Legal ethics and legal politics

§ 1 Introduction

Rule of law = Rechtsstaatlichkeit

Dispute about legal methods – 19th/20th centuries

 Conceptual jurisprudence (Puchta, Winterscheid, Laband): law = close system  you can
make a certain logical decision with a special technique (subsumption)  had “enemies”:
o Free rights movement (Fuchs, Ehrlich)
 Law is not bound  law is free
 Book: the kingdom of judges  “Judges have the ultimate power”
 Book: free findings of the law
o Sociological jurisprudence (Ehrlich, Weber)
 Described, what lawyers really do  it’s not concept and about written law,
but the law, as is really unfolds in society
 We ask about the interests of the parties in private law
o Interests jurisprudence (Heck)
 Legal philosophy is a reflection about what lawyers do

Relevance and usefulness of Legal philosophy

 Orientation function
o Ability to orient yourself in your legal thinking
 Methodological function
 Bridge function
o Into different subjects
o International and interdisciplinary discipline
 Extrinsic and intrinsic value of Legal philosophy

Learning style

 Passive knowledge receiver

o Just listening
 Receptive knowledge receiver
o Listening and taking notes
 Interaction student/lecturer
o debate
 Active learner
o You engage with all different learning materials
 Independent learner
o Don’t follow the sequence

Law

 Dogmatic subjects
o Private law
o Criminal law
o Public law
 Foundational subjects
o Legal philosophy
 o Legal history
o Legal sociology

Legal philosophy, in the broad sense

 Theory of legal scholarship

 Theory of justice
 Legal theory
 Double status of legal philosophy
o Three dimensions:
 Critical-normative
 Analytical
 Holistic-synthetically

§ 2 Theory of Legal Scholarship

Clash of cultures

Möllers/Heinig – Debate  wrote a news article

 Guttenberg=Symptom for a deeply rotten system

o Guttenberg-Affair: plagiated his doctor-publication
 Assembly line production at the University chairs
 External PhD candidates
o You already have a job and work as a professional
 Plagiarism-friendly forms of publication (Commentaries, short textsbooks)
o Reactions:
 Practice-theory connects
 Implementing the law in force
 Short textbooks are only referential; commentaries are innovative
 Against “political science essays” from the Ivory tower
 Quantity instead of quality
 Lack of scientificity in the formation
 Focus only on dogmatics

What counts as good Legal Scholarship?

The concept of Legal Scholarship

 Believing sth vs knowing sth

 Developed over time
 Scholarship needs to be sth objective and correct = systematic and methodological
procedure to gain knowledge
 Research always goes on
 Scientia (= natural science)
o Methodical knowledge of beings from their principles
o Subject: the permanent, everlasting
 Prudentia
o Moral insight
o Deliberate choice of the good in concrete situations
 We have elements of Scientia and prudentia in our legal scholarship
History of concepts

 Legal definitions in the CIC

o Celsus, D1,1,1 pr: Ius est ars boni et aequi
o Ulpian, Inst. 1,1,1 = D 1,1, 10,2: Jurisprudentia est divinarum atque humanarum
rerum notitia, iusti atque iniusti scientia
 Older doctrinal definitions
o Middle of 17th century
o Ability to interpret laws correct and apply them wisely
 Recent doctrinal definitions
o Middle of 18 th cent.
o System of inside the positive law
 Today’s definitions
o Legal scholarship + legal science and practise
o in the broader sense: Legal scholarship = All legal disciplines taken together
 In the narrow sense: Only legal dogmatics

Legal dogmatics = legal theory of a positive law of the concrete legal system

 Concept of dogmatics
o Like a “tree” (conceptual tree)
 “state of the art knowledge”
 Dimensions of legal scholarship in the broad sense
o Dogmatics: Logical/analytical dimension
o Descriptive/empirical dimension: how law is deceived by the people
o Normative/practical dimension: ethical content in the legal system, justice, how can
get law more just/how can we improve the law (de lege lata vs de lege ferrenda)
 Scientific character of dogmatics

Hans Kelsen: “Pure Theory of Law”

 He wants to keep the law pure

 Founder of legal positivism
 Objective of Pure Theory of Law
o Against mixing law with moral, ethics,…
o Postulate of purity, throwing away the other disciplines
o Separates between sciences and normative disciplines
 Sciences research on what there is (eg reality of the law)
 Law is researching what ought to be
o Dualism of methods
 Separation of law as it is and law as it should be
o Kelsen’s doctrine of interpretation
 There is two very different ways of looking onto legal interpretation
 By the law-applying organ: Authentic
o Eg. A court
o Aimed at law making and improving (judges also make the
law)
o Valid or invalid
 Invalid: someone goes to the wrong court and the
court doesn’t recognize that and makes a judgement
 o Decide between scientifically equally possible interpretations
based on political considerations

