90
The conflict is, then, inevitable within legal order and yet unsolvable by legal
order. And it arises from the same source—it is a conflict within the legal
conscience of the citizen. That Heller calls it a tragic conflict must stem, I
15
SL at 336.
"Ibid.
87
So much U clear from the text to which he refers in a footnote—H. J. Laski, A Grammar of Politics (1925)
96. In the next two paragraphs, I bale my elaboration of Heller's point about state-formative power in part on
Laslri's text.
** SL at 389. For the importance of the idea of planning among Heller's generation of democratic socialists,
see D. White, Lost Comrades: Socialists ojtiu Front Generation, 1915-1945 (1992).
" Compare Habermas, above n 26, ch 3. In 'Legality and Legitimacy1, above n 26,1 argue that Heller's account
of these issues is in many respects superior to Habermas's. I also trace there some significant similarities between
Heller and Fuller.
K
SL at 336.
WINTER 1996 Hermann Heller and the Legitimacy ofLegality 661
believe, from the combination of these features of inevitability and source. That
is, what makes it tragic is that in the democratic Rechtsstaat citizens must accord
moral weight to the law even when they strongly disagree with it, because they
must see themselves as authors as well as subjects of the law."
The gap between ethics and the law which this conflict reveals is not the gap
of the positivist separation thesis which presupposes that ethical or moral validity
and legal validity attach to different realms of value. Rather, it is the gap between
the ideal and the actuality of law which are in complementary relationship with
each other. The gap opens up because 'all realization of law remains imprisoned
by the demonic element of power'.92
It is important to see that for Heller this conflict inheres in the structure of
the Rechtsstaat. But, as I shall now show, it does not thereby speak against the
coherence of the Rechtsstaat.

7 Ethical Fundamental Principles of Law


The coherence of the Rechtsstaat, its aspiration to be a gapless and contradiction
free system of laws, lies at the heart of what Heller calls juristic dogmatics—the
interpretation of the law within particular fields on the assumption that the law
forms a seamless whole. But that assumption is best seen, as I have suggested,
as an aspiration. Heller is clear that coherence is an ideal which one can approach
by successive approximations, but never in fact reach.93
It is also important to see that for Heller coherence is not just coherence of
positive laws with each other, but with the fundamental ethical principles of law.
Positive law can and will violate these principles, thus establishing conflict within
the law.94 The conflict on which he focuses between the ideal and the actuality
of law arises when and only when it is meaningful to speak of the duties of
democratic citizenship. To the extent that one can see the beginnings of political
and hence democratic accountability in the subjection of the ruler to law, it
makes sense to attach some moral weight to law even when it is unjust.95 But it
is only in the democratic Rechtsstaat, where the law must perforce aim at justice
in a way recognizable by its citizens, even if it falls far short in the opinion of
some or many of them, that the conflict becomes a tragic one.
However, despite this emphasis on the tragedy of the conflict, Heller does
not wish to overdramatize it. For by its nature, the democratic Rechtsstaat is

" Compart Fuller, above n41 at 656.


" SL at 338.
n
SL at 380-1.
M
Heller, Dit Souverthtttdv Ein Baxrag atr Thtorit da Staaa- und VSUuntcka, first pub 1927, in Gaammtlu
Schrifun, vol 2, tt 197-8, 201-2.
" 'Even where beyond the reach of legitimacy nothing other than the technical legal form of the process ii
maintained, the naked legal form of unjust law creates certain constraints on power, certain limits on arbitrariness,
and a certain protection for the norm subjects, in that the form compels the observance of certain of the most
universal fundamental principles of law and principles of interpretation. It therefore makes good sense even from
the standpoint of the one who is thereby burdened, when he fights for the observation of an unjust law or an
unjust international treaty.' SL at 201-2.
662 Oxford Journal of Legal Studies VOL.16

