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Ratio Juris. Vol. 28 No. 4 December 2015 (441-51)

Legal Certainty and Correctness

ROBERT ALEXY*

Abstract. What is the relation between legal certainty and correctness? This ques-
tion poses one of the perpetual problems of the theory and practice of law-and for
this reason: The answer turns on the main question in legal philosophy, the
question of the concept and the nature of law. Thus, in an initial step, I will briefly
look at the concept and the nature of law. In a second step, I will attempt to explain
what the concept and the nature of law, thus understood, imply for the relation
between legal certainty and correctness. Here three issues will be considered: first,
the Radbruch formula as an answer to the problem of extreme injustice; second, the
special case thesis, which claims that legal argumentation is a special case of
general practical argumentation; and, third, the problem of the judicial develop-
ment of the law.

1. The Dual Nature of Law

My main thesis on the relation between legal certainty and correctness is that both
legal certainty and correctness are principles, and that a tension exists between
these two principles, a tension that gives expression to the dual nature of law. The
dual nature thesis says that law necessarily comprises both a real or factual
dimension and an ideal dimension (Alexy 2010a, 167). The factual side is repre-
sented by the defining elements of authoritative issuance and social efficacy,
whereas the ideal side finds its expression in the element of correctness of content
(Alexy 2002a, 13). The principle of legal certainty requires that the norms of a legal
system be as determinate as possible and that they be observed to the maximum
degree possible. These objectives cannot be realized, however, apart from issuance
and efficacy. Thus, there exists an intrinsic connection between the principle of legal
certainty and positivity And positivity, for its part, is defined in terms of issuance
and efficacy, taken together. The principle of correctness, on the other hand,
requires that the content of law be correct. The correctness of content concerns,
above all, justice, for justice is nothing other than correctness with respect to
distribution and balance (Alexy 1997a, 105), and distribution and balance present
the central concern of law. Questions of justice, however, are moral questions. For
this reason, it is possible to speak of moral correctness or, simply, of justice instead
of correctness of content. As soon as moral correctness or justice are added to

* I should like to thank Stanley L. Paulson for suggestions and advice on matters of English
style.

© 2015 The Author. Ratio Juris © 2015 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main
Street, Malden 02148, USA.
442 Robert Alexy

authoritative issuance and social efficacy as a third necessary element of the

concept of law, the picture changes fundamentally. A non-positivistic concept of law
emerges. Thus, the tension between legal certainty and correctness, as an integral
part of the dual nature thesis, is an expression of a non-positivistic concept of law.
The connection of the real dimension, defined by authoritative issuance and
social efficacy, with the ideal dimension, defined by correctness of content, above
all, by justice, is established by the claim to correctness necessarily raised by law.
The "claim thesis" has been thoroughly expounded and defended elsewhere
against a variety of objections (Alexy 1997b; 2000; 2002a, 35-9; Bulygin 1993, 19-24;
2000), and there is no need to repeat these replies here. Instead, I shall turn directly
to the principles of correctness of content and legal certainty.

2. The Principle of Correctness of Content

Against the principle of correctness of content or substantive correctness, the
objection might be raised that it refers to something that does not exist. The
correctness of content concerns the question of what is commanded, prohibited,
and permitted apart from norms issued in the positive law. This is to say that it
concerns practical questions. Practical questions, however, so the objection, are,
apart from the maximization of utility, not decidable in a rational way. For this
reason, the principle of correctness of content is the expression of an illusion.
Correctness presupposes justifiability. Moral norms that give answers to practical
questions are, however, not justifiable.
Such a fundamental denial of the justifiability of moral norms can be character-
ized as "radical scepticism." Radical scepticism has its roots in forms of emotivism,
decisionism, subjectivism, relativism, naturalism, or deconstructivism. My reply to
radical scepticism is discourse theory. Discourse theory claims that it is possible to
avoid the alternative, as Paul Ricoeur puts it, of "provableness or arbitrariness"
(Ricoeur 1994, 378; my translation). Provableness poses too high a demand in
connection with practical questions. If arbitrariness were the only alternative, the
irrationality objection of radical scepticism would be well founded. But there exists,
between provableness and arbitrariness, a third way, namely, reasonableness. One
who submits his moral judgments to rational argumentation is reasonable. Thus,
everything depends on the question of whether rational argumentation is possible
in the field of morality.
I have attempted to define the concept of rational practical argumentation by
means of a system of twenty-eight rules and forms of general practical discourse.
This system comprises rules that demand non-contradiction, universalizabilty qua
consistent use of predicates, clarity of language, reliability of empirical premises, as
well as rules and forms that speak to the consequences, balancing, exchange of
roles, the genesis of moral convictions, and freedom and equality in discourse
(Alexy 1989, 188-206). It is a central assumption of discourse theory that agreement
in discourse, first, depends on argument, and that, second, a necessary relation
exists between universal agreement under ideal conditions on the one hand and
correctness or moral validity on the other. This connection can be expressed as
follows.
Correct and therefore valid are exactly those norms that in an ideal discourse
would be judged correct by everyone.

