Whose Experience Is the Measure of Justice?

Sociology of Law, Lund University, Lund, Sweden



The previous chapters highlighted the epistemic tensions between the approaches of traditional legal scholarship and jurisprudence, on the one hand, and sociology and socio-legal research, on the other. They also described some of the sharply defined distinctions made between ‘law in books’ and ‘law in action’, ‘positive law’ and ‘living law’, ‘facts’ and ‘norms’ and the ‘internal’ and ‘external’ operations of the law. This chapter continues to probe the dual conceptualisations of the law by examining Robert Alexy’s theory of legal argumentation and his idea of ‘law’s claim to correctness’, which represent an attempt to bridge one the intractable dichotomies of the law, namely the gap between positive law and justice.

This chapter is a revised and updated version of ‘Whose Experience is the Measure of Justice?’ In: (2008) Legal Ethics 10(2): 209–222.

Western liberal law is essentially contradictory and antinomial, so that legal concepts, troubled and oppositional, generally hunt in pairs. Norrie (2005, p. ix)

Alexy’s (1978, 1985, 2000, 2002) theory of legal argumentation is amongst the notable contributions made to mainstream jurisprudence in the last decades. Remaining true to its rational discursive mission, it engages with both analytical positivism and natural law theories. This chapter attempts to examine some of the legal philosophical debates surrounding Alexy’s work from a socio-legal standpoint. Moreover, by examining the complexity of the relationship between law and justice, it presents and critiques the ‘separation thesis’ that informs various schools of legal positivism. Therefore, in the following pages special attention is paid to positive law’s attempts to separate facts from values, law from morality and legal certainty from justice. The roots of these dichotomies, or antinomies as they are also called, in order to highlight their one-sided oppositional character (cf. Norrie 2005), can be traced back to the Enlightenment and beyond (Barton 1998).1 Using the debate on Alexy’s thesis that Western liberal law cannot help but raise claims to moral correctness, this chapter will bring into focus the continued efforts of mainstream jurisprudence to employ antinomies to organise itself—a task which it performs not so much by studying the empirical manifestations of the law but more so by conceptually containing the duality of positive law within an essentially rationalistic discourse.

Before we turn to the specifics of Alexy’s thesis, it is perhaps helpful to gain a general conception of the theoretical assumptions that inform the approach of this chapter. Therefore, Sect. 1 presents the theoretical background against which I have read the debate on Alexy’s theory of legal argumentation. I have explored the role of dichotomies in socio-legal research elsewhere (cf. Banakar 2003), but in the following pages I shall employ Alan Norrie’s critical examination of antinomies to throw light on some of the shortcomings of Alexy’s theory and also to discuss the concerns of mainstream jurisprudence. Thus, this chapter presents both Norrie’s study of antinomies and Alexy’s thesis on ‘law’s claim to correctness,’ using the former to assess the latter critically. Section 2 brings into focus Alexy’s central thesis, while Sect. 3 discusses the duality of law, exemplified by the attempts of mainstream jurisprudence to cope with the tension between the positivist notion of law and the idea of justice. Section 4 concludes the chapter by reflecting on some of the implications of Alexy’s thesis.

1 The Ethical Form of Judgement

In Law and the Beautiful Soul (2005, p. 5), Alan Norrie recognises Western liberal law’s progressive ethical capacity, acknowledging that despite its failings it has the potential to provide ‘a limited and ambivalent experience of justice’. He also argues that the law has ‘significant structural limits and complexities’ (Norrie 2005, p. ix) which make it oblivious to its flaws, thus undermining its ethical force. Being ‘antinomial’, positive law differentiates itself conceptually into parts which, once viewed from a historical standpoint, are inseparable from each other. That is why liberal law establishes a legal foundation for ‘the right’, which does not necessarily need to be ethically valid.2 Expressed differently, ‘the good’ is no longer treated as the necessary attribute of the legality of rights. Yet, paradoxically, the promise of ‘the good’, ethically correct judgement and, ultimately, the expectation of justice remain an integral part of the way law is perceived by most people. It is also, as Alexy would maintain, an important part of law’s claim whereby it is part of law’s self-identity and the way in which it organises and presents itself. Admittedly, modern law does not live up to the ethical standards of the Beautiful Soul, but it does not refute the promise of ethically-based judgements either. To dismiss law’s promise of ‘the good’ and its claim to justice as part of its rhetoric (or its ideological domination) misses the role these judgements play in challenging its operations and subverting its ‘objective’ methods of decision-making. To deliver the promise of ‘the good’ enshrined in liberal law, the law has no alternative but to go beyond its own normative boundaries, objective methods and institutional constraints.