 Legal scholarship
o Eg. Interpretation of law from law professors
o Aimed at legal knowledge and wisdom
o True or false
o Reveal possible meanings of legal norm (task of legal
scholarship ends here)
 It can be A, B or C
 When someone says, just B is right, he turns into a
politician
 Whether A, B or C are morally correct, is not a
question of law
o Gives a variety of options
o Deals with legal (NOT moral) norms
o Critics
 Kelsens concept is very narrow and restrictive  he is not giving the legal
discipline instruments to solve legal cases
 It leaves the judges and lawyers without any academic advice
 Its possible to distinguish between legal docmatics and politics

Integrative jurisprudence (legal scholarship)

 Legal scholarship should be integrated  opposite of Kelsens opinion

 Basics
o We need to avoid a unilateral focus on any of them / a one-sidedness
o We have to integrate all disciplines into legal scholarship
o Urges us to be aware that legal scholarship is a multi-intentional activity

Vision of European lawyers

 Lawyers as designers and shapers of the law

o They are not only applying norms
o They are not only subsuming under existing laws
o Eg. Contract lawyers
 Lawyers as cosmopolites
 Lawyers as generalists with meta-knowledge
 Lawyers as scholars and practitioners
 Lawyers as interdisciplinary trained figures
o You need to be open minded towards other disciplines
 Lawyers as conflict-experienced communicators
o Soft skills, rhetoric, to being able to draft a good text
 Discussion

The Hercules-Problem
§ 3 - The concept of law

Introduction

 The necessity of the concept of law

o The concept of law as subject of legal philosophy in a broader sense
 Theory of legal scholarship
 Theory of justice
 Legal theory
 Concept and validity of law
 General theory of law
 Theory of legal argumentation
o The problem of the concept of law
 Immanuel Kant – The Metaphysics of Morals
 What is law?  Prezi Presentation
 Its difficult to determine whether the active law is right in itself
 It is easy to state what may be right in particular cases
 In order to be enlightened/reflective we need to leave our empirical
principals (=dogmatic law)
 With the positive legal orders comes all the limitations  its subjective (only
pure reason can give us objectivity)

The conflict on legal positivism

 Legal positivism
o Core thesis: separation thesis
 Law and morality are separated (vgl. Kant)
 Law has to be defined in a way, that it doesn’t include any parts of morality
o Ancillary thesis: value relativism
 Values like justice are relative
 There is no objective answer to “what is right?”  depends on society,
culture, …
 “therefore, every content can be law” – Kelsen
o Criteria for a positivist concept of law
 No morals and no justice
 Authoritative issuance
 Social efficiency
o Versions of legal positivism
 Exclusive legal positivism: morality is necessarily excluded from the law  no
one can include morality
 Inclusive legal positivism: law can incorporate morality, but there is no
obligation to do so
 Legal non-positivism
o Core thesis: connection thesis
 Not every content can be law (immoral content cant be part of the law)
 Connection between law and morality
o Criteria for a non-positivist concept of law
 Authoritative issuance
 Social efficiency
 Justice
 o Versions of legal non-positivism
 Exclusive non-positivism: unjust norms are excluded; very radical (eg. Tax
law)
 Inclusive non-positivism: also unjust norms are included, unless the degree
of injustice is very high (highly immoral)
 Gustav Radbruch-formula
 Summary  Prezi presentation

The practical significance of the debate

 Statutory injustice
o The citizenship-decision of the Federal Constitutional Court of Germany
 Reason: German law applies only to german citizens
 Details: Prezi-Presentation
 Legal positivist: this is morally incorrect, but it was a legal norm and so it was
correct
 Legal non-positivist: this is extremely immoral, and this isn’t law anymore
o The wall-snipers decision of the Federal Court of Germany
 Details: Prezi-Presentation
 Legal positivist: it was not punishable, because there was an exception
(Rechtfertigungsgrund) for shooting people in order to punish them for their
crimes  it was justified by positive law and law cannot be retroactive
 Legal non-positivists: this is extremely immoral (bc it was murder), and this
isn’t law anymore  they quoted Radbruch
 Judicial development of the law
o Lawyers always have to interpret the norm before applying it
 It can be “further development” of the law (eg. Analogy)
 Princess Soraya: made up interview of a german press  but it didn’t
concern her body or health  court of Germany made an analogy to the
norm
 Doing such an analogy was very tricky, because there was another
norm, which was applicable, but with this norm, she would not been
able to seek pecuniary compensation (bc. Umkehrschluss =
argumentum e contrario)
 “Finding a law and implementing it in decisions is the task of the
judges”  judges have the competence to further develop the law
and correct it

Positivist concepts of law

 Primarily oriented towards efficacy

o External aspect
 “The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law.” -O.W. Holmes
 It simply matters what they to in fact
 Only looks at the factual, external efficacy
 Description not prescription
 Max Weber
 Theodor Geiger
 o Internal aspect
 E.R. Bierling
 Notion of mutually recognition
 The motivation for compliance and expectation (we have that in our mind) is
what matters
 Niklas Luhmann
 Primarily oriented towards issuance
o “Every law or rule…is a command.” – John Austin
o The commander has the power to inflict pain on us when we don’t follow his
demands  we are being sanctioned
o Hans Kelsen
o H.L.A. Hart
o N. Hoerster

