Legal Certainty and Correctness*

Robert Alexy

What is the relation between legal certainty and correctness? This question

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 ques-

tion 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 ex-

plain what the concept and the nature of law, thus understood, imply for the rela-

tion between legal certainty and correctness. Here three issues shall be consid-

ered: first, the Radbruch formula as an answer to the problem of extreme injus-

tice, 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 development of the law.

I. 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 be-

tween 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.1 The factual side is represented by the

defining elements of authoritative issuance and social efficacy, whereas the ideal

side finds its expression in the element of correctness of content.2 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 ob-

jectives cannot be realized, however, apart from issuance and efficacy. Thus,

there exists an intrinsic connection between the principle of legal certainty and

* I should like to thank Stanley L. Paulson for suggestions and advice on matters of English style.1 Robert Alexy, ‘The Dual Nature of Law’, Ratio Juris 23 (2010), 167-82, at 167.2 Robert Alexy, The Argument from Injustice. A Reply to Legal Positivism, trans. Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon Press, 2002), 13.

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positivity. And positivity, for its part, is defined in terms of issuance and effi-

cacy, 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 distribu-

tion and balance,3 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 correct-

ness of content. As soon as moral correctness or justice are added to authorita-

tive 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 inte-

gral 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 else-

where against a variety of objections,4 and there is no need to repeat these

replies here. Instead, I shall turn directly to the principles of correctness of con-

tent and legal certainty.

II. The Principle of Correctness of Content

Against the principle of correctness of content or substantive correctness the ob-

jection might be raised that it refers to something that does not exist. The cor-

rectness of content concerns the question of what is commanded, prohibited, and

3 Robert Alexy, ‘Giustizia come correttezza’, Ragion Pratica 5 (1997), 103-13, at 105.4 Alexy, The Argument from Injustice (n. 2 above), 35-9; Eugenio Bulygin, ‘Alexy und das Richtigkeitsargument’ in Rechtsnorm und Rechtswirklichkeit. Festschrift für Werner Krawietz, ed. Aulis Aarnio et al. (Berlin: Duncker & Humblot, 1993), 19-24; Robert Alexy, ‘Bulygins Kritik des Richtigkeitsarguments’ in Normative Systems in Legal and Moral Theory. Festschrift for Carlos E. Alchourrón and Eugenio Bulygin, ed. Ernesto Garzón Valdés et al. (Berlin: Duncker & Humblot, 1997), 235-50; Eugenio Bulygin, ‘Alexy’s Thesis of the Necessary Connection be -tween Law and Morality’, Ratio Juris 13 (2000), 133-7; Robert Alexy, ‘On the Thesis of a Necessary Connection between Law and Morality: Bulygin’s Critique’, Ratio Juris 13 (2000), 138-47.

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permitted apart from norms issued in the positive law. This is to say that it con-

cerns 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 practi-

cal questions are, however, not justifiable.

Such a fundamental denial of the justifiability of moral norms can be charac-

terized as ‘radical scepticism’. Radical scepticism has its roots in forms of emo-

tivism, 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 Ricœur puts it, of ‘provableness or

arbitrariness’.5 Provableness poses too high a demand in connection with practi-

cal questions. If arbitrariness were the only alternative, the irrationality objection

of radical scepticism would be well-founded. But there exists, between prov-

ableness and arbitrariness, a third way, namely reasonableness. One who sub-

mits his moral judgments to rational argumentation is reasonable. Thus, every-

thing 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 28 rules and forms of general practical discourse. This sys-

tem comprises rules that demand non-contradiction, universalizabilty qua con-

sistent 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.6

It is a central assumption of discourse theory that agreement in discourse, first,

depends on argument, and that, second, a necessary relation exists between uni-

5 Paul Ricœur, ‘Zu einer Hermeneutik des Rechts: Argumentation und Interpretation’, Deutsche Zeitschrift für Philosophie 42 (1994), 375-84, at 378 (trans. R. A.).6 Robert Alexy, A Theory of Legal Argumentation, trans. Ruth Adler and Neil MacCormick (Oxford: Clarendon Press, 1989), 188-206.

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versal 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.

Discourse theory is confronted with a number of problems.7 Here only the

problem of applicability or practicability shall 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 ar-

rive, 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. Nev-

ertheless, this idea is not only always present in real discourses, it is also possi-

ble that real discourses approximate ideal discourse.8 To be sure, this connection

of the real discourse with the ideal discourse can remove the indefiniteness of

result only to a rather limited degree. There are, indeed, things that are not con-

ceivable 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’.9 Other things are ‘dis-

cursively necessary’. Human rights and democracy are examples.10 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 characterized as ‘discursively possi-

ble’. Discursively possible disagreement is, however, ‘reasonable disagree-

ment’.11 Here, discourse theory meets a border that it cannot by itself pass. One

might call this the ‘problem of knowledge’.