In Chap. 11, we shall discuss how law, morality and justice have developed historically as a fundamental part of the normative structures of human community (cf. Barden and Murphy 2011). It suffices here to point out that law and justice have emerged hand in hand as the normative elements of social organisation, and their interdependence continues to be reflected in ordinary men and women’s conflation of law and morality and their expectation that legal processes deliver justice. It was first through the rise of positivism that law and justice were separated from each other conceptually and treated as different categories. This process of forced separation, which took shape as law was transformed into a modern rational system, may be examined as an integral part of the separation of the system from the lifeworld, to borrow a pair of concepts from Habermas (1984), which by itself is unproblematic until the instrumental rationality of the former dominates the latter and reshapes human relations. The rise of modern social systems as autonomous spheres of social action therefore generates a series of one-sided, often false oppositions which invade the sphere of law as a set of antinomies, instances of which are found in legal theory in the separation of the universal from the particular, the formal from the informal, the factual from the ideal and the individual from the collectivity to which he or she belongs (cf. Norrie 2005, p. 183). In essence, these antinomies expose the conflicts that are embedded in the socio-historical constitution of modernity, and although liberal law is ethically constrained by them, it nevertheless ‘plays a central role in structuring, shaping and limiting the ethical possibilities in Western liberal societies’ (Norrie 2005, p. ix).

The contradictory elements of law are generated partly by attempts to guide action in various contexts by reference to abstract ahistorical criteria, while the institutions of law remain tied up to socio-historically-defined social relations. Law has to ignore and deny the relevance of its socio-historical ties, especially if it is to appear as an internally coherent system of rules, doctrines and decisions capable of operating autonomously. That is why theories of legal positivism describe the totality of law in terms of legal rules and doctrine, which are employed to guide the practice of law, while ignoring the broader social contexts in which rules and doctrine need to be interpreted before they are transformed into legal practice. By overlooking the significance of the broader social and historical context out of which not only legal practice but also institutions of law have emerged, legal positivism obscures and mystifies the relationship between legal practice and the societal context of law (Norrie 2005, pp. 20–31). To unpack this notion, Norrie refers to the idea of the ‘legal subject as a responsible agent,’ which is represented by doctrines such as mens rea and actus reus. He argues that liberal theory, which underpins the subjective principles of criminal law, ‘affirming the need for intention, foresight, knowledge and belief concerning actions and their consequences,’ is highly individualistic and atomistic (Norrie 2005, p. 53). Not even the atomised liberal understanding of human action can completely ignore society, which is why the above account of social action is restricted by recognising the need for mutual cooperation. Liberal law abstracts agency from ‘the context of social conflict and deprivation which generates crime’ and excludes ‘that context from the judicial gaze’ (Norrie 2005, p. 30). Furthermore, it provides a partial and mystified image of the individual and society that allows and justifies an individualised relationship between legal and moral judgement. According to Norrie (2005, p. 149), we need to take into consideration ‘both mediation of agency by structure and the reproduction and transformation of structure by agency,’ while recognising the intractably interwoven empirical manifestations of this (structuration) process. In other words, structure and agency are produced and reproduced through the same complex social process.

