Ratio Juris. Vol. 2 No.

2 July 1989 (167-83)

copyright 0 Robert Alexy 1989

On Necessary Relations Between

Law and Morality*
ROBERT ALEXY

Abstract. The authors thesis is that there is a conceptually necessary connection between
law and morality which means legal positivism must fail as a comprehensive theory.
The substantiation of this thesis takes place within a conceptual framework which shows
that there are at least 64 theses to be distinguished, concerning the relationship of law
and morality. The basis for the authors argument in favour of a necessary connection,
is formed by the thesis that individual legal norms and decisions as well as whole legal
systems necessarily make a claim to correctness. The explication of this claim within
the frame of discourse theory shows that the law has a conceptually necessary, ideal
dimension, which connects law with a procedural, universalistic morality.

Are there necessary relations between law and morality? The answer to this
question has far-reaching consequences. They cover nearly everything from the
definition of the concept of law via the conception of the legal system to the
theory of legal argumentation. It is, after all, a matter of the understanding
of law and of the way legal science and juridical practice see themselves. This
explains why no generally satisfactory answer has yet been found, although
great pains have been taken to seek one.
My thesis is that there is a conceptually necessary connection between law
and morality which means legal positivism fails as a comprehensive theory.
To elucidate and substantiate this thesis, we shall first have a look at the positivist
thesis of separation and its counterpart, the non-positivist thesis of connection.

I. The Theses of Separation and of Connection

All positivist theories plead for the thesis of separation. This says that the concept
of law is to be defined in a way that includes no elements of morality whatsoever.
Consequently, for a positivist theory, only two elements of definition remain:

The authorswarm thanks are due to Miss Susanne Gaschke for help with the translation into
English and to Dr. Ruth Adler for advice on the final English version.
168 Robert Alexy

the element of authoritative decision and the element of social effectiveness.

The manifold variations of legal positivism (cf. Ott 1976, 33-98) result from
differing interpretations and evaluations of these two elements of definition
(Dreier 1986a, 890).
In contrast to this, all non-positivist theories argue in favour of the thesis
of connection. The thesis of connection aims to define the concept of law in
a way that includes elements of morality. N o serious non-positivist, however,
excludes the elements of authoritative decision and social effectivenessfrom the
concept of law. The difference between him and the positivist is established rather
by his thesis that the concept of law is to be defined in such a way that, in
addition to those features that refer to facts, it also includes elements of morality.
Once again, greatly differing interpretations and evaluations are possible.
The theses of separation and connection tell us how the concept of law is
to be defined. Thus they formulate the result of an argumentation without yet
naming the arguments which support it. The arguments that can be adduced
in favour of it can be divided into three categories: the analytical, the empirical,
and the normative. Consideration will here be restricted to analytical and
normative arguments. Rightfully, they are at the centre of the discussion about
legal positivism.2
The main analytical argument in favour of the positivist thesis of separation
is that there is no conceptually necessary nexus between law and morality, or,
between the law as it is and the law as it ought to be. This argument is frequently
labelled the thesis of separation. No one would object to this, but for the danger
of confusing this analytical argument with the thesis that the concept of law
must be defined independently of m ~ r a l i t yThe . ~ fact that the two must not
be confused becomes obvious in the non-positivists ability to grant the positivist
that there is no conceptually necessary connection. The non-positivist can

The two elements of definition refer to the dimension of validity. There is, of course, the possi-
bility of defining the concept of law under exclusion of the dimension of validity (cf. below 11.1).
A positivist theory wanting to make use of this possibility would therefore have to name an element
of definition independent of morality which does not refer to the dimension of validity. This will,
however, not be pursued any further here.
Empirical arguments can either be those that are based on the description of a certain language
usage or practice, or those that refer to factual necessities. Arguments of the first kind can only
show that a connection between law and morality is necessary for a certain language usage or practice,
but not that it is necessary in general. To show the latter, the analysed language usage or practice
would have to be marked in some way. Arguments of the second kind can be based upon empirical
theses like the one that a legal system, which neither protects life, nor freedom, nor property of
any of its subjects, has no chance to be of lasting validity. The protection of life, freedom, and
property is, however, also a moral demand. One can therefore say that the fulfilment of certain
minimal moral demands is factually necessary for the lasting validity, and consequently, the existence
of a legal system (cf. Hart 1961, 188ff.). Also in this variation, the empirical argument, as far as
the problem of a conceptually necessary connection between law and morality is concerned, remains
incomplete. To argue from the thesis that the fulfilment of certain minimal moral demands is factually
necessary for the lasting existence of a legal system to the thesis that those demands must be included
in the concept of law, further premises are necessary.
A confusion can be found, e.g., in Hoerster (1986, 2480).
 O n Necessary Relations Between Law and Morality 169

