My Philosophy of Law: The Institutionalisation of Reason

Abstract

Every philosophy of law is implicitly or explicitly an expression of a concept of law. All concepts of law derive from the interpretation and weighing of three elements: (1) due enactment, (2) social efficacy, and (3) substantial correctness1. Somebody who solely concentrates on due enactment and social efficacy, not giving any weight to substantial correctness in a defmition of law advocates a positivist concept of law. Hans Kelsen’s theory is an example for such a concept. His famous sentence “Therefore, any content whatever can be law”2 expresses this clearly. The most extreme antipode to legal positivism is held by those who define the law exclusively by its substantial correctness. Such a pure notion of natural law is not interesting for somebody who wants to recognise, follow, interpret, and apply the valid law. The decisive question concerning the adequacy of a concept of law is therefore not whether substantial correctness rather than due enactment and social efficacy should define the law, but instead whether substantial correctness should do so in addition.