The Authority of Law
Society is made up of a plethora of fictions: nations, economies, multinational corporations, universities and many more. We use these fictions—or rather, social constructions—to make sense of the extraordinary social phenomena that are the modern societies we live in. Arguably, at the centre of these social constructions are legal systems, or the law in general.
Law is a peculiar fiction. Laws are a specific form of rules which command a very particular form of authority. Think, for example, of my mother telling me to wash the dishes after dinner. This is a type of rule, and if I were to not follow it, I would face repercussions. However, the rule my mother imposes onto me is not of the same nature as, for instance, a law prohibiting me from going over the speed limit on a motorway. If I were to go over the speed limit, I may find a traffic officer attempting to stop me on the road, and if I were to ignore them, then that may lead to further issues, perhaps a high-speed police chase. The two rules, despite having, de facto, the same effect on me, exhibit very different kinds of authority; laws in some sense claim an overriding, legitimate form of authority in a manner that a parent’s rule to wash dishes does not.
Although this article will not discuss the authority of law necessarily, it is important to grasp that law is unique. The main focus of this article will be on the notion of legality and whether there can be such a thing as legal injustice. But before we proceed, a slight digression.
R (Miller) v The Prime Minister (2019) UKSC 41 and the principle of Parliamentary Sovereignty
On a sunny autumn day in September 2019, I found myself in an airport in Aberdeen, Scotland, heading south of the UK to begin my legal studies. Being broadcast on the screens were a number of men and women dressed in gowns and wigs, making statements and submissions before a group of elderly judges that looked very important. And indeed the Miller (2019) case was important, and was one of the first cases I read in law school. The issues litigated are not important for the purposes of this article. What is important, however, is a part of the ratio decidendi—in other words, the rationale of the judgment that creates binding precedent—which confirmed and enunciated a key constitutional principle of the British Constitution: Parliamentary sovereignty.
“Parliament has the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”A. V. Dicey, British jurist and constitutional theorist
The principle of Parliamentary sovereignty is an interesting and possibly frightening one for the foreign observer. From an orthodox reading of the British Constitution, the UK Parliament is the highest legislative body in the UK and has the power to enact or repeal any law it wishes. The idea here is that while Parliament can theoretically pass whatever law it wishes to pass, it will be bound by political consequences of its decision. Take for example the 2016 referendum on whether the UK should leave or remain in the European Union (EU). There was nothing, legally speaking, stopping the Parliament in Westminster from ignoring the decision of the people of the United Kingdom and refuse to trigger relevant legal procedures that would begin the UK’s departure from the EU. But this was politically unfeasible. Parliamentarians, many of whom had voted to remain in the EU, were politically bound to make good on the will of the people– to honour the outcome of the referendum and trigger the process of leaving the EU. Legality, in this case, was a mere formality; the reality was they had to eventually yield to the power of the people.
Regardless of these non-legal constraints on the powers of Westminster, it remains theoretically possible for the UK Parliament to pass any law it wishes– for example, banning homework in all schools or requiring that all persons with red hair dye their hair black. Parliament could (and at times does) even pass laws that some would regard as being unjust. Take for example the protests against the Police, Crime, Sentencing and Courts Bill in April 2021, which would give police expanded powers on controlling protests, possibly curbing free speech and the right to assembly. But what if Westminster decided to enact a law so unjust, so evil, that it would fall foul of principles such as freedom, liberty, non-discrimination, that so many Brits hold dear? Would those ‘laws’ be actual laws, purely because they were passed by Parliament, with elected officials who used their legislative authority to bring about extreme injustice, or would such rules, due to their grossly unjust nature, lose their legal character?
Law and Morality: A Necessary Connection?
To understand the debate surrounding legal injustice, one must be introduced to two important theoretical approaches within the Anglo-American tradition of legal philosophy—or jurisprudence, and the debate that exists between them. Firstly, we have legal positivists. Legal philosophers who identify as legal positivists believe, broadly speaking, that there is no necessary connection between law and morality; i.e., it is possible to conceive a legal system made up of laws that have no relationship or connection to morality whatsoever. This legal system could be made up of laws enacted purely to facilitate the care of teddy bears, or for the eventual destruction of planet Earth.
The second group of philosophers we are concerned with can be loosely described as normative legal theorists. They believe that law does have a necessary connection to morality; laws have to subscribe to a set of legal precepts, such as not being retroactive. These precepts are moral. Therefore, there is a necessary connection between law and morality, for laws that do not subscribe to a set criteria which contain moral precepts are thus not law or are defective laws.