support his thesis that the concept of law has to be defined with reference to
elements of morality by non-analytical arguments.
Both the thesis of separation and the thesis of connection are supported by
a nonnative argument, when it is pointed out that the exclusion or the inclusion
of elements of morality from or into an account of law is necessary in order
to reach a certain aim or to fulfil a certain norm. Connections or separations
substantiated in this way can be called "normatively nece~sary."~ Normative
arguments are involved e.g. if one argues in favour of the thesis of separation
by pointing out that it leads to linguistic and conceptual clarity or that it
guarantees legal security. The same holds if one argues for the thesis of connec-
tion, by pointing out that it facilitates the best solution to problems of legal
inj~stice.~
Recent debates on the concept of law have suggested that the term "law" is
ambiguous and vague to such an extent that the argument about legal positivism
cannot be settled by means of conceptual analysis. The substance of the argument
is said to be "a normative stipulation, a suggestion for a definition" (Hoerster
1986, 2481;Hoerster 1987, 187ff .), which could only be justified by nonnative
arguments. It must be emphasized that it is not the "openness" of the concept
of law in every aspect which is being claimed here, that is that according to
normative considerations any determination of its meaning could be given. The
claim is only of an openness with respect to the problem of the connection
between law and morality. This is equivalent to the thesis that a connection
between law and morality is neither conceptually necessary nor conceptually
impossible.
There are good reasons for positivism to transfer the problem to the nonna-
tive level. The positivist thesis of separation says that the concept of law
has to be defined in such a way so as to exclude moral elements, not only
in some, but in all its applications. The thesis of separation in this universal
version could only be based exclusively upon analytical arguments if the
inclusion of morality in the concept of law were conceptually impossible in all
its applications. That this is not the case, becomes obvious when looking at
situations in which a sentence like: "Norm N is enacted correctly and socially
effective but no law, because it violates fundamental principles" does not include
a contradiction, and the question "Norm N is enacted correctly and socially
effective, but is it also law?" is not meaningless. The only thing which could
possibly be proved by analytical arguments alone is the fact that there are some
applications of the term "law" in which moral elements cannot be included for
conceptual reasons. That is, however, not what the positivist thesis of separation
says.

*There has to be a strict distinction between normative and conceptual necessity. Something being
normatively necessary means no more than its being obligatory. The validity of an obligation can
be denied without committing a contradiction, but the existence of a conceptual necessity cannot.
Thus it becomes obvious that normative necessity is only a necessity in a broader sense.
For a compilation of normative arguments for and against legal positivism, cf. Ott (1988, 345-56).
170 Robert Alexy

A positivist who wants to defend the universal version of the thesis of

separation with any chance of success has therefore to make two claims. Firstly,
he has to deny any conceptually necessary connection between law and morality
on an analytical level, and secondly, on a normative level, he has to claim that
there are better reasons for a definition independent of morality than for a
definition that includes morality. The non-positivist, on the other hand, succeeds
in defending his thesis of connection if he refutes either of these two claims.
He refutes the first claim once he is able to show that there is no conceptually
necessary connection between law and morality whatsoever. To attempt this
is especially attractive because of the importance of conceptual arguments.
In the following, we shall therefore only consider conceptually necessary
connections.

11. A Conceptual Framework

The substantiation of my thesis that there is a conceptually necessary connection
between law and morality, will take place within a conceptual framework
consisting of four distinctions.

1. Concept and Validity

The first distinction is between a concept of law that includes the concept of
validity and one that does not (cf. Kantorowicz 1958, 16ff.). It is easy to see
that this distinction should be made. Thus, one can say, without committing
a contradiction: N is a legal norm, but N is not valid any more/right now/yet.
It is furthermore possible to imagine an ideal legal system and to remark on
it as follows, without contradicting oneself: This legal system will never be
valid. On the other hand someone who refers to valid law does not have to
refer to validity. He can simply say: The law demands it. Thus it is clear that
both a concept of law which includes a concept of validity and one which does
not are possible.
In order to discuss legal positivism, it is advisable to choose a concept of
law which does include validity. In this way a trivialization of the problem can
be avoided. The latter would lie in first defining law as a class of norms for
e.g. outward behaviour without reference to the dimension of validity (6.Dreier
1987, 374f.) only to say then that there could be no conceptually necessary
connection between law and morality, because one could imagine norms for
outward behaviour with any possible content. The inclusion of validity in the
concept of law means the inclusion of the institutional context of the enactment,
application, and enforcement of law. This context can be of importance for the
question of a conceptually necessary connection.
 On Necessary Relations Between Law and Morality 171