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 Legal Certainty and Correctness 443

Discourse theory is confronted with a number of problems (Alexy 1988). Here

only the problem of applicability or practicability will be of interest. From the point
of view of practicability the main weakness of discourse theory is that its system
of rules does not establish a procedure that makes it possible for one always to
arrive, in a finite number of steps-that is, in real discourses-at just one result.
Ideal discourses, however, are not realizable. The ideal discourse as an element of
the criterion of correctness is, therefore, not more than a regulative idea. Never-
theless, this idea is not only always present in real discourses; it is also possible that
real discourses approximate ideal discourse (Alexy 2009, 157-8). To be sure, this
connection of the real discourse with the ideal discourse can remove the indefi-
niteness of result only to a rather limited degree. There are, indeed, things that are
not conceivable as results where a sufficient and generally possible approximation
to the ideal discourse is concerned. Slavery is an example. The status of a slave can,
therefore, be classified as "discursively impossible" (Alexy 1989, 207). Other things
are "discursively necessary." Human rights and democracy are examples (Alexy
1996, 222-35). In numerous cases, however, at the end of discourse, incompatible
results can be held without violating the rules of discourse. Owing to their
compatibility with the rules of discourse, these competing opinions can be char-
acterized as "discursively possible." Discursively possible disagreement is,
however, "reasonable disagreement" (Rawls 1993, 55). Here, discourse theory meets
a border that it cannot by itself pass. One might call this the "problem of
knowledge."

3. The Principle of Legal Certainty

The problem of knowledge means that the ideal dimension, defined by discourse
and moral correctness, does not suffice as such to solve the problems of social
coordination and cooperation. As a second problem, the problem of enforcement
arises. The problem of enforcement inevitably enters the picture, for the mere
insight into the correctness of a norm does not guarantee its observance. But if
some individuals can violate a norm without incurring any risk, then its observance
cannot be expected of anyone. This leads to the necessity of the connection of law
and coercion as a decisive element of social efficacy (Alexy 2008a, 293). The
problem of knowledge and the problem of enforcement must both be resolved lest
the costs of anarchy not be avoided. To avoid these costs, however, is not only a
requirement of prudence but also a demand of morality. Thus, it is morality itself
that, owing to its weaknesses, calls for the validity of the principle of legal certainty.
The central requirements of this principle are, as Gustav Radbruch puts it, "the
ability to identify the subject matter as a legal norm," on the one hand, and "the
certain enforcement of what is identified as law," on the other (Radbruch 1990, 45;
my translation). Certain identification and certain enforcement are, however, not
possible without positivity. Radbruch clothes this idea, already clearly expressed by
Kant,' in the formulation "that all of what is called positive law stems from the

' Kant 1996, 356: "So, unless it wants to renounce any concepts of right, the first thing it has
to resolve upon is the principle that it must leave the state of nature, in which each follows
its own judgment, unite itself with all others (with which it cannot avoid interacting), subject
itself to a public lawful external coercion, and so enter into a condition in which what is to

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444 Robert Alexy

requirement of legal certainty" (Radbruch 1990, 50; my translation). Thus, legal

certainty becomes the ground of positivity.