Critique of positivistic concepts of law

 Basic distinctions
o Observer/external point of view VS Participant/internal point of view
o Concept of law that embraces validity VS Concept of law where validity doesn’t
matter
o Individual norm VS Legal system as a whole
o Classifying VS qualifying
 Combinations
o 16 different views are possible on the concept of law (applying the basic distinctions)
 Observers perspective
o Individual norm
 A (=Jew) has been deprived of citizenship according to German law.
 A has not been deprived of citizenship according to German law.
 A has not been deprived of citizenship according to German law, although all
German courts and official treat A as denaturalized and support their action
by appeal to the literal reading of a norm authoritatively issued in
accordance with the criteria for validity that are part of the legal system
efficacious in Germany.
 3 possibilities  which is true?
 The observer cannot criticise.
 Report (1) can be correct
 Positivism wins
o Legal system
 Senseless order  no legal system
 Constitution of state X
o Art 1: Desperadoes are allowed to do anything
o Art 1: Non-desperadoes have no rights.
 Predatory order  still no legal system (if we remove justice, then states are
just groups of bandits)
 Among the group of bandits, no force can be used
 Governor system
 The claim for correctness is there
 Only at this point the system becomes a legal system
 o Conclusion
 Claim to correctness is necessary for a legal system  slides a little bit into
non-positivism (claim for moral correctness)
 Positivism loses grant
 Participant’s perspective (he is inside the legal system)
o The argument from correctness
 Art. 1 of the constitution of state X: “X is a sovereign, federal and unjust
republic.”
 Juridical verdict: “The accused is sentenced to life imprisonment, which is an
incorrect interpretation of prevailing law.”
o The argument from injustice
 Unjust law is excluded for the realm of the law
 G. Radbruchs formula  prezi presentation
o The argument from principles
 Rules and principles
 Rules are norms that, upon satisfaction of the conditions specified
therein, prescribe a definitive legal consequence (definitive
commands)
o Application: subsumtion
 Principles are norms commanding that something be realized to the
greatest possible extent relative to the factual and legal possibilities
at hand (optimizing commands)
o Application: Balancing
 By R. Alexy
 The incorporation thesis
 Every legal system, that is minimally developed, incorporates
principles
 The morality thesis
 The principles link to morality  relativistic morality (e.g. Adolf
Hitler, principal of racial segregation)
 We need some notion of correct morality
 The correctness thesis
 If all legal systems necessarily include principles, it leads to a correct
morality
 When I claim something is correct, I claim that I can justify it  we
have a right for justification
 Claim to correctness leads to the implication that a morally defective
norm is also legally defective.
§ 4 Validity of law

Introduction

 Authoritative issuance
 Social efficacy
 Correctness of content

Concepts of validity

 Social validity
o A norm is socially valid if it is complained with or alternately sanction in sense of non
complains
o Applications (e.g. 1600 cases)
o Compliance (e.g. 1000 cases)
o Sanctions imposed (e.g. 200 warnings)
o Rate of effectiveness:

 Ethical concept of validity

o A norm is ethically valid if it’s morally justified (non-positivist-view)
 Juridical concept of validity
o a norm is legally valid if it is authoritatively issued
o definition
o What is the relationship between the juridical concept of validity and the other
concepts of validity?
o Problems connected to the juridical concept of validity
o juridical concept of validity is not totally independent of the other concepts of
validity
o internal problem = where does it start? you are like in a circle  if I say that a norm
has to be authoritatively issued, I have to be clear what “authoritatively” means 
we end up in a circle bc we always ask if the higher norm is validate itself
o external problem = the relation between de juridical concept and the other concepts

Collisions of validity

 Legal versus social validity

o for legal systems as a whole
 it is efficient that the system by and large every norm
o for individual norms
 must have a minimum
 Legal versus moral validity
o for legal systems as a whole (Radbruchs formula does not apply for the whole
system, but only…)
o for individual norms (…for norms)

Theory of the basic norm

 The necessity of the basic norm

o Internal problem of the juridical concept of validity  basic norm ends the “circle”
o Hans Kelsen
 Concept of the basic norm
o The basic norm is a legal norm witch establishes the validity of all other norms except
for his own validity  a norm cannot refer to his self
 Kinds of basic norms
o Normative basic norm (Kant)
 You should obey the basic norm because it’s a postulate of pure reason.
 This norm is not written
 We need positive law and because of that, we need a basic norm
 Interaction is unavoidable  to have our rights protected we need positive
law
o Analytical basic norm (Kelsen)
 “therefore, any kind of content might be law”
o Empirical basic norm (H.L.A. Hart)
 rule of recognition = basic norm
 people obey it socially
 parallels to Kelsen
 functions of the basic norm
o transforming categories is-ought
o criterion for validity and for identification
o creates unity of a legal order