2. Norm and Procedure

The second distinction is between the legal system as a system of norms and
the legal system as a system of procedures.6 As a system of procedures the
legal system is a system of actions based on and guided by rules by which norms
are enacted, substantiated, interpreted, applied, and enforced. As far as the thesis
of connection refers to the legal system as a system of norms, it refers to the
results or products of some process of norm creation. Therefore one can say
that the thesis of connection in this version refers to the externalities of the legal
system. On the other hand internal aspects are involved if the claim is that of
a necessary connection between the legal system as a system of procedures and
morality .

3. Observer and Participant

The third distinction is that between the observer's and the participant's perspec-
tive. This dichotomy is ambiguous (MacCormick1978, 275-92). The following
interpretation will be used here: The participantS perspective is occupied by
someone who within a legal system takes part in a debate about what this legal
system obligates, prohibits, and permits, and what powers it confers. The judge
is the focus of the participant's perspective. If other participants, for example
legal scientists, lawyers, or citizens interested in the legal system, come up with
arguments for or against certain contents of the law, in the end they refer to
how a judge would have to decide, if he wanted to make a correct legal decision.
' The observer's perspective is occupied by someone who does not ask what
is a correct decision according to a certain legal system, but how decisions
are in fact made in a certain legal system. An example of such an observer is
Norbert Hoerster's white American who wants to travel to South Africa with
his black wife and is considering the juridical aspects of his journey (Hoerster
1986, 2481).

4 . Definition and Ideal

The fourth distinction refers to two different kinds of conceptually necessary
connections between law and morality. The first kind will be called "defining,"
the second "quaIifying" connections. A "defining" conceptual connection is at
issue if a norm or a system of norms, which does not fulfil a certain moral
criterion, is denied the status of a legal norm or a legal system. A "qualifying"
conceptual connection is at issue if someone claims that a norm or a system
of norms, which does not fulfil a certain moral criterion, may be regarded as
a legal norm or a legal system, but is nevertheless a faulty legal norm or legal

For the legal system as a system of procedures, cf. Alexy (1981, 185ff.). Fuller's distinction
between "the purposive effort that goes into the making of law and the law that in fact emerges
from that effort"might be quite similar to the distinction between norm and procedure made here
(cf. Fuller 1969, 193).
172 Robert Alexy

system for conceptual reasons. What is decisive here is that the claimed fault
is of a Iegal and not just a moral nature. Arguments aimed at qualifying
conceptual connections are based on the assumption that legal ideals are
necessarily contained in the reality of a legal system. Instead of a "qualifying"
connection, one could also speak of an "ideal" one.

5. Combinations
The conceptual framework outlined above makes it obvious that one can mean
various things by the thesis that there is a necessary connection between law and
morality. If one adds the distinction between a conceptually and a normatively
necessary connection' to the four distinctions of the conceptual framework,
namely the distinctions between a concept of law including and one excluding
validity, between norm and procedure, between observer and participant, and
between defining and qualifying connections, 32 combinations of the features
contained in these distinctions become possible. For each combination one can
either formulate the thesis that a necessary connection exists, or that it does
not exist. The total of theses is therefore 64. As to the problem of connection,
there are undoubtedly relations of implication between the 64 theses, Thus, truth
or falsity of some of the theses implies the truth or falsity of other theses. It
is also possible that some combinations are conceptually impossible. This does
not, however, change the basic insight that in the argument about necessary
relations between law and morality a variety of rather different claims are at
issue. An explanation for the paucity of this argument might be in the fact that
participants in the debate often fail to realize that the thesis they are defending
is different from the one which they are attacking, so that they talk at cross-
purposes. This explanation gains in plausibility if one considers the possibility
of other distinctions besides the five mentioned here; the number of possible
theses could far exceed the number of 64.
The multiplicity of theses has already been reduced in two respects here: First,
only conceptually necessary connections wiIl be examined, and second, a concept
of law which includes the concept of validity will be the basis of argumenta-
tion. Accordingly only eight combinations, that is 16 theses, remain. Another
simplification would appear to be sensible. Of the remaining eight combinations
only two extreme ones will be looked at more closely.
The first one is adopted by a person who regards the law exclusively as a
system of norms, takes on the observer's perspective, and asks for a defining
connection. Someone is asking for such a connection, if he wants to know
whether for conceptional reasons an offence against a moral criterion removes
the status of a legal norm or a legal system from the norms or systems of norms
under consideration. Whoever wishes to argue this question positively has to