4. Second-Order Correctness
One might assume that the necessity of positivity, required by the principle of legal
certainty, implies positivism. This, however, would be incompatible with the claim
to correctness. To be sure, the necessity of positivity implies the correctness of
positivity. But the correctness of positivity does not have by any means an exclusive
character. To grant to positivity an exclusive character would be tantamount to
eliminating the claim to correctness of content-to eliminating, in other words, the
claim to justice. This claim must, however, remain alive, for it is necessarily
connected with law. For this reason, one has to distinguish two stages or levels of
correctness: first-order correctness and second-order correctness. First-order cor-
rectness refers only to the ideal dimension. It concerns justice as such. Second-order
correctness is more comprehensive. It refers both to the ideal and to the real
dimension. This is to say that it concerns justice as well as legal certainty. Legal
certainty, however, can be achieved only by means of positivity. In this way, the
claim to correctness, qua second-order claim, necessarily connects both the principle
of justice and the principle of legal certainty with law.
The principle of legal certainty is a formal principle. It requires a commitment to
what is authoritatively issued and socially efficacious. By contrast, the principle of
justice is a material or substantive principle. It requires that the decision be morally
correct. Both principles, as with principles generally (Alexy 2002b, 44-110), may
collide, and they often do so. Radbruch (1990, 50) aptly speaks of a "lively tension."
Unlike what Kelsen claims for his "principle of positivity" (Kelsen 1945, 402;
translation altered),2 neither can ever supplant the other completely, that is, in all
cases. On the contrary, the dual nature of law demands that these principles be seen
in correct proportion. Thus, second-order correctness is a matter of balancing. This
shows that balancing has a role to play not only in legal practice, but also at the
very core of law. It is part of the nature of law.
The tension between legal certainty and substantive correctness appears every-
where in the legal system. Three aspects will be taken up here: the question of an
outermost border of law, the problem of legal argumentation, and the question of
whether the principle of correctness leads to an intolerable degree of judicial
activism.

5. An Outermost Border of Law

The dispute about an outermost border of law concerns the question of whether, as
Kelsen (1967, 198) maintains, "any kind of content might be law," or whether, as the
Radbruch formula says (Radbruch 2006, 7), not every injustice but, to be sure,

be recognized as belonging to it is determined by law and is allotted to it by adequate power

(not its own but an external power)."
2 The basic norm has to establish law as "a meaningful order," but not as "a just" order (ibid.,
emphasis in the German text). "Even the least contradictory legal order and the most perfect
realization of the formal idea of equality may constitute a condition of supreme injustice"
(ibid., 441).

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 Legal Certainty and Correctness 445

extreme injustice is not law (Alexy 2008b, 427-8).' It is not possible to enter into this
debate here. The only point of interest is this. How is the threshold of extreme
injustice related to the principles of legal certainty and substantive correctness or
justice, and does this relation count as an argument for engaging both legal
certainty and justice instead of referring exclusively to legal certainty? The answer
begins with the thesis that this relation is determined by the two basic laws of
balancing, the law of competing principles and the law of balancing.
The law of competing principles says, using the preference operator P,

If principle P1 takes precedence over principle P2 in circumstances C: (P1 PP2) C, and if P1 gives
rise to legal consequences Q in circumstances C, then a valid rule applies which has C as its
protasis and Q as its apodosis: C -- Q. (Alexy 2002b, 54)

P1 shall represent the principle of legal certainty, P2 the principle of justice. The
condition of preference C is used in two interpretations. C, stands for "injustice
below the threshold of extreme injustice," C 2 for "extreme injustice." According to
the Radbruch formula, legal certainty, P1 , takes precedence over justice, P2, under
the condition C1 , that is, in case of injustice below the threshold of extreme injustice:

(1) (P1PP2 )C1

Under the condition C 2 , that is, in a case of extreme injustice, then, according to the
Radbruch formula, justice, P2, takes precedence over legal certainty, Pi:

(2) (P2 PP)C2

The principle of legal certainty, P1 , taken alone, requires that the norm in question
be valid, that is, that the norm to which Q refers be a legal norm. The principle of
justice, P2, requires, again taken alone, that the norm in question not be valid, that
is, that it not be law, which can be expressed by -Q. Thus, (1), according to the law
of competing principles, implies the rule

(1') c Q,

which, owing to the conditional precedence of legal certainty, orders the validity of
the incorrect norm, and (2) implies the rule

(2') C 2 -* -Q,

which, owing to the conditional precedence of justice in a case of extreme injustice,

orders the invalidity of the incorrect norm. There is no doubt that the latter means
a loss of legal certainty. This loss, however, is immediately mitigated by the fact that

An explicit rejection of the idea underlying the Radbruch formula is to be found in Kelsen
1992, 36: The "Pure Theory of Law prevents misuse of the discrepancy between some
presupposed absolute value of justice and the positive law, prevents its misuse as a legal
argument against the validity of the positive law."

