Keen's problem: how to prevent the invasion of judicial decision-making by politics and morality?

  • Seperation of law as it is from law as it ought to be.
  • Interpretation of law according to its letter and plain meaning.

Hart and Britisch legal positivism:

  • Identification of valid law according to the rule of recognition.
  • Interpretation of law according to its social (not necessarily moral!) prupose.

Habermas and proceduralisation of law:

  • Procedural understanding of law that combines positive validity (legality) with moral validity (legitimacy).

Norm jurisprudence.

Herbert Hart and British Legal Positivism:

Grudge Informer Cases: was the Nazi law as interpreted by Nazi Courts law? Punishment of informers and judges post-war?

Radbruch: formula of legal injustice:

  • Appeal to morality to invalidate Nazi law.
  • Judges should disregard positive law is there is an intolerable conflit with justice.

Hart: seperation of law and morality:

  • Nazi law, while immoral, was legally valid.
  • Duty of judges to faithfully apply and enforce the positive law.
  • Post-war retroactive criminal leglislation to punish the grude informers and judges.

Hart's critique of Radbruch: Radbruch confuses the distinction between law and morality: the informers and judges acted in breach of morality and not law. By denying legal status to immoral law, Radbruchs damages the integrity of both law and morality:

  • Danger that law and its authority may be dissolved in man's conceptions of what law ought tot be.
  • Danger that existing law may supplant morality as a final test of conduct ans so escape critism.

Separation of law and morality and the legal problem of legal validity: law derives its validity not from morality, but from commands of a political sovereign supported by sanctions on those who disobey. John Austin - command theory.

Separation of law and morality and the problem of legal interpretation:

  • Keen: insistence on the application of the law according to itts letter and plain meaning.
  • Legal formalism: treats law as a closed and gapless system of rules that can be applied logically without help of policy or moral considerations. Analogy to natural sciene and mathematics: the solution can be logically deduced from a legal rule.

Harts critique on Austin's command theory: law cannot be reduced to commands and sanctions. Many legal rules do not stipulate commands. People often observe rules not because of fear of saction but because of habituation or because they think that it is right to de so.

Harts critique of legal formalism: the interpretation of law is not a mechancal process. Judges must decide whether certain facts can be subsumed under a given rule. Rules are susceptible to different interpretations.

Bur Hart insists on the seperation of law and morality.

  • Morality van have legaal force if the competent authority has converted a moral rule into a legal rule. But, the validity of law is grounded in social facts and not morality, and valid law van be moral of immoral.
  • In the penumbra of legal rules, judges van interpret the law according to its social purpose. But, such interpretation merelt consists of discovering purposes inheret in the law that need not be defensible on moral grounds. Law van pursue the most evil aims.

Hart: how can we identify valid law?

  • Law as a social fact. Law is created by human agents for the purpose of self-government.
  • Law is a union of primary and secondary rules of obligations:

o Primary rules (rules of the game): rules governing conduct considered binding and enforceable in society.

o Secondary rules (rules for the game): rules governing the creation, adjudication and enforcement of primary rules.

Hart: how should law be interpreted?

  • Distinction between the settled meaning and the penumbra of a legal rule.

o Standard cases that can be decided according to the settled meaning of a legal rule. o Exceptional cases that fall within the penumbra of a legal rule and must be decided with reference to the social purpose of the law.

Juergen Habermas and proceduralisation of law:

Critical theory of the early Frankfurt School. Tendency in modern societies towards instrumental rationality that leads to social domination. Habermas: emancipatory and constructive notion of rationality (Kant & Enlightenment).

  • Idea of inclusive critial discussion, free of social and economic pressures, in which participants treat each other as equals in an attempt to reach an understanding on common concerns.
  • Discourse: argumentative dialogue at the foundation of democracy, morality and law.
  • Law is the product of argumentative dialogue and creates the conditions for argumentative dialogue.

Habermas rejects:

  • The natural law appeal to a higher moral law.
  • The positivistic seperation of law and morality.

Legality: law is posited by the law-maker and backed up by state sanctions.

Legitimacy: citizens can comply with legal rules out of respect for the law. Moral acceptance of law. Citizens are both the authors and addresses of law. Moral legitimacy of modern law is rooted in the legitimacy of the democratic process. Citizens define the moral content of legal human rights in the democratic process. Judges do not adjudicate on the moral content of human rights.

Kontaksperre and Habermas: liberal state (negative rights) versus welfare state (positive rights). From negative and positive rights to negative and positive liberties. From value jurisprudence to norm jurisprudence.

Benjamin constant: freedom of the morderns: negative liberties to individual freedom and self­determination (private autonomy). Freedom of the ancients: positive liberties in the definition of the public goods (public autonomy).

  • Liberalism: priority of human rights to prevent the sovereign will of the people from encroaching on inviolable spheres of individual freedom.
  • Republicanism: priority of popular sovereignty to enable citizens to participate in the definition of the ethical sels-understanding and sovereign self-determiniation of the political community.





Private individual

Public citizen


Negative liberties

Positive liberties


Distribution of rights

Reciprocal recognition of rights


Rule of law


Human rights as values versus as norms”


  • Preferences that indicate that a community considers some goods more important than others, relative weight.
  • Involve weighting and negotiation. More - or - less.


  • Preferences that considered so important that they are elevated into the status of, and protected as, norms. Absolute weight.
  • No weighting or negotiation. Either -

The consitutions as system of procedural rules. Constitutional Court as the guardian of the democratic procedure through which human rights are defined.

Separation of law and morality:

  • Keen: court should take a legal as opposed to a moral decision.
  • Hart: there is no necessary connection between law and morality.
  • Habermas: morality enters the law through the democratic process.

Separation of powers:

  • Keen: literal interpretation (the letter of the law).
  • Hart: distinction between core and penumbra if a legal norm.
  • Habermas: constitutional norm jurisprudence.