'In order to be able to combine the distinction between a defining and a qualifying connection
with the concept of the normatively necessary connection one has to remove the feature of conceptual
necessity inserted in that distinction for the sake of simplification.This is an unproblematic operation.
 O n Necessary Relations Between Law and Morality 173

demonstrate that norms and systems of norms necessarily lose their legal
character once they cross a certain threshold of injustice. His argument can
be named "argument of injustice" with reference to Dreier (1986a, 890). One
has to emphasize here that the argument of injustice can appear in quite
different forms. In Dreier, it refers to a normatively necessary connection,
substantiated from the perspective of a participant (Dreier 1986a, 894). This
variation can be called "internal" and "normative." The only thing to be
considered here will be a conceptually necessary connection, to be judged
from the point of view of an observer. Thus, only one version of the argument
of injustice which can be named "external" and "analytical" will be discussed
here.
The counterpart to the perspective characterizedby the concepts of the norm,
the observer, and the definition is the perspective characterized by the concepts
of the procedure, the participant, and the ideal. Whoever wants to demonstrate
a conceptuallynecessary connection between law and morality from this perspec-
tive, can try to show that in the process of enacting and applying law, a claim
to correctness is necessarily made by the participants, a claim which embraces
a claim to moral correctness. The reasons for this thesis will be summed up
as the "argument of correctness." Although in both cases a conceptually
necessary connection is at issue, that of the argument of injustice can be labelled
"hard' while that of the argument of correctness can be labelled "soft." We
should first examine the hard thesis.

111. The Argument of Injustice

The argument of injustice can refer to individual norms of a legal system, or
to a legal system as a whole.

I. Individual Norms
The possibly best-known version of the argument of injustice referring to
individual norms originates from Gustav Radbruch. His famous formula is:

The conflict between justice and legal certainty might be solved in a way which gives
priority to the positive law, secured by enactment and power, even if it is unjust and
unreasonable as far as its contents are concerned, except for the case where the contradic-
tion between positive law and justice becomes so unbearable that the statute as "incorrect
law" has to make way for justice. (Radbruch 1946, 353)8

For the reception of the formula by the Federal Republic of Germany's Courts, cf. BVerfGE 3,
58 (119);3, 225 (233); 6, 132 (138); 6, 389 (414ff.); 23, 98 (106); 54, 53 (67ff.); BGHZ 3, 94 (107);
23, 175 (181); BGHSt 2, 173 (177); 2, 234 (238); 3, 357 (362ff.).
174 Robert Alexy

Discussion of this formula has been pursued almost exclusively9with normative

arguments. For Radbruch, the formula is the result of weighing up the values
of justice and of legal certainty (Radbruch 1946, 352f.), that is, the result of
a normative consideration. The incorporation of moral elements into the concept
of law as suggested by him was necessary to support jurists against the challenge
of an unjust state (Radbruch 1946, 354f.). According to Dreier, Radbruchs
formula is necessary in order to remove the legal consequences of an unjust
system, even if the new legislator remains passive (Dreier 1986a, 891). Critics
do not rely on conceptual arguments either. Hart mentions the advantages of
linguistic-conceptual clarity and integrity in favour of the thesis of separation
(Hart 1958, 619f.), and Hoerster doubts whether a definition put forward by
legal philosophy could increase resistance against legal injustice (Hoerster 1987,
187f.).
It is only of interest here whether Radbruch's formula, from the point of
view of an observer who regards a legal system as a system of norms, expresses
a conceptually necessary or a conceptually impossible connection. As an
example one can examine the eleventh regulation to the Reichsbiirgergesetz dated
25th November 1941, by which emigrated Jews had their German citizenship
revoked for racial reasons. By referring to Radbruch's formula the Federal
Constitutional Court has regarded the regulation void from the outset (BVerfGE
23, 98 (106)). How would a contemporary observer of the national-socialist
legal system, e.g. a foreign jurist, who wants to write a report on Nazi-Germany's
legal system for a juridical journal in his home country, describe the case of
the expatriated Jew A7 Everyone in his home country could understand the
sentence:

(1) A is expatriated according to German law

without any further explanations. This is not the case with the sentence:

(2) A is not expatriated according to German law.