7 Robert Alexy, ‘Problems of Discourse Theory’, Crítica 20 (1988), 43-65.8 Robert Alexy, ‘Hauptelemente einer Theorie der Doppelnatur des Rechts’, Archives for Philosophy of Law and Social Philosophy 95 (2009), 151-66, at 157-8.9 Alexy, A Theory of Legal Argumentation (n. 6 above), 207.10 Robert Alexy, ‘Discourse Theory and Human Rights’, Ratio Juris 9 (1996), 209-35, at 222-35.11 John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 55.

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III. 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 obser-

vance cannot be expected of anyone. This leads to the necessity of the connec-

tion of law and coercion as a decisive element of social efficacy.12 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 it-

self 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.13

Certain identification and certain enforcement are, however, not possible with-

out positivity. Radbruch clothes this idea, already clearly expressed by Kant,14 in

the formulation ‘that all of what is called positive law stems from the require-

ment of legal certainty’.15 Thus, legal certainty becomes the ground of positivity.

IV. Second-Order Correctness

12 Robert Alexy, ‘On the Concept and the Nature of Law’, Ratio Juris 21 (2008), 281-99, at 293.13 Gustav Radbruch, ‘Der Zweck des Rechts’, in Gustav Radbruch. Gesamtausgabe, ed. Arthur Kaufmann, vol. 3 (Heidelberg: C. F. Müller, 1990), 39-50, at 45 (trans. R. A.).14 Immanuel Kant, ‘The Metaphysics of Morals’, in Immanuel Kant. Practical Philosophy, trans. and ed. Mary J. Gregor (Cambridge: Cambridge University Press, 1996), 353-603, at 456: ‘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), sub-ject itself to a public lawful external coercion, and so enter into a condition in which what is to 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)’.15 Radbruch, ‘Der Zweck des Rechts’ (n. 13 above), 50 (trans. R. A.).

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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 cor-

rectness 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, re-

main 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 sec-

ond-order correctness. First-order correctness 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 le-

gal certainty with law.

The principle of legal certainty is a formal principle. It requires a commit-

ment to what is authoritatively issued and socially efficacious. By contrast, the

principle of justice is a material or substantive principle. It requires that the deci-

sion be morally correct. Both principles – as with principles generally,16 may

collide, and they often do so. Radbruch aptly speaks of a ‘lively tension’.17 Un-

like what Kelsen claims for his ‘principle of positivity’,18 neither can ever sup-

plant 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, sec-

ond-order correctness is a matter of balancing. This shows that balancing has a

16 Robert Alexy, A Theory of Constitutional Rights, trans. Julian Rivers (Oxford: Oxford University Press, 2002), 44-110.17 Radbruch, ‘Der Zweck des Rechts’ (n. 13 above), 50.18 Hans Kelsen, ‘Natural Law Doctrine and Legal Positivism’ in Hans Kelsen, General Theory of Law and State, trans. Wolfgang Herbert Kraus (Cambridge Mass.: Harvard University Press, 1945), 389-446, at 402 (trans. al -tered). 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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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 ev-

erywhere in the legal system. Three aspects shall be taken up here: the question

of an outermost border of law, the problem of legal argumentation, and the ques-

tion of whether the principle of correctness leads to an intolerable degree of ju-

dicial activism.

V. An Outermost Border of Law

The dispute about an outermost border of law concerns the question of whether,

as Kelsen maintains, ‘any kind of content might be law’,19 or whether, as the

Radbruch formula says,20 not every injustice but, to be sure, extreme injustice is

not law.21 It is not possible to enter into this debate here. The only point of inter-

est 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 rela-

tion 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: (P1PP2) 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.22

19 Hans Kelsen, Pure Theory of Law, 2nd ed., trans. Max Knight (Berkeley and Los Angeles: University of Califor-nia Press, 1967), 198.20 Gustav Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law (1946)’, trans. Bonnie Litschewski Paulson and Stanley L. Paulson, Oxford Journal of Legal Studies 26 (2006), 1-11, at 7.21 Robert Alexy, ‘A Defence of Radbruch’s Formula’, in Lloyd’s Introduction to Jurisprudence, 8th edn., ed. M.D.A. Freeman (London: Sweet & Maxwell/Thomson Reuter, 2008), 426-43, at 427-8. An explicit rejection of the idea underlying the Radbruch formula is to be found in Hans Kelsen, Introduction to the Problems of Legal Theory, trans. Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon Press, 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’.22 Alexy, A Theory of Constitutional Rights (n. 16 above), 54.

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‘P1’ shall represent the principle of legal certainty, ‘P2’ the principle of justice.