distinguished by its provision of legal means to reform laws which citizens regard
as unjust. The ethical right of resistance seems best understood as a condition
of the legitimacy of law, but one meant more to ensure that law is constandy
brought into line with its own ideal than to provoke actual resistance.
The right may be said to represent die ethical core of the polemical principle
of democracy. Against the different ways in which Schmitt and Kelsen develop
Hobbes's thesis diat audiority, meaning political power, and not moral or ethical
truth is the mark of law, it seeks to reinstate the natural law idea diat moral
soundness is a mark of law.M But what it borrows from Hobbes against the
metaphysics of die natural law tradition is the thought that justification is a
human and immanent matter.
This quality of moral soundness is the one recognized by citizens who maintain
dieir right to evaluate each and every law at the same time as showing themselves
prepared to obey die law up until the point where it overreaches die reasonable
limits of die legal conscience. But diat point will not involve mere disagreement
with the law. It is die ediical right of resistance of legal conscience—die citizen's
sense that the ediical aims of legal order are being subverted.
Such aims are expressed in die ediical fundamental principles of law. These
are principles which are suprapositive in die sense of being beyond positive law.
But they are not supracultural—diey are principles which formulate the values
embedded in our cultural practices which die Rechtsstaat institutionalizes.
In addition, their suprapositivity is not of die kind which Hobbes supposes.
Hobbes talks of 'die" laws of nature' as being beyond positive law.97 He also
supposes diat dieir content is inaccessible to reason. All that reason can settle
on is diat they should be given content by an audioritative source. Hence, dieir
content is widiin the absolute power of die political sovereign and die positive
law becomes an exhaustive guide to diat content.98 Hobbes is die founder of
more dian die legal positivism endorsed in different ways by Weber, Schmitt,
and Kelsen. He is also the founder of die moral positivism which informs the
Weberian problematic.99
hi Heller's vision, by contrast, the ediical fundamental principles of law are
presupposed by positive law in a dynamic way which makes die principles
accessible to reason. The principles are given content in die positive law by the
process of democratic reason and reason is die criterion by which diat content
is elaborated and evaluated. There have to be moments of audioritative in-
terpretation, debate stoppers where an exercise of political power is what ends
die debate.100 But each interpretation is audioritative only widiin the institutional
structure of die democratic Rechtsstaat.
* For Schmitt, see my 'Now the Machine Ruin IoelF, above n 23, and for Kelsen, see F. Gentile, 'Hobbes et
Kelsen. FJements pour une Lecture Croisee' (1982) 20 CaJatrs VSfndo Panto 379.
" Hobbes, above n22, ch26.
" Ibid.
91
For the term 'moral poshrvijt', see Hilary Putnam, 'Are Moral and Legal Vtlucl Made or Discovered?' (1995)
1 Lffal Theory 5 at 8, referring to an unpublished manuscript by Anat Bilctski.
Heller sometimes calls these 'authoritarian' moments in order to emphasize the provisional finality of these
moments. See, for example, SmmeramtU, above n94 at 201-2.
WINTER 1996 Hermann Heller and the Legitimacy of Legality 663
What then is the content of these principles? On Heller's view, this question
is wrongly posed if it is meant to elicit a list of timeless ethical or moral principles.
His answer to the request for examples of such principles is to point to the
requirement of equality before the law, and its different interpretations, to the
fundamental rights sections of written constitutions, to attempts in constitutions
to articulate distinctively ethical values which should inform, for example, family
life or the relationship between church and state, and to open-ended legal
formulations like 'reasonableness' and 'good faith'.101
The content of these principles cannot be given in the way the question seems
to require because content is to be found in the cultural practices of the
inhabitants of a particular state. The principles are those values which the culture
regards as constitutional values—as the legal foundation of social co-operation.
As such, they make up the stock of values which is the 'material constitution in
the narrow sense'. If there is a written constitution, it will, in so far as it is possible,
try to formulate the values of the material constitution in one document—a 'formal
constitution'. And this document may try to rank the values by putting some
on a list of basic rights out of the reach of simple parliamentary majorities.102
For Heller the distinction between the formal constitution and the material
constitution is not a hard and fast one, just as he thinks that the general distinction
between form and content in law is not hard and fast. But his thesis about form
and content is quite different from Kelsen's view that law simply provides the
form into which the powerful may pour any content they choose.
While Heller does not think that there is a list of timeless ethical or moral
fundamental principles of law, he also does not think that just any ideological
content can be injected into the law of a democratic Rechtsstaat. His position
seems altogether contemporary in that it aims to undermine the dichotomy
between moral absolutism and an 'anything goes' kind of relativism. While he
did not live to present this aim in detail, he clearly saw the democratic Rechtsstaat
as the institutional expression of this position.
For him, the Rechtsstaat is an organization or institutional structure which
seeks to realize the polemical principle of democracy. It seeks to make the
exercise of political power accountable to the people by requiring justification
of exercises of such power to them. Exercises of power which, for example,
trample on the rights of individuals or seek to escape the constraints of the legal
order of the democratic Rechtsstaat will violate the fundamental principles of law
foundational of the Rechtsstaat. For that reason, such violations of the law, even
if they are couched positivistically speaking in the correct legal form, fail to have
the authority of law. Heller is clear that the organs of state might have to act in
an emergency to uphold law, in the sense of ethical fundamental principles of
law, in the face of positive law. He is also clear that legal interpretation is to be
guided by more than the value of certainty whose interpretative assumption is
the dogmatic one that the legal order is a gap- and contradiction-free system of
101
SL at 369-71.
102
SL «t 385-95.
664 Oxford Journal of Legal Studies VOL.16

positive laws. It also has to be guided by the judicial and general juristic sense
of the ethical fundamental principles of law which those norms must aspire to
concretize.103