If no further information were added to this sentence, it would either give false
information or confuse the reader. This already shows that in the constellation
examined here an incorporation of moral elements into the concept of law is
not necessary. Furthermore, one even has to ask whether in this constellation
such an incorporation is conceptually impossible. Suppose our observer's report
contained the following sentence:

An exception is Radbruchs thesis: "For one cannot define law, also positive law, in any other
way than as an order or statute which is by its very sense determined to sewe justice" (Radbruch
1946,353). With Radbruch it is only in his later works that this thesis leads to a defining connection.
That this was only of qualifying meaning before, is revealed by the fact that Radbruch argued for
it together with the thesis of separation (Radbruch 1970, 123, 178f.).
 O n Necessary Relations Between Law and Morality 175

(3) A is not expatriated according to German law although all Gennan Courts and the
Administration treat him as expatriated and refer for support to the text of a norm
which is correctly enacted according to the criteria of validity of the legal system
effective in Germany.

One may assume that this sentence in the described constellation contains a
contradiction. Thus it is clear that there is a use of the term 'law" in the observer's
perspective according to which the inclusion of moral elements in the concept
of law as defining characteristics is not only conceptually unnecessary but
conceptually impossible. The fact that our observer could end his report with
the following open question:

(4) A is correctly expatriated according to the criteria valid in Germany and his expatria-
tion is socially effective, but is it law?

is no argument against this view. With this question, the observer's position
has been abandoned. Furthermore, it is quite unclear whether it is still a defining
or now a qualifying connection that is at issue. Thus the question leads beyond
the constellation examined here. That is why one has to state that Radbruchs
thesis of connection in the constellation examined here, namely that of the
observer who has a look at individual norms and asks for a defining connection,
is not supported by a conceptually necessary connection between law and
morality. One must note however that from the fact that positivism is correct
as far as the external and analytical variation of the argument of injustice
referring to individual norms is concerned, nothing follows as to the rightness
of the internal and normative variation.

2 . Legal Systems
What is true for an individual norm does not automatically have to be true
for a legal system as a whole (cf. Hart 1958, 621). The question therefore is
whether there is a conceptually necessary relation between whole legal systems
and morality. Again, the question will be asked from the point of view of an
observer who regards the law solely as a system of norms and asks for a defining
connection.
Two kinds of moral demands can be distinguished which may be in a necessary
relation with the law: formal and material demands. An example of a theory
which claims a necessary connection between formal moral criteria and the
legal system is Fuller's theory of the internal morality of law. Among these
criteria Fuller includes principles of legality like those of the generality of law,
promulgation, and the prohibition of retroactive laws (Fuller 1969, 46ff.). On
the other hand, the connection of material moral criteria and the legal system
is at issue when Otfried Hoffe denies systems of norms which do not fulfil certain
fundamental criteria of justice, their legal character (Hoffe 1987, 159, 170). He
determines those fundamental criteria of justice by the principle of distributive
176 Robert Alexy

advantage, which includes the principle of collective security, demanding among

other things a prohibition of murder and manslaughter, as well as of robbery
and theft addressed to all members of the legal system (Hoffe 1987, 169ff.).
When discussing such connections one has to distinguish clearly between
factual and conceptual connections." A legal system which does not contain
general norms, or consists only of secret or exclusively of retroactive norms,
or protects neither the life, nor the freedom, nor the property of its members,
has no chance of continuous validity and therefore of continuous existence in
the world and with actually extant people. This is a simple but important
empirical fact which will, however, not be further examined here. The question
is rather whether such a system can still be included within the concept of a
legal system.
There are two kinds of social order that cannot be legal systems for conceptual
reasons, no matter whether they are of continuous validity or not: the senseless
and the predatory order. We have a senseless order when a group of individuals
is ruled in a way that neither reveals consistent purposes of the ruler or rulers
nor makes a continuous pursuit of the subjects' purposes possible. Imagine a
larger number of people ruled by a group of armed desperados. The subjects
have no rights. Within the armed group any violent action is permitted. Except
for this permission there are no general norms." The desperados give partly
contradictory, ever-changing, and partly unfulfillable single orders to the
subjects. Whenever the subjects obey they do this only for fear of violence.
Such an order is no legal system for conceptual reasons.
The senseless order becomes predatory once the desperados develop into
organized bandits. This presupposes at least a prohibition of violence and a
hierarchy of orders amongst the bandits. Suppose further that a system of rules
is drawn up for the subjects with the sole purpose of securing their further
exploitation. To take an extreme example: One of the bandits' main sources
of income consists of the regular killing of subjects in order to sell their inner
organs. To have victims as healthy as possible for this purpose, they forbid
their subjects to smoke, drink, or exercise any form of violence. The rules do
not, however, establish any rights towards the bandits. The purpose of exploita-
tion is known to everyone. The bandits in no way try to conceal it. One can
argue about whether the system of norms valid for the bandits is a legal system,
but the system as a whole is not for conceptual reasons alone.I2To substantiate
this, one should now look at a third order.

