'Radbruch’s Rechtsstaat and Schmitt’s Legal Order: Legalism, Legality, and the Institution of Law' by Mireille Hildebrandt in (2015) 2(1)
Critical Analysis of Law is described as an
article that
forages the fruits of Radbruch’s Legal Philosophy of 1932, taking into account
his writings after the horrors of National Socialism in Germany. This contribution builds
on the findings of my chapter concerning Radbruch’s inquiry into the origins of the
criminal law, in Foundational Texts in Modern Criminal Law. In that chapter I present the rise
of the sovereign state as a precondition for a Rule of Law that institutes a balancing act
between the different powers of the state. In the current article I briefly present the rise
of the Rule of Law in the course of the nineteenth and twentieth centuries, exemplified
by the rise of the German Rechtsstaat, the French État de Droit and the Anglo-American
Rule of Law. This provides the background for a discussion of the contribution that
Radbruch’s antinomian concept of law can make to a better understanding of the
difference between legalism and legality. I argue that a mistaken view on legality informs
the prevalent confusion around the notion of the Rule of Law. The investigation is
complemented with the introduction of a procedural conception of both law and the
Rule of Law, taking the discussion beyond formal and substantial conceptions of both.
Finally, I integrate an analysis of Schmitt’s keen attention to the institution of law,
observing that legalism and legality align with different institutionalizations, different legal
orders and different modes of existence of law and the Rule of Law.
Hildebrandt comments
Radbruch’s legal philosophy is a complex refinement of a particular strand of neo-Kantian
philosophy, which understands concepts such as law, state, punishment, or property as
inherently value-laden concepts. Radbruch believes that such concepts can only be
properly understood if they are related to the idea that informs them. Contrary to
rationalist natural law thinkers this idea is not a universal value that can be defined outside
the context of its inception. For Radbruch these concepts are Kulturbegriffe (cultural
concepts) that describe a value-laden reality, and the task of the legal philosopher is to
clarify the values that give meaning and significance to the reality they inform. Radbruch’s
antinomian conception of law shows that law in a constitutional democracy is a
fundamentally contradictory phenomenon that implies a reiterative balancing act between
the values of legal certainty, justice and expedience. The shifting emphasis on either of
these values is not arbitrary but operates on the nexus of the concept of law, the idea that
gives direction to its interpretation, and on the societal needs these values serve.
Radbruch’s postwar emphasis on justice as potentially overruling legal certainty has led
some to interpret his postwar writings as a return to natural law and a change in his
position. However, in his seminal text on the origin of criminal law of 1938 Radbruch
already found that the arbitrary power of the pater familias to punish his serfs entailed that
the jurisdiction within the household of the pater familias should be understood as a prelegal
order, closer to administration than to law. In line with this, we should expect that
insofar as absolute sovereignty allows for arbitrary rule, Radbruch would have qualified it
as a non-legal order, even before his experience of Nazi brutality.
In this article, my aim is to uncover the added value of Radbruch’s understanding
of law for contemporary debates on both law and the Rule of Law. First, I will briefly
present the rise of the Rule of Law in the course of the nineteenth and twentieth
centuries, exemplified by the rise of the German Rechtsstaat, the French État de Droit and
the Anglo-American Rule of Law. This provides the backbone for my discussion of how
Radbruch’s antinomian concept of law helps to better understand the difference between
legalism and legality. In fact, I often find that legality is defined as legalism, and I believe
this triggers the prevalent confusion around the notion of the Rule of Law. Building on,
for instance, Waldron, I will argue that we need a procedural concept of both law and the
Rule of Law, to get a better picture of the difference between legalism and legality, taking
the discussion beyond the dichotomy of formal and substantial conceptions. Finally, to
substantiate the pivotal role of procedure, I integrate an analysis of Schmitt’s keen
attention to the institution of law, observing — however — that legalism and legality align
with different institutionalizations, different legal orders and different modes of existence
of law and the Rule of Law.
She concludes
It is clear that for Radbruch the artificiality of
positive law is not a problem to be solved, but a consequence of the concrete
incompatibility of the aims of the law, coupled with the fact that people will not agree on
what should be the purpose of their society, collective or community. The artificiality is a
productive, creative outcome of human adversity. The constructive nature of law - from
Radbruch’s perspective - does not concord with a legal positivism that reduces law to the
legal certainty of positive law (what Schmitt saw as the hybrid concoction of normativism
and decisionism). On the contrary, the challenge to compatibilize the aims of positivity
with those of justice and instrumentality is what triggers construction and reconstruction.
This is an ongoing process and it cannot be taken for granted - as Radbruch testified after
his experience of Nazi rule. At some point, the lawyer - whether judge or legislator - must
acknowledge that the procedural enactment of legal code or case law fails to even aim for
justice and legal certainty and instrumentality. At that point the lawyer is called upon to
decide on the exception: to deny validity to what looks like positive law. Not because of
her own moral preferences but because law has been separated from the values that
enable us to qualify a statute or verdict as law.
The productive nature of artificial, positive law, however, does not, in itself,
protect individual citizens against injustice. Even if artificial law is explained in terms of
the choices that must be made when justice and legal certainty, or justice and
instrumentality, or legal certainty and instrumentality are incompatible in concrete
situations, we need institutional arrangements to see to it that reasonable choices are
made. We need to make sure that such incompatibility is not used as an argument to push
for an agenda that allows for decisions with a bias against vulnerable adversaries or,
simply, for decisions biased to protect the interests of already privileged groups. This
requires a situation établie with effective countervailing powers, checks and balances, and
equitable procedures. Contrary to Schmitt’s suggestion, this situation établie cannot be
understood and preserved on the basis of its concrete reality; to be sustainable it requires
keen attention to the normative framework it embodies and the backing of sovereign
power. Norm, decision and institution are mutually constitutive or interdependent. On
top of that, to qualify as law, their interplay should vouch for the ends of justice, legal
certainty and the law’s own instrumentality, in all modesty.