8 Conclusion
We have seen in this sketch of Heller's legal theory that Kelsen is his main target
for legal critique, while Schmitt's political existentialism is his main political
target. But Heller clearly did not think that these targets were distinct. As I have
shown, he thought that each exemplified a tendency which grew out of the same
problematic—what I have called here the Weberian problematic-
In seeing this, we can also see the solution to a puzzle which recent writing
on Weimar legal theory has uncovered. This is the puzzle of why Kelsenian legal
positivism should have attracted so much critical notice when the principal legal
positivists of Weimar were democratic statutory positivists.104 Why should Heller,
and for that matter Schmitt, have taken Kelsen's legal positivism to represent
the 'dominant theory* of law?
In my view, the answer has to do with Heller's and Schmitt's sense of the
liberalism's uneasy relationship with democracy. In their view, the positivist
understanding of legal order was first put together by Hobbes in order to serve
the individual values which are the inspiration of his Leviathan. Hobbes was an
anti-democrat. And so he merely placed his hope in the benevolence of the
absolutist rulers whose law should be taken by legal subjects as definitive of their
moral obligations.105
This set the terms for the relationship of legal positivism with substantive
political values. Politics and law are seen as two distinct spheres of value, but
this has the result of making law, positivistically conceived, the mere instrument
of political ideology. This dichotomy persists into the work of democratic statutory
positivists whose positivism is distinguished from Hobbes's only by their different
hopes for it. It also persists into the work of contemporary Anglo-American legal
positivists, despite their amendments to Austin's command theory of law which
are best explained as a response to the requirements of modern democracy.10*
Kelsen's Pure Theory has the advantage over both democratic statutory
positivism and Anglo-American legal positivism of fully recognizing the need for
a value basis for law internal to legal order. That is, Heller's focus on Kelsen
was justified because Kelsen alone found a value basis for a positivist theory of
law, one which attempted to be both internal to law and appropriate for
democracy.107
103
ib.d.
104
Set Paulson, above n 4 0 , and CaldweU, above n41.
105
I explore Hobbes's relationship to Anglo-American legal positivism in 'Law and Public Reason' (1993) 38
McGiU LJ 3 6 6 .
106
S e e , for e x a m p l e , t h e d i s c u s s i o n in R o g e r C o t t e r r d l , 77w Politics of Juruprudma: A Critical Introduction tt>
Legal Pttoiophy (1989), ch4 at 99-100. I explore this issue in T h e Legality of Legitimacy', above n26.
Kdsen would of course have denied that there was any intrinsic link between the Pure Theory of law and
tus understanding of democracy. For argument on this issue, see Truth i Revengt, above n 34.
WINTER 1996 Hermann Heller and the Legitimacy of Legality 665
However, because Kelsen worked within the Weberian problematic he could
not make the connection with democracy overt. As we might say with the recent
Rawls, the value basis he found is 'freestanding'. It is, of course, freestanding in
a different way than Rawls's conception of political values that together make
up an 'overlapping consensus' about the basics of political and legal order.108
For Rawls, these values are substantive but they stand free of comprehensive
positions or individual conceptions of the good life. While such positions perforce
claim truth for themselves if they enter the space of public reason or constitutional
discourse, the values which constitute that space claim only reasonableness. But
the claim to reasonableness is far from modest, since it operates to exclude the
truth claims of comprehensive positions from the public, and requires them to
contest each other only within the space of the social. Rawls, like Hobbes, wants
to prevent the 'wormes' of the social from eating into the 'entrayles' of the
State.109
Kelsen, by contrast, makes no distinction between the public and the social.
Indeed, his Pure Theory of law can be understood as showing just how pervious
the public, here identified with the order which law establishes, is (and should
be) to the social.
Rawls and Kelsen can be seen as exemplifying two moments of a tension
within the liberal idea of law which Schmitt wishes to highlight. The rule of law
is said by liberals to have the virtue of leaving it to, and making it possible for,
individuals to lead their lives as they see fit. But it appears on Kelsen's positivist
conception that laws with any content can fit the criteria for the validity of law
which positivists propose. Liberals may try to deal with this problem as do Rawls
and Ronald Dworkin, that is, by proposing criteria of validity which have more
(liberal) substance to them. But then they must also insist that these values place
a priori limits on democratic legislation, which means that they expose a tension
between liberalism and democracy.
Heller's profound and enduring contribution to legal philosophy in this century
is to have sketched a theory of law and state which attempts to make sense of
law as a democratic enterprise. Heller, like the other socialists of the 'Front
Generation', was a romantic.110 His romanticism took the form of placing a great
deal of hope in law's potential for creating and sustaining a democracy. But his
was a hard-headed romanticism. He emphasized frequently that law could play
such a role only if there was the human will and energy available to develop
what he took to be law's democratic potential. He knew all too well that a full-
fledged democracy might at times render political and social life deeply fraught
and ambiguous. And that knowledge, I believe, led him to place a highly

lra
Rawls, above n 5 9 .
109
Hobbet, above n22, ch29 at 374-5. I diicuis this issue further in Tjberaliim After the Fall* (1996)
Philosophy and Social Criticism.
110
See White, above n 88.
666 Oxford Journal of Legal Studies VOL.16

ambiguous ethical right of legal resistance of the citizen at the centre of his
philosophy of law. And it makes sense, for Heller, to preserve the ambiguity of
the right of resistance just because the democratic citizen unites in herself the
duties that attach to being both author and addressee of the law.