lo In this sense Kelsen names a "minimum of collective security" as a "condition for a relatively
lasting validity" but not as a necessary moral element of the concept of law (Kelsen 1960, 49f.).
Kelsen would not even talk of a %and of robbers" here, since given the lack of a prohibition
against violence among the desperados, there is no community and therefore no "band (Kelsen
1960, 48).
l2 The bandit-system is a case in which Augustine's band-of-robbers-argument leads to a denial
of legal quality. Cf. De Ciuitute Dei, IV, 4: "Remota itaque iustitia quid sunt regna nisi magna
latrocinial quia et latrocinia quid sunt nisi parva regnal"
 On Necessary Relations Between Law and Morality 177

In the long run the predatory order does not serve its purpose. Therefore
the bandits strive for legitimation. They develop into rulers and thereby the
bandit-system becomes a ruler-system. They keep exploiting their subjects. But
they now pursue the acts of exploitation by a practice guided by rules. They
claim that the practice is right, because it serves some higher purpose, like e.g.
the peoples development. Killing and robbing individual subjects for the rulers
purpose of exploitation is possible at any time. The rulers are however punished
if they do not kill and rob according to a certain form, for instance by a decision
of three members of the ruling group, and if their acts are not publicly justified
by the purpose of developing the people. The majority of the subjects accepts
this justification, and most rulers believe in it as well.
With this step a line has been crossed. The system is undoubtedly very unjust.
Still it is not conceptually impossible to call it a legal system. Therefore one
must ask what makes the differencebetween the ruler-system and the desperado-
and bandit-system. This difference is not the introduction of some general rules,
because they are already introduced in the bandit-system. The difference is not
made by the fact that the rulers system provides an advantage for all by giving
a minimum protection of life, freedom, and property either, because killing and
robbing of subjects remains possible at any time. The decisive point is rather
that a claim to correctness is rooted in the practice of the rulers system and
raised against everyone. This claim to correctness is a necessary element of the
concept of law. The connection of law and morality is established by it. This
must now be substantiated. If the substantiation succeeds, positivism fails as
far as legal systems are concerned, even in the constellation most advantageous
to it, that is, the one which is marked by the concepts of norm, observer, and
definition.

1V. The Argument of Correctness

In the last example the legal system was already more than a mere system
of set and effective norms. Now a totally new perspective is going to be
adopted, which is characterized by the question whether there is a conceptually
necessary connection of at least a qualifying nature between law and morality,
if one assumes the legal system to be a system of procedures as well, and
views it from the point of view of a participant, e.g., from a judges point
of view.
My positive answer to this question is based on two theories: the theory of
claim and the discourse theory as the thesis of the special case. A third theory
could be added: the theory of principle (cf. Dreier 1986b,27ff.). However, this
theory will not be discussed here. These theories express different aspects of
the idea of legal correctness. The idea of legal correctness leads to a concep-
tually necessary connection between law and morality.
178 Robert Alexy

7. The Theory of Claim

The theory of claim states that individual legal norms and decisions as well as
whole legal systems necessarily make a claim to correctness. Norm systems which
do not explicitly or implicitly make this claim are not legal systems. So far the
theory of claim is of defining character. Legal systems which make this claim
but do not fulfil it are legally faulty legal systems. In this respect the theory
of claim is of qualifying character. The theory of claim plays an exclusively
qualifying role in the case of individual legal norms and decisions. They are
legally faulty if they do not make or fulfil the claim to correctnes~.~
The theory of claim can be attacked in two ways. One can firstly deny that
this claim is conceptually connected with the law or secondly state that this
claim, should it be conceptually connected with the law, is of trivial content
and does not include moral implications.
In order to refute the first objection one should look at two examples. The
first example is the first article of a new constitution for the state X, in which
a minority suppresses the majority. The minority wishes to continue enjoying
the advantages resulting from suppressing the majority but at the same time
wants to be honest. Its constitutional assembly resolves on the following sentence
as first article of the constitution:

(1) X is a sovereign, federal, and unjust republic.

