SOPhiA 2021

Salzburgiense Concilium Omnibus Philosophis Analyticis

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Programme - Talk

A Normative Argument for the Separation of Law and Morals
(Metzler Lecture, English, Location: HS E.002)

A The issue of how to understand the relation between law and morality has divided legal theorists: Legal positivists hold that there is no necessary connection between law and morality. The validity of legal norms and statutes does not depend on their fulfilling standards of morality. Proponents of a natural law theory, however, claim that legal systems which violate basic demands of morality and justice cannot qualify as genuine law. They are, as John Finnis puts it, "peripheral" and "watered-down versions" of the central cases of law. According to natural lawyers, proper law exceeds at meeting standards of justice and is oriented towards realizing the common good. While legal positivists consider law and morality as distinct normative spheres (the so-called separability-thesis), natural law theorists think it essential that law and morality are internally connected. A test case for these divergent approaches to law has been the existence of evil legal systems. Positivism, as critics maintain, cannot say more about such systems except that they disqualify morally. Since positivists read "legal validity" in a descriptive sense (legally valid norms are actually given legal norms, i.e., norms that are de facto in force), they seem to lack the resources for criticizing wicked law on legal grounds. Natural law theorists, on the other hand, assuming that viable law is internally linked to morality, tend to question the validity of wicked legal systems altogether. However, as their positivist opponents object (rightfully in my mind), such a critique can merely probe the legitimacy of wicked law, but not its being actually in force, exercising authority over its subjects. In my talk I am going to assess this controversy by taking a closer look on one notorious evil legal system: National Socialist law. I will focus particularly on how legal theorists who aligned with the Nazi regime conceived the relation between law and morality. My thesis is that the call for a unification of law and morality, as it is common in NS legal theory, supports a separation of law and morality on normative grounds. To draw a line between law and morality is, as the experience with National Socialism vividly shows, indispensable for setting limits to state power. However, such a normative argument for keeping law and morality apart does not deny any connection between the two spheres. Rather, the example of National Socialist law invites us to find a way of translating our historical and moral insights about the structure and working of an evil legal system into normative requirements concerning the form of law. Such formal requirements, which are situated between law and morality and constitute a crucial part of the rule of law, allow us to criticize and reject bad and wicked law not only on moral, but also on legal grounds. One particular focus of my talk will be to explicate in more detail how to understand the suggested "translation" of moral insights about failed legal systems into normative requirements of a "thin" conception of the rule of law, explaining also why in the case of an ideological moralization of law a normatively "thin" rather than a "thick" account of the rule of law seems appropriate.

Chair: Stephen Müller
Time: 14:00-15:30, 10 September 2021 (Friday)
Location: HS E.002

Herlinde Pauer-Studer 
(University of Vienna, Austria)



Testability and Meaning deco