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446 Robert Alexy

the judicial decision introduces a new rule providing for legal certainty in the
future.
All of this, however, is acceptable only if the rule that extreme injustice is not law
is, first, justifiable and, second, applicable in a rational way. Numerous arguments
can be adduced for its justification (Alexy 2002a, 40-62). Here only the justification
according to the law of balancing is of interest. The law of balancing reads as
follows:

The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must
be the importance of satisfying the other. (Alexy 2002b, 102)

This law of balancing can be developed further by means of the weight formula
(Alexy 2007, 25), but this will not be taken up here.
Following the defeat of National Socialism, as well as after the collapse of the
German Democratic Republic, German courts declared norms of these systems,
issued before 1945 and before 1989 respectively, to be invalid from the beginning,
that is, null and void (Alexy 2008b, 428-32). With this development, the courts
accepted a compromise where the principle of legal certainty (P1 ) is concerned.
According to the law of balancing, what matters is, on the one hand, how great this
compromise is, and, on the other hand, how great the importance of satisfying the
principle of justice (P2) is. An example is the bank deposit decision of the Great
Panel of the German Federal Court of Justice for Civil Matters. This decision
concerns the question of whether a Jewish woman who emigrated had lost, on the
basis of Section 3 of the Eleventh Ordinance, 25 November 1941, issued pursuant
to the Statute on Reich Citizenship, securities left in a bank deposit of a German
bank. The Great Panel declared Section 3 of the Eleventh Ordinance, which
provided the devolution of such property to the Reich, as "void from the outset."
Because only extreme injustice, and not every instance of injustice, leads to
invalidity, the interference with the principle of legal certainty (P) can be described
as relatively light. In contrast to this, the interference with the principle of justice
(P2) would be very serious if the Jewish woman, expropriated for reasons that were
"racial" in nature, were not to get her property back. Therefore, the law of
balancing requires that the case be decided according to the rule: Extreme injustice
is not law (C 2 -> _Q). Thus, the relation of the threshold of extreme injustice to the
principles of legal certainty and justice speaks for engaging both principles instead
of referring exclusively to legal certainty. Referring exclusively to legal certainty
would imply the rejection of the Radbruch formula. Engaging both principles leads,
according to the law of competing principles and the law of balancing, to this
formula.
It might be objected that cases like the bank deposit case are so unusual that a
generalization is impossible. Thus, one can argue about the question of whether the
killing of fugitives on what had been the border between the German states counts
as extreme injustice. The reply is that the mere fact that the subsumption of a case
under a norm is contested is not an argument against the norm. Otherwise, one
would have to forgo nearly every norm, for hard cases can appear with any and
every norm for reasons of ambiguity, vagueness, or evaluative indeterminacy

4 BGHZ 16 1955, 354; my translation.

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 Legal Certainty and Correctness 447

Rather, the decisive point is whether rational arguments for and against a sub-
sumption under the concept of extreme injustice are possible. This is the case, but
it cannot be elaborated here (Alexy 1993, 29-30).