Here is where the debate begins. For centuries, various philosophers belonging to the two approaches commented on the issue of legal injustice, pontificating on whether there could be such a thing as legal injustice—laws enacted by a nation’s legislature, that provisioned gross justice (some of the earlier philosophers were mysteriously unaware of the plight of women, enslaved and other persecuted peoples). Jurisprudence was, unfortunately, given a case study with the rise of the Nationalist-Socialists (Nazis), with the genocide, gross brutality and injustice that their regime subjected upon millions of Jewish Europeans and other minorities in the 1930s and 1940s. After the Second World War (WWII), German courts were flooded with cases of civilians, civil servants and soldiers accused of carrying out crimes under the guise of obeying Nazi law. One of the legal issues that arose, as philosophers had considered for centuries, was whether Nazi law, regardless of how abhorrent it was, remained law, and those accused in court argue in their defence that irrespective of the moral reprehensibility of their actions, were merely following the law and could thus not be prosecuted, retroactively, for their actions.
The legal issues these cases presented were immensely difficult; could one be persecuted for obeying the law of the land, regardless of how unjust the laws were? They raised questions as to whether defendants were indeed simply following the law or whether the courts need to retroactively convict them of crimes, going against a key principle of legal systems in general—a strong reticence toward retroactive legislation, the punishing of people for acts that at the time were legal. There were a range of responses from the German courts. One particular example was the November 1945 Wiesbaden Municipal Court judgement, which declared that Nazi laws that ordered property owned by Jews were to be forfeited to the German State were “in conflict with natural law, and null and void the moment they were enacted’. The judgment that was delivered by the Wiesbaden Municipal Court forms part of a debate among legal philosophers regarding the nature of legality, and whether there can be such a thing as legal injustice.
In his famous 1946 article, Gustav Radbruch (1878-1949), issued a scathing critique on legal positivism. Radbruch, a German politician, having served as Minister of Justice in Germany during the Weimar period, was also a legal scholar. Early in his legal career, Radbruch himself is said to have been a legal positivist. However, after witnessing the brutality of Nazi Germany, Radbruch became more associated with normative legal philosophy, renouncing the positivism he had once supported.
He argued that legal positivism’s support within the German legal profession during the Weimar Republic had left Germany’s legal system “defenceless” against Nazi laws which were “arbitrary and criminal”. He argued that legal positivism’s insistence on the validity of a law being determined only by whether it was, for example, enacted by Reichstag, helped speed up the deterioration of the rule of law and allowed for Nazis to take over the German legal system faster than would have otherwise been possible. Radbruch argued that although such a theory of law helped to uphold the key principle of legal certainty, it excluded two other important elements, legal purposiveness and justice. Legality—whether a rule qualifies to be a law—was thus not only dependent on whether a rule has been created through a Parliamentary process. Rather, it depended on whether a purported law sought to achieve the requirements of legal certainty, purposiveness and justice. But Radbruch went further than that. For him, the “conflict” between justice and certainty could be resolved in this manner:
“The positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as ‘flawed law’, must yield to justice”
This formulation is hardly controversial, for…
“…[w]here there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘flawed law’, it lacks completely the very nature of law”
According to Radbruch, any purported piece of legislation that grossly violated the ideal of justice and made no attempt at achieving it was immediately void of legal character, as was held in the Wiesbaden Municipal Court case. For Radbruch and his followers, such as the German legal scholar Robert Alexy, the standard is pretty clear: only extreme instances of injustice, such as the laws permitting genocide or mass murder, would fall under the ambit of the Radbruch formula. Such laws would need to have reached an “intolerable degree” of conflict with justice, and would thus be disavowed and stripped of their legal character. Judges could thus refuse to apply such laws, invoking the Radbruch formula. Although this may not necessarily stop a Nazi-like regime from gaining and consolidating power, it would at least keep alive a semblance of a legal system that could provide its citizens with recourse to justice and due process.
Legal Positivism Strikes Back: Criticisms of Radbruch’s Formula
Radbruch’s propositions have attracted both praise and criticism from a number of legal philosophers. Legal positivists have, through a plethora of arguments, criticised such a formulation of legality because it creates a necessary connection between law and morality—to accept Radbruch’s assertion is to conclude, at some basic level, that there is some connection between law and morality. Laws cannot, for example, be so grotesque and contrary to justice and still be called law. This assertion, for legal positivists, is not sustainable, and I tend to agree.
The reason is that legal positivism or positivisms attempt to divorce their analysis of what the law is from what the law ought to be. There have been countless regimes in the history of human civilisation that have been horrendously unjust—think of the enslavement of Africans in Arabia and the Americas, marital rape not being illegal in England up until the 1990s or the brutality of white minority rule in Apartheid South Africa. Were these not instances of gross injustice? Arguably so, and in the present day, there exists a surplus of laws, regimes and legal precedents that are arguably grossly unjust, yet few (if anyone) can really argue that those laws, regardless of their oppressive nature, are not actual laws, properly enacted by their legislatures and holding the requisite legal authority in a court of law. Empirically speaking, it does not help to think of law as being a creature that is inherently moral. To do so is to engage in a whole new fiction in of itself. Rather, the better position, argued by esteemed legal philosophers such as Joseph Raz and the famous British jurist H.L.A. Hart, would be to accept all laws for what they are: laws, and proceed from that basis.