This constitutional article is faulty in some way.14 The question is: In what
does the fault consist?
One could come to think that the fault lies exclusively in the fact that the
article does not serve its purpose very well. The minority wants to maintain
the unjust situation. The chances to succeed in this are weakened however if
it does not at least pretend that it is just. Here, indeed we do have a technical
fault. It does, however, not explain the articles faulty nature. Suppose the new
article were removing a formerly existing monarchy and creating a republic.
Suppose further that the suppressed majority used to adore the former monarch
deeply and that therefore the present situation is endangered in the same way
by the possible introduction of a republic and the marking of this republic as
unjust. If introducing the injustice clause were a mere technical fault, the people
making the constitution would commit the same mistake by introducing the
republic clause. This is not the case.
Accordingly, there must be another explanation for the articles deficiency.
One could assume a moral fault. We do have moral incorrectness here, but it

l3 If it were furthermore to be shown that they lack the character of law or legal validity, this could
only be done by normative arguments. Here is the place to employ Dreiers version of the argument
of injustice. For the power of the normative argument it will be of importance that it is concerned
with something flawed for conceptual reasons from the outset. This will not, however, be pursued
any further here.
l4 For a similar argument, cf. MacCormick (1986, 141).
 O n Necessary Relations Between Law and Morality 179

is easy to see that this is not yet a complete explanation. Suppose the injustice
consisted in denying members of a certain race certain rights. Under the aspect
of a moral fault it would make no difference if the injustice clause were removed
and replaced by a second article which denies the members of this race these
rights. A difference would, however, remain under the aspect of "faultiness."
An explanation for this might be the fact that a widespread, but not a
necessary convention concerning the wording of constitutional texts was
violated, that is, that we have a conventional fault. A widespread convention
is doubtlessly violated. On its own this is not yet a complete explanation either.
The violated rule is more than mere convention. This is made obvious by the
fact that it cannot be changed even in changing conditions or because of changing
preferences. It is constitutive of the practice of giving constitutions. This is
confirmed by an article like:

(2) X is a just state

being redundant.
Thus only a conceptual fault remains. With the act of giving a constitution,
a claim to correctness is necessarily connected, in this case being mainly a claim
to justice. The author of a constitution commits a performative contradiction,
if the content of his constitutional act denies this claim, while he raises it with
the execution of his act."
In the second example a judge announces the following verdict:

(3) The defendant is - wrongly - sentenced to life imprisonment.

This sentence needs to be interpreted. The judge may be wanting to express
that the verdict contradicts positive law. He may also be wanting to say that
it corresponds to positive law, but is unjust. These and other interpretations
lead to numerous problems which will not be dealt with here. Only the following
interpretation should be of interest:

(4) The defendant is - wrongly, because the valid law was interpreted incorrectly -
sentenced to life imprisonment.

Doubtlessly the judge leaves his social role here and violates rules of positive
law in probably all legal systems, which oblige him to interpret the valid law
correctly. He would, however, also violate social rules if he announced the
verdict unshaven and in a dirty robe. The verdict would also violate rules of
positive law if its interpretation were wrong but the judge believed and claimed
that it was right. Conversely, a fault would also be committed, if the judge
erringly supposed that his interpretation was wrong and announcing this error

l5 Insofar, there is a certain analogy to Austin's famous example: "The cat is on the mat but I do
not believe it is" (Austin 1962, 48f.; Austin 1970, 63f.).
180 Robert Alexy

in the verdict did not violate positive law. This makes obvious that what we
have here is more than social or legal irregularity.I6 The judge commits a
performative contradiction and in this sense a conceptual mistake. A judicial
decision always claims to apply the law correctly, no matter how little this may
be the case. The verdict's content contradicts the claim made by the institu-
tional act of announcing the sentence.
The two examples show that the participants of a legal system necessarily
make a claim to correctness at the most different levels. This does not yet prove
that this claim leads to a conceptually necessary relation between law and
morality. To explicate this, we shall now examine discourse theory as the thesis
of the special case.

