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RECHTSTHEORIE 44 (2013), S. 1-28
Duncker & Humblot, 12165 Berlin
THE LAW - MORALITY CONUNDRUM:
ON THE MULTIFACETED SOURCES OF NORMATIVITY
By Oles Andriychuk, Stirling*
I. Introduction
Legal positivism has been ascribed many vices. Among other perils its
critics observe the mechanistic narrow-mindedness of positivism which
often enables wicked regimes to abuse the authority and consistency ar-
guments for committing atrocities in the name of law and order. This
type of criticism is of direct concern to this paper. It addresses the sub-
stance of what is known as Radbruch's formula: even though in plain
cases law can contradict some principles of morality, if the law is ex-
tremely unjust it should not be applied/it cannot be considered as law at
all. The paper analyses its implications for the legal doctrine, assessing it
from the perspective of the addressees of this formula.
I assume that the question of il-/legality of manifestly unjust laws is
the core of theoretical divide between exclusive legal positivists (I will
also use the terms exclusivists and exclusivism) and the rest of legal
scholarship, agreeing with Robert Alexy that '[o]ne who accepts the the-
sis that extreme injustice is not law has bid farewell to positivism'.
Although the paper is written from the perspective of exclusivism, its
primary purpose is not in defending the main positivistic argument
rooted in the separation thesis.2 I do accept it as the fundamental objec-
tive ([t]he existence of law is one thing; its merit or demerit is an-
* I am grateful to Daniel Priel, Gavin Little, Axelle Reiter, Dov Jacobs and Da-
vid Reader for their comments on an earlier version of this paper.
1 R. Alexy, An Answer to Joseph Raz, in: George Pavlakos (ed.), Law, Rights and
Discourse: The Legal Philosophy of Robert Alexy, Oxford 2007, p. 51. I avoid ad-
dressing specifically either the theory of non-positivism of Robert Alexy or his
fruitful exchanges with Joseph Raz and Eugenio Bulygin: (this would require
adopting another methodological focus), although, I make some references to their
argumentations.
2 I give preference to the separation over the separability thesis, and thus imply
that, semantically, the former rejects - on the conceptual level - the connection
between law and morality outright, while the latter argues only against the indis-
pensability of such connection (D. Dyzenhaus, Positivism's Stagnant Research Pro-
gramme - A Review of Matthew Kramer, In Defense of Legal Positivism: Law
Without Trimmings, in: Oxford Journal of Legal Studies 20 (2000), p. 705).](ViewImageLocal?handle=hein.journals/recthori44&div=1&collection=&method=preview&ext=.png&size=3)
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