The condition of preference ‘C’ is used in two interpretations. ‘C1’ stands for

‘injustice below the threshold of extreme injustice’, ‘C2’ 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 thresh-

old of extreme injustice:

(1) (P1PP2) C1.

Under the condition C2, that is, in a case of extreme injustice, then, according to

the Radbruch formula, justice, P2, takes precedence over legal certainty, P1:

(2) (P2PP1) C2.

The principle of legal certainty, P1, taken alone, requires that the norm in ques-

tion be valid, that is, that the norm to which ‘Q’ refers be a legal norm. The prin-

ciple 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), ac-

cording to the law of competing principles, implies the rule

(1’) C1 → Q,

which, owing to the conditional precedence of legal certainty, orders the validity

of the incorrect norm, and (2) implies the rule

(2’) C2 → Q,

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

tice 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 the judicial decision introduces a new rule providing for legal cer-

tainty 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.23 Here only the justification ac-

cording to the law of balancing is of interest. The law of balancing reads as fol-

lows:23 Alexy, ‘The Argument from Injustice’ (n. 2 above), 40-62.

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The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other.24

This law of balancing can be developed further by means of the weight for-

mula,25 but this shall 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 sys-

tems, issued before 1945 and before 1989 respectively, to be invalid from the

beginning, that is, null and void.26 With this development, the courts accepted a

compromise where this principle of legal certainty (P1) is concerned. According

to the law of balancing what matters is, on the one hand, how great this compro-

mise is, and, on the other hand, how great the importance of satisfying the prin-

ciple 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 has 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’.27 Because only extreme injustice, and not every instance of injustice,

leads to invalidity, the interference with the principle of legal certainty (P1) can

be described as relatively light. In contrast to this, the interference with the prin-

ciple of justice (P2) would be very serious if the Jewish woman, expropriated for

reasons ‘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 in-

justice is not law (C2 → Q). Thus, the relation of the threshold of extreme in-

justice to the principles of legal certainty and justice speaks for engaging both

principles instead of referring exclusively to legal certainty. Referring exclu-

24 Alexy, A Theory of Constitutional Rights (n. 16 above), 102.25 Robert Alexy, ‘The Weight Formula’ in Studies in the Philosophy of Law. Frontiers of the Economic Analysis of Law, ed. Jerzy Stelmach et al. (Cracow: Jagiellonian University Press, 2007), 9-27, at 25.26 Alexy, ‘A Defence of Radbruch’s Formula’ (n. 21 above), 428-32.27 BGHZ 16 (1955), 350, at 354 (trans. R. A.).

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sively to legal certainty would imply the rejection of the Radbruch formula. En-

gaging 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 Ger-

man 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 evalua-

tive indeterminacy. Rather, the decisive point is whether rational arguments for

and against a subsumption under the concept of extreme injustice are possible.

This is the case, but it cannot be elaborated here.28

VI. 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 of whether an in-

terplay 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 weak-

nesses of the principle of legal certainty, too. They stem from what H.L.A. Hart

has described as the ‘open texture’ of law29 and Kelsen as the character of law

qua frame that has to be filled by the law-applying act.30 There exist several rea-

sons for this necessary openness of law. Of special importance are, on the one 28 Robert Alexy, Mauerschützen (Hamburg: Vandenhoeck & Ruprecht, 1993), 29-30.29 H.L.A. Hart, The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994), 128.30 Kelsen, Pure Theory of Law, 2nd ed. (n. 19 above), 349-50.

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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, the discrepancy be-

tween the wording of a norm and the intentions of the law-maker, and, on the

other hand, the ‘multifariousness of life’.31 The principle of legal certainty de-

mands from the law-maker that the openness of law be kept to as minimal a de-

gree as is possible. This demand, however, can always only be fulfilled incom-

pletely.

Decisions that fall within the open sphere of positive law cannot, by defini-

tion, 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 the other than legal standards, and this according to his

own discretion, much in the fashion of a legislator.32 Kelsen emphasizes that this

discretion is a ‘free discretion’,33 and he stresses that all possibilities within the

open sphere of positive law are ‘of equal value’.34 The latter might be called the

‘equal value thesis’. According to Kelsen, the situation we face here could not

be different, for the determination of the frame alone is properly deemed a mat-

ter of interpretation qua cognition.35 In contrast, to fill in the frame is ‘a function

of the will’.36 If one were to understand the filling in of the frame as cognition,

one would thereby succumb to what Kelsen designates as ‘illusion of legal cer-

tainty’.37

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

31 BVerfGE 126, (2010), 170, at 195 (trans. R. A.).32 Kelsen, Pure Theory of Law, 2nd ed. (n. 19 above), 353-5; Hart, The Concept of Law (n. 29 above), 135.33 Kelsen, Pure Theory of Law, 2nd ed. (n. 19 above), 349 (trans. altered).34 Ibid., 351.35 Ibid.36 Ibid., 353.37 Hans Kelsen, Introduction to the Problems of Legal Theory (n. 21 above), 84.