Carl Schmitt: The Demagogue’s Lawyer
Now, you might be wondering, why does any of this matter? Well, the question of legal injustice is highly relevant to current debates surrounding the rise of populism and strongmen, who view the rule of law as an impediment to their policies of the people as opposed to important constraints on executive power.
“Demagogues do not rise on popular feeling alone but on the constitutional ideas of Weimar and Nazi legal theorist Carl Schmitt”David Dyzenhaus, Professor of Law and Philosophy at the University of Toronto
As Dyzenhaus notes in his article on Carl Schmitt, the election of Donald Trump in 2016 made more vivid populist leaders around the world and reignited interest in the 20th-century political and legal theorist Carl Schmitt. Schmitt, a virulent antisemite, who, aside from having been a lecturer at the University of Cologne, was once the chief legal adviser for the Nazi regime. Seldom do demagogues/populists operate alone, but rather, have skilled legal advisers with a deep understanding of constitutional law to formulate a legal framework for their power grabs. They understand the nature of law, its amorality and exploit that to their political advantage. This can range from appointing judges who align ideologically with the said demagogue or populist’s understanding of the constitution, to using parliamentary majorities to pass laws that afford more and more power to the executive branch of government.
Although Schmitt was relegated to obscurity due to his association with the Nazi Party after WWII, his political and legal ideas on executive power remain influential today. A Schmittean conception of effective government centres around affording the executive branch of government (i.e., the President or Prime Minister of a state) with greater powers and the ability to circumvent or override the powers of parliament. This conception of executive power has its proponents in the famous Australian legal philosopher and jurist John Finnis, who, through his Judicial Power Project, helped develop the idea of an extended prorogation that resulted in the litigation in the Miller (2019) case. Among other things, Finnis opposes judicial review of executive action by judges relying on the Human Rights Act 1998, which made rights stated in the European Convention on Human Rights (ECHR) legally enforceable in Britain. What Finnis has on his side is the notion of Parliamentary sovereignty in the UK—that the legal power of Parliament is theoretically unlimited. It could, with the necessary majority, repeal the Human Rights Act, destroy that avenue of judicial review and grant ever more power to the executive.
Nevertheless, the main point for our purposes is the use of law as a vehicle to actualise such goals. For some normative legal philosophers, such as Radbruch, proclamations of laws that fail to meet his ideal of what law ought to be obfuscates the nature of the problem presented by the actual character of law— that it bears no necessary connection with mortality, and can be made up of any content whatsoever.
By adopting a positivist approach to analysing law, you can then begin beating said populists/demagogues at their own game. Rather than relying on abstract formulae that can be invoked in situations of extreme injustice, we could instead create analytical frameworks that protect fundamental rights and ensure that we develop democracies that respect majoritarianism while safeguarding minority rights. Take, for example, the current German Constitution or Basic Law, which contains 19 articles that protect fundamental, irrevocable rights such as freedom of religion or conscience, assembly, expression etc. These protections form part of the bedrock of the current democratic German state. The Basic Law is thus an example of what can be achieved when law and legality are taken for what they are—tools to be used, as opposed to being ideals that one must aspire to. German constitutional law prevents any alteration to these fundamental rights as a rule inherent in their constitutional set-up. Such an approach to law could, for example, get activists to be clearer about their objectives, support political candidates who wish to pass constitutional amendments protecting the rights of indigenous peoples, expanding the protection of religious freedoms to ban restrictions on religious expression by employers, or strike down gender discrimination laws as being in conflict with pre-existing constitutional principles, such as the rights to non-discrimination as stipulated in the ECHR, whatever one’s political goals may be.
What to do about injustice
The issue of legal injustice masks a more pernicious issue, that of the rise of strongmen around the world. They chip away at legislation that ensures the constitutional separation of powers, appoint judges that nod to their ever-increasing executive powers and create constitutionally valid pseudo- or de facto dictatorships. The battle for democracy and the rule of law must be fought at all fronts, and the realm of law is an important battleground. As stated earlier, law is a unique fiction that humanity has created. Equipping ourselves with the necessary analytical framework to understand how populists and demagogues attack the rule of law ultimately gives us insight as to how to counteract their attempts at the expansion of executive power. The Radbruch formula is extremely unconvincing in that respect.