2. Discourse Theory
Again the starting point is the claim to correctness. The claim to correctness
implies a claim to justifiability. Now, very different justifications for judicial
decisions are conceivable. The spectrum reaches from mere references to
traditions and authorities to rational argumentations which consider all aspects.
The decisive point is that the claim to justifiability opens up a critical perspective.
The fact that a judicial decision is either not substantiated at all, or substantiated
according to irrational standards, or badly substantiated, does not deprive it
of the character of a judicial decision. In these respects the claim to justifiability
is not of defining but of qualifying meaning. The claim to justifiability does,
however, create the possibility of raising counterarguments which can prove
to be better and eventually change the practice of justifying. In this way the
necessarily raised claim to justifiability bears in itself the possibility of developing
higher levels of justification like those developed in modern legal systems.
Whoever justifies something at least pretends that he accepts the other person
as an equal partner, at least in discourse and that he neither exercises coercion
himself nor is supported by coercion exercised by others. He furthermore claims
to be able to defend his thesis not only against his partner in discourse but against
everyone. These claims to equality and universality form the basis of a procedural
ethic built on the idea of generalizability. This is the discourse-ethic (cf. Habermas
1983, 53ff.; Alexy 1988, 43ff.; Alexy 1989, 177ff.). The connection discourse
theory creates between the concepts of correctness, of justification, and of
generalizability can be transferred to the law with the help of the thesis that
legal discourse is a special case of general practical discourse (cf. Alexy 1989,
212ff .; Habermas 1981, 62f.; Habermas 1987, 15; MacCormick 1978, 272ff.;
Kriele 1979, 34). Should this thesis be true, a necessary connection could be
established between law and a universalistic morality, which is directly valid
for modern legal systems and possibly justifiable for pre-modern legal systems

l6 Disagreeing, Neumann (1986, 88 ff.) refers to the following example: "In the name of the people,
Mr N is sentenced to ten years of imprisonment although there are no sound reasons for it."
 On Necessary Relations Between Law and Morality 181

within the frame of a normative theory of legal evolution. If, as can only be
claimed here, the thesis is true that the universalistic morality which - in law
- has found its expression in the basic rights and principles of democracy, is
either the or a right morality, a necessary connection between the law and the
or a right morality would have been found.
Various objections have been raised against the thesis of the special case
(cf. e.g. Neumann 1986, 84ff.; Kaufmann 1986, 436f.; Tuori 1989). As far as
they refer to the understanding of institutionalizedlegal procedures as discourses
they have to be disregarded here. At this point it only matters whether legal
argumentation as such, that is independent of the institutionalized procedures
in which it takes place if it leads to binding decisions, is an argumentation which
is to be interpreted as an actual or possible contribution to a practical discourse.
Hard cases are sensors by which the nature of the law can be established. One
should therefore ask whether the justification of a decision in a hard case is
to be interpreted as an actual or as a possible contribution to a practical
discourse.
The most important problem results from the fact that legal decisions do not
claim to be correctly justifiable in an absolute sense but only that they can be
correctly justified within the framework of a particular legal system. This is
the case if they can be rationally justified under consideration of statutes,
precedents, and dogmatics (Alexy 1989,214,220,289). Ulfrid Neumann (1986,
90) claims that these limitations which are constitutive for legal argumentation,
lead to a difference in quality between the legal and the general practical
argumentation. He argues that legal argumentation might have to rely on an
unreasonable law, This separation of discursive and legal rationality is hasty.
It overlooks two aspects. The first is that, realizing the openness of the results
of general practical discourses, rational reasons can be given for the introduction
of institutionalized procedures of decision like parliamentary legislation, so that
the authoritative limits of legal discourse do not deprive it of the character of
a rational procedure (Alexy 1981, 185f.; Habermas 1987, 13f.). The second
aspect, which is more important here, is that a legal decision which applies
unreasonable or unjust law correctly, in no way fulfils the claim to correctness
necessarily raised by it in every respect. As this claim is of no defining meaning
to single decisions, it is, if the unreasonable or unjust law is valid, a legally
valid decision. It is also possible that formal principles (cf. Alexy 1985, 120)
like those of legal certainty and separation of power demand compliance with
unreasonable or unjust law. Still, because of the qualifying character of the claim
to correctness the decision suffers from a legal fault. It is no legally perfect
decision.
Thus my argument for a conceptually necessary connection between law and
morality is closed. Its basis is formed by the claim to correctness. This is only
of defining meaning for legal systems as a whole. Apart from that it is of
qualifying character which becomes obvious if the legal system is also regarded
as a system of procedures from the point of view of a participant. The explication
182 Robert A l e x y

of this claim within the frame of discourse theory makes it clear that the
law has a conceptually necessary ideal dimension, which connects law with a
procedural, universalistic morality.

Christian Albrechts University

Faculty of Law
Olshausenstrufle 40
0-2300 Kiel I
West Germany

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