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that legal discourse is a special case of general practical discourse.38 Legal argu-

mentation, like general practical argumentation, is, in the end, always 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 cor-

rectness 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 for-

mula, one could say that legal argumentation is committed to statute and prece-

dent and has to take into account the system of law elaborated by legal dogmat-

ics. These commitments are expressed by the specific rules and forms of legal

discourse.39

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 func-

tion of the will is a clear expression of a decision model. The exercise of discre-

tion concerns exclusively an ‘act of will’,40 that is, a decision. Kelsen couples

the decision model with the cognition model. In doing so, he restricts the possi-

bilities 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’.41 A cognition model that claims to be able ‘always

[to] supply only one correct decision’42 is rejected by Kelsen, so to speak, antici-

38 Alexy, ‘Hauptelemente einer Theorie der Doppelnatur des Rechts’ (n. 8 above), 163.39 Alexy, A Theory of Legal Argumentation (n. 6 above), 300-2.40 Kelsen, Pure Theory of Law, 2nd ed. (n. 19 above), 354.41 Ibid., 355.42 Ibid., 351.

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pating Ronald Dworkin’s more recent one-right-answer thesis.43 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 weak-

nesses 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 applica-

tion. 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 ar-

gument takes a look at the democratic constitutional state, which is a postulate

of the dual nature thesis, too.44 It is a necessary and essential element 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.45

43 Ronald Dworkin, ‘No Right Answer?’ in Law, Morality, and Society, ed. P.M.S. Hacker and Joseph Raz (Oxford: Oxford University Press, 1977), 58-84, at 61.44 Alexy, ‘The Dual Nature of Law’ (n. 1 above), 177-8.45 Alexy, A Theory of Constitutional Rights (n. 16 above), 351-365.

14

This implies that the open sphere of positive law below the level of the constitu-

tion is by no means empty. Thus, the special case thesis as a general argumenta-

tion-theoretic thesis is joined with the theory of constitutional rights in the form

of principles theory. The consideration of constitutional rights in the interpreta-

tion and application of the law requires balancing according to the rules of pro-

portionality. Balancing, a motif that cannot be elaborated here,46 is a form of ra-

tional argumentation. With that, it is again argumentation and the claim to cor-

rectness connected with it that are decisive. Naturally, here, too, there exist un-

certainties and there exists, above all, discretion.47 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 suf-

fices 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 cer-

tainty. 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 thesis of the ‘illusion of legal certainty’48 has to be re-

jected to the extent, that the connection achieves this. Legal certainty is not an

illusion to the degree correctness is not an illusion.

VII. 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 46 Robert Alexy, ‘The Construction of Constitutional Rights’, Law & Ethics of Human Rights, 4 (2010), 20-32, at 27-32.47 Robert Alexy, ‘Verfassungsrecht und einfaches Recht – Verfassungsgerichtsbarkeit und Fachgerichtsbarkeit’, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, 61 (2002), 7-30, at 15-30.48 Kelsen, Introduction to the Problems of Legal Theory (n. 21 above), 84.

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law is determinate or clear. Decisions against the wording of statutes and the

will of the law-maker would become possible. And with that, contra legem deci-

sions would no longer be excluded. The door would also be open to other forms

of the judicial development of law.49 All this, however, would count as an intol-

erable loss of legal certainty.

This argument would be cogent if the connection of legal certainty and cor-

rectness 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, how-

ever, is by no means the result of the connection. Kelsen’s thesis: ‘Even the

statute that is bad in the view of the law-applying authority is to be applied’,50

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 gen-

eral competence of the law-applying authorities to control the correctness of

content would interfere disproportionately with legal certainty. For this reason, a

prima facie priority of the authoritative or institutional side is necessary. This

applies to statutes as well as to precedents. The dual nature thesis requires, how-

ever, that this priority – with the exception of some areas like penal law, gov-

erned by the maxim nulla poena sine lege – not be absolute. This would be in-

compatible 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.51

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

49 On a distinction of four forms of the development of law, see Robert Alexy, ‘Juristische Interpretation’, in Robert Alexy, Recht, Vernunft, Diskurs (Frankfurt-on-Main: Suhrkamp, 1995), 71-92, at 91.50 Kelsen, Introduction to the Problems of Legal Theory (n. 21 above), 85.51 Alexy, A Theory of Legal Argumentation (n. 6 above), 248.

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certainty and correctness. In any case, the main outlines are recognizable, con-

necting the Radbruch formula with the rule on the burden of argument just men-

tioned. It is the idea of the over-arching prima facie precedence of the authorita-

tive or institutional dimension, that is, the principle of legal certainty, over the

principle of correctness of content or justice.