6. The Special Case Thesis

The Radbruch formula concerns the exceptional situation that arises after the
breakdown of a rogue regime. Leaving this situation aside, I want now to turn to
everyday life in the application of law. Again, the question is whether an interplay
of the principle of legal certainty with the principle of justice leads to a better
solution than if one appealed solely to the principle of legal certainty.
In the discussion of the principle of the correctness of content or substantive
correctness, the weaknesses of this principle played a pivotal role. They are
manifest in the limits of the practical application of discourse theory, which leads
to the problems of knowledge and of enforcement. Now there exist weaknesses of
the principle of legal certainty, too. They stem from what Hart (1994, 128) has
described as the "open texture" of law and Kelsen (1967, 349-50) as the character
of law qua frame that has to be filled by the law-applying act. There exist several
reasons for this necessary openness of law. Of special importance are, on the one
hand, the vagueness of the language of law, the possibility of conflicts between
norms, the lack of norms on which a decision can be based, and the discrepancy
between the wording of a norm and the intentions of the lawmaker, and, on the
other hand, the "multifariousness of life."' The principle of legal certainty demands
from the lawmaker that the openness of law be kept to as minimal a degree as is
possible. This demand, however, can always only be fulfilled incompletely.
Decisions that fall within the open sphere of positive law cannot, by definition,
be made on grounds of positive law, for if a decision could be made on the basis
of positive law, it would not fall within the open sphere of positive law. Legal
positivists such as Kelsen and Hart are therefore simply following this logic when
they contend that within the open sphere the judge is empowered to create new
law on bases other than legal standards, and this according to his own discretion,
much in the fashion of a legislator (Hart 1994, 135; Kelsen 1967, 353-5). Kelsen
emphasizes that this discretion is a "free discretion" (Kelsen 1967, 349; translation
altered), and he stresses that all possibilities within the open sphere of positive law
are "of equal value" (ibid., 351). The latter might be called the "equal value thesis."
According to Kelsen (ibid.), the situation we face here could not be different, for the
determination of the frame alone is properly deemed a matter of interpretation qua
cognition. In contrast, to fill in the frame is "a function of the will" (ibid., 353). If
one were to understand the filling in of the frame as cognition, one would thereby
succumb to what Kelsen designates as the "illusion of legal certainty" (Kelsen 1992,
84).
From the standpoint of a positivistic theory of law, Kelsen is right. The question
is whether this is also true if one turns to the non-positivistic theory of the dual
nature of law. It is a central thesis of the theory of the dual nature of law that
legal discourse is a special case of general practical discourse (Alexy 2009, 163).
Legal argumentation, like general practical argumentation, is, in the end, always

5 BVerfGE 126 2010, 195; my translation.

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448 Robert Alexy

concerned with the question of what is commanded, prohibited, and permitted,

that is, with practical questions. In general practical discourse as well as in legal
discourse a claim to correctness is raised. The special feature is that the claim to
correctness raised in legal discourse, in contrast to this claim in general practical
discourse, is not aimed at what is correct independently of the positive law, but at
what is correct within the framework of a certain legal system. What is correct in
a legal system essentially depends-as the concept of second-level or second-order
correctness makes explicit-on what has been authoritatively or institutionally laid
down and on what fits into the system. If one chose to put this into a short formula,
one could say that legal argumentation is committed to statute and precedent and
has to take into account the system of law elaborated by legal dogmatics. These
commitments are expressed by the specific rules and forms of legal discourse
(Alexy 1989, 300-2).
The question is whether the special case thesis has the power to undermine
Kelsen's thesis of free discretion. The answer shall be given by appeal to the
distinction of three models of legal decision-making: the decision model, the
cognition model, and the argumentation model. Kelsen's argument of the function
of the will is a clear expression of a decision model. The exercise of discretion
concerns exclusively an "act of will" (Kelsen 1967, 354), that is, a decision. Kelsen
couples the decision model with the cognition model. In doing so, he restricts the
possibilities of legal cognition, emphasizing the cognition of the frame established
by positive law. This concerns, first and foremost, the cognition of the "possible
meanings of a legal norm" (ibid., 355). A cognition model that claims to be able
"always [to] supply only one correct decision" (ibid., 351) is rejected by Kelsen, so
to speak, anticipating Ronald Dworkin's more recent one-right-answer thesis
(Dworkin 1977, 61). According to Kelsen, the decision model and the cognition
model exhaust the possibilities. This is precisely the mistake. There exists a third
model, the argumentation model. The special case thesis corresponds to this third
model.
It might be objected that the argumentation model is a mere illusion. The
weaknesses of discourse theory have led, as pointed out above, to the necessity of
positive law. And now the theory the weaknesses of which are supposed to have
been cured by positive law enters the scene again and cures the weaknesses of
positive law? This, so the objection goes, is not possible. Against this view, two
arguments can be presented.
The first argument claims that from the weaknesses of discourse theory it does
not follow that it is unable to achieve anything at all. To be sure, its power does
not suffice to take the place of a legal system. Within the framework of a legal
system, however, it can, qua special case thesis, find a thorough application. This,
of course, presupposes that good and bad arguments in the open sphere of positive
law can be distinguished. This may not always be the case, but in many cases it is
possible, and this for the reason that the connection of the rules and forms of
general practical discourse with those of legal discourse offers criteria for the
distinction between good and bad justifications in law. With this, a decisive element
in Kelsen's decision model, the equal value thesis, collapses.
The first argument concerns legal argumentation in general. The second argu-
ment takes a look at the democratic constitutional state, which is a postulate of the
dual nature thesis, too (Alexy 2010a, 177-8). It is a necessary and essential element