The notion of justice, as it is deployed in the following pages, is also linked to Norrie’s general approach and refers to the ethical form of judgement that lies beyond the domain of positive law. This understanding of the concept of justice is in turn informed by the figure of the Beautiful Soul, a product of the European Enlightenment, which raised the ‘possibility of combining moral virtue and aesthetic value in the perfection of lived human being’ (Norrie 2005, p. 2). Somewhat oversimplified, it is the leading ethical ideal of the Enlightenment that morality necessarily requires a rational basis, the unification of emotion and reason. However, this ideal of ethical perfection and ‘the possibility in the here and now of attaining the morally good life’ (Norrie 2005, p. 2) was soon suspected of accommodating latent negative properties. In the early writings of Hegel (1948, p. 240), the figure of the Beautiful Soul represents ‘boldness and confidence of decision about fullness of life,’ capable of maintaining ‘a loving heart in the face of the conventional existence of one’s people’ (Norrie 2005, p. 3). Hegel changed his view of the Beautiful Soul from ‘admiration to outright rejection,’ from the idea of a ‘morally full life’ to a life which was ‘empty,’ ‘hollow’ and ‘impotent’ (Norrie 2005, p. 3). We observe this shift of attitude in the ambiguous assessment of the Beautiful Soul in contemporary society. Modern society, on the one hand, looks down on the virtuous action, dismissing and suppressing it as dangerous, fanatical, hypocritical or unrealistic, while, on the other hand, praises it for its principled conviction. The figure of the Beautiful Soul assumes an ideal metaphysical form—the promise of things to come—and persists against all odds because the institutions of modernity, such as private property and law, ‘cannot sustain or actualise its radical moral implications’ (Norrie 2005, p. 180).

By separating and compartmentalising ‘the right’ or forms of freedom from ‘the good’ or the radical form of ethics, liberal law embodies and reproduces the rise and demise of the Beautiful Soul. The promise of ‘the good’ and human perfectibility, the most radical promise of the Enlightenment, which the liberal law embodies is constantly contained and repressed at the expense of the attempt to produce a legally valid modern notion of ‘the right’:

This work of expression on the one hand and repression on the other is signposted by the pathologies of antinomialism that bedevil liberal thought and which reach into the finest points of its law. The chain of antinomies begins at the edge of law, in opposition between “the ideal” and ‘the actual’, and between “social” and ‘the individual’ justice. It reaches into law’s foundations, through lines drawn between the “internal” and the “external”, the ‘formal’ and the “substantive”, and the “universal” and the “particular”… [W]hat these antinomies bespeak, I argue, is confusion and dis-ease in thought, in practice, in law. (Norrie 2005, p. x)

In short, liberal law ‘contains and represses a radical sense of “the good” in order to produce a modern sense of “the right”’ (Norrie 2005, p. X), which causes a disjunction between the political and ethical basis for ‘the right’ that modern liberal law establishes and ‘the good’ that it promises. In order to deliver ‘the good’, Norrie argues, law has no alternative but to go beyond itself, beyond its own structural limits and complexities. Legal positivism responds to this challenge by containing conceptually the contradictory concepts and ideas embedded in liberal law. Norrie, on the other hand, seeks a middle way, using a dialectical approach in order to not only avoid reproducing the antinomies, but also to go beyond their decontextualising effects.

This is the theoretical background against which I have explored the legal philosophy of Robert Alexy in an attempt to maintain a semblance of the Beautiful Soul.

2 Law’s Claim to Correctness

Although there are similarities between Alexy and Norrie, there are also differences separating their viewpoints. While Norrie’s dialectical approach is rooted in the Hegelian tradition, Alexy’s emphasis on rational discourse is a neo-Kantian construct which we also find in the works of his German contemporaries such as Habermas (1984). Alexy was also deeply influenced by Gustav Radbruch’s famous ‘formula’, which brought into focus the conflict between positive law and justice (cf. Radbruch 1946), or the requirements of legal certainty, on the one hand, and the needs of justice and expediency, on the other (Bix 2011, p. 48). According to Radbruch, when conflict arises between the principle of justice and positive law, the court should maintain legal certainty and security (ultimately opting for social order) by applying the rules of law, even when their application results in injustice. The logic underpinning this position is deceptively simple: there can be no justice without social order. For Radbruch justice is the core value of law, which means that positive law cannot be granted total primacy over the requirement of justice and yet, paradoxically, social order must be prioritised if justice is to be realised. Therefore, law is best described as the search for the balance between justice, security and certainty (order), and social utility (cf. Cotterrell 2013, p. 516). In his ‘reflections around Radbruch’, Roger Cotterrell explains this point:

Even where the judge cannot do justice through law, there is an obligation to serve the value of order which demands certainty in legal doctrine and predictability in legal decisions. Doing justice and pursuing aims through law presupposes law’s stability. To that extent, providing order is the first task of the law. (Cotterrell 2013, p. 516)

However, Radbruch also maintains that extreme injustice is not law. If the applicable rule of law diverges considerably from the needs of justice, thus causing grave suffering, law’s requirements of order, which is the prerequisites for justice, cannot be upheld. It also means that the law in question is flawed and lacks the essence of legality (Radbruch 1946, p. 107 and Radbruch 1990). Bix (2011, p. 50) clarifies how this point informs Alexy’s legal theory:

Radbruch’s Formula(s), and his conception of law, are based on the notion that people may not expect their legal system to be uniformly just and fair, but there is an expectation of minimal justice that comes with the notion of “legality.” This view—especially as it appears in the less well known second version of Radbruch’s Formula (that to be legal the rules must at least “make an attempt at justice”)—could be translated into Robert Alexy’s well-known assertion: “Every legal system lays claim to correctness”.

When in its deliberation the law intentionally disregards any consideration of equality—the core of justice—it invalidates itself as a legal system. Thus, the occasional failures of the legal system to deliver justice do not legally invalidate it per se, as long as it has attempted to achieve just outcomes and does not generate extreme forms of injustice or cause grave suffering. As Bix has observed, Alexy’s theory may be viewed as the defence of a version of Radbruch’s formula:

[…] offering arguments for it that are different from and more sophisticated than those that were adduced by Radbruch himself. Alexy also placed Radbruch’s formula within a larger context of conceptual analysis and theories about the nature of law. Both Radbruch and Alexy claim that their positions are incompatible with legal positivism, and therefore count as a rejection (and perhaps refutation of it). (Bix 2006, p. 139)

Alexy’s work attracted attention outside Germany in the 1980s with the publication of the English translation of his doctoral thesis on legal argumentation (see Alexy 1985). His starting point—that legal discourse is a special case of moral discourse—is neither new nor original in itself. However, Alexy adds that moral correctness is an intrinsic property of the law and legal argumentation, and it exists at the level of the legal system and legal institutions and at the level of individual laws and decisions which constitute the legal order (cf. Mcilroy 2013). This idea should be explored against the backdrop of Radbruch’s legal theory (1946) and Jürgen Habermas’s discourse ethics (1984). Both Radbruch and Habermas, each in his own way, regard law to be necessarily connected with justice. Radbruch explained the link between justice and legal certainty by arguing that ‘every legal system contains a legal rule, which overrides all others, which directs judges to disregard unjust rules even if they are law’ (Raz 2007, p. 29).3 This means, firstly, that positive law which produces grossly unjust results is not valid and, secondly, that the application of positive law requires making moral judgements as to the content and consequences of the law. However, Radbruch does not necessarily discard the basic assumptions of legal positivism, including the ‘separation thesis’, concerning moral judgements which can be expressed in terms of legal norms that override other norms.

Alexy also argues that law necessarily raises a claim to correctness. This proposition suggests a theoretical affinity with Karl-Otto Apel and Jürgen Habermas’s primary thesis that the speech act raises various validity claims.4 As Alexy (2007a, p. 358) explains to one of his critics:

Discourse theory is an essentially universalistic theory. It claims, first, that all human beings participate (apart from unusual circumstances) in the practice of asking, asserting and arguing; secondly, that this practice necessarily presupposes universals of reasoning that can be expressed by rules of discourse; and, thirdly, that the practice of discourse is oriented towards truth or correctness as regulative ideas.

Both Alexy and Habermas share the conviction that ‘law consists of more than pure facticity of power, orders backed by threats, habits, or organized coercion’ (Alexy 2000, p. 138). Besides possessing a factual side, law also comprises ‘a critical or ideal dimension,’ which is defined by a ‘claim to correctness’5 or, to borrow Habermas’ terminology, a ‘claim to legitimacy’ (Cooke 2007, p. 225),6 a claim which when made by law also entails making a claim to justice, operating as the defining property of a legal system. A normative system that fails to raise the claim to correctness, according to Alexy, is not a legal system but a system of ‘power, force and coercion beyond the categories of correct and wrong, and just and unjust’ (Alexy 2000

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