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 Legal Certainty and Correctness 449

of the democratic constitutional state that constitutional rights in it are valid, rights
that have a radiating effect on the entire legal system, that is to say, rights that have
to be taken into account in the application of all statutes and other regulations
(Alexy 2002b, 351-65). This implies that the open sphere of positive law below the
level of the constitution is by no means empty. Thus, the special case thesis as a
general argumentation-theoretic thesis is joined with the theory of constitutional
rights in the form of principles theory The consideration of constitutional rights in
the interpretation and application of the law requires balancing according to the
rules of proportionality. Balancing, a motif that cannot be elaborated here (Alexy
2010b, 27-32), is a form of rational argumentation. With that, it is again argumen-
tation and the claim to correctness connected with it that are decisive. Naturally,
here, too, there exist uncertainties and there exists, above all, discretion (Alexy
2002c, 15-30). But this does not alter the fact that Kelsen's equal value thesis has
to be restricted even further. It would be possible to go more deeply into all of this.
But what has already been said suffices to show that the special case thesis in
connection with the principles theory of constitutional rights is able to suppress
arbitrariness in the open sphere of positive law to such an extent that one can speak
of clear gains for legal certainty In this way, the connection of legal certainty with,
as such, the competing principle of correctness leads to more legal certainty than
the principle of legal certainty alone. Kelsen's (1992, 84) thesis of the "illusion of
legal certainty" has to be rejected to the extent that the connection achieves this.
Legal certainty is not an illusion to the degree that correctness is not an illusion.

7. The Limits of Legal Argumentation

A final argument can be adduced by the proponents of pure legal certainty They
can maintain that the connection of legal certainty and correctness involves costs of
legal certainty that are not acceptable. Perhaps, they say, it might be possible to
increase legal certainty in the open sphere of positive law, that is, to realize gains
of legal certainty here. For this, however, a price has to be paid, namely, that the
connection serves partly to undermine legal certainty where the positive law is
determinate or clear. Decisions against the wording of statutes and the will of the
lawmaker would become possible. And with that, contra legem decisions would no
longer be excluded. The door would also be open to other forms of the judicial
development of law.' All this, however, would count as an intolerable loss of legal
certainty.
This argument would be cogent if the connection of legal certainty and correct-
ness entailed the result that those who have to apply the law are competent to
forbear from applying those statutes they conceive to be incorrect. This, however,
is by no means the result of the connection. Kelsen's (1992, 85) thesis, "Even the
statute that is bad in the view of the law-applying authority is to be applied,"
deserves, in principle, approval. The decisive point, as with the balancing of
principles in general, is the degree of interference with the principles involved, in
this case the principles of legal certainty and substantive correctness. A general
competence of the law-applying authorities to control the correctness of content
would interfere disproportionately with legal certainty. For this reason, a prima facie

6 On a distinction of four forms of the development of law, see Alexy 1995, 91.

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450 Robert Alexy

priority of the authoritative or institutional side is necessary. This applies to statutes

as well as to precedents. The dual nature thesis requires, however, that this
priority-with the exception of some areas like penal law, governed by the maxim
nulla poena sine lege-not be absolute. This would be incompatible with the
principle of substantive correctness. Again, as in the case of the Radbruch formula,
the issue is a matter of balancing and argument. This finds its expression in the
following rule on the burden of argument:

Arguments which give expression to a link with the actual words of the law, or the will of
the historical legislator, take precedence over other arguments, unless rational grounds can be
cited for granting precedence to the other arguments. (Alexy 1989, 248)

Naturally, it would be fine if a more precise rule could be formulated that solved
the problem of the development of law once and for all. But to require such a
solution would be to fail to appreciate the character of the relation between legal
certainty and correctness. In any case, the main outlines are recognizable, connect-
ing the Radbruch formula with the rule on the burden of argument just mentioned.
It is the idea of the overarching prima facie precedence of the authoritative or
institutional dimension, that is, the principle of legal certainty, over the principle of
correctness of content or justice.

Christian Albrechts University

Faculty of Law
Olshausenstrasse40
D-24118 Kiel
Germany
E-mail: alexy@law.uni-kiel.de

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