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Law’s Ideal Dimension
Law’s Ideal Dimension

ROBERT ALEXY
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 Preface

This volume comprises twenty-one chapters written over a period of thirty-two years. Of
these, seventeen have been published previously in English, four of them having been
translated from the original German into English by Bartocz Brożek and Stanley L. Paulson
(2007), Ruth Adler and Neil MacCormick (1992), Susanne Gaschke (1993), and Kirsten
Bock (1998) (see Chapters 11, 17, 19, and 21). The other chapters have all been written in
English, a line that is only a half-truth without an acknowledgement of the assistance given to
me by Stanley L. Paulson. Stanley has been in residence in Kiel for the past twenty years and
has always assisted me on my English-language articles. Indeed, every article from the year
2000 on begins with an asterisk-footnote thanking Stanley for his assistance and advice on
matters of English style. And I have enjoyed the same support vis-à-vis the four chapters that
are published here for the first time in English. What is more, Stanley has recently gone to
the trouble to examine and to refine the English in three fairly early articles of mine. In short,
it would simply not have been possible, without Stanley, to publish this volume. My gratitude
to him is boundless.
I want also to thank Martin Borowski at the University of Heidelberg and his secretary,
Ingrid Baumbusch, for technical assistance. Ms Baumbusch converted the older articles from
PDF files into Word files, making my work on the volume a good deal easier.
Robert Alexy
Kiel
September 2020
 Acknowledgements

The following chapters were originally published in English as indicated:

1. ‘The Nature of Legal Philosophy’, Ratio Juris 17 (2004), 156–67
2. ‘On the Concept and the Nature of Law’, Ratio Juris 21 (2008), 281–99
3. ‘The Dual Nature of Law’, Ratio Juris 23 (2010), 167–82
4. ‘Law, Morality, and the Existence of Human Rights’, Ratio Juris 25 (2012), 2–14
5. ‘An Answer to Joseph Raz’, in Law, Rights and Discourse. The Legal Philosophy of
Robert Alexy, ed. George Pavlakos (Oxford: Hart, 2007), 37–55
6. ‘The Ideal Dimension of Law’, in The Cambridge Companion to Natural Law
Jurisprudence, eds George Duke and Robert P. George (Cambridge: Cambridge
University Press, 2017), 314–41
7. ‘Gustav Radbruch’s Concept of Law’ (not previously published in English)
8. ‘The Construction of Constitutional Rights’, Law & Ethics of Human Rights 4 (2010),
20–32
9. ‘Balancing, Constitutional Review, and Representation’, International Journal of
Constitutional Law 3 (2005), 572–81
10. ‘The Existence of Human Rights’, Archives for Philosophy of Law and Social
Philosophy, supplement 136 (2013), 9–18
11. ‘The Weight Formula’, trans. Bartosz Brożek and Stanley L. Paulson, in Studies in the
Philosophy of Law, vol. 3, eds Jerzy Stelmach, Bartosz Brożek, and Wojciech Załuski
(Kraków: Jagiellonian University Press, 2007), 9–27
12. ‘Formal Principles: Some Replies to Critics’, International Journal of Constitutional
Law 12 (2014), 511–24
13. ‘Ideal “Ought” and Optimization’ (not previously published in English)
14. ‘Human Dignity and Proportionality’ (not previously published in English)
15. ‘Proportionality and Rationality’, in Proportionality. New Frontiers, New Challenges,
eds Vicki C. Jackson and Mark Tushnet (Cambridge: Cambridge University Press,
2017), 13–29
16. ‘The Absolute and the Relative Dimension of Constitutional Rights’, Oxford Journal
of Legal Studies 37 (2017), 31–47
17. ‘A Discourse-Theoretical Conception of Practical Reason’, trans. Ruth Adler and Neil
MacCormick, Ratio Juris 5 (1992), 231–51
18. ‘Problems of Discourse Theory’, Crítica 20 (1988), 43–65
19. ‘Legal Argumentation as Rational Discourse’, trans. Susanne Gaschke, Rivista
internazionale di filosofia del diritto 70 (1993), 165–78
20. Jürgen Habermas’s Theory of the Indeterminacy of Law and the Rationality of
Adjudication (not previously published in English)
21. ‘Law and Correctness’, trans. Kirsten Bock, Current Legal Problems 51 (1998), 205–
21
 Contents

Introduction

PART I THE NATURE OF LAW

1. The Nature of Legal Philosophy

I. The Nature of Philosophy
II. Pre-Understanding and Arguments
III. Three Problems
IV. Four Theses
V. Entities and Concepts
VI. Necessary Properties
VII. Law and Morality

2. On the Concept and the Nature of Law

I. The Practical and Theoretical Significance of the Debate
A. Statutory Injustice and the Radbruch Formula
B. Law’s Open Texture and the Self-Understanding of Jurists
C. The Concept of Law as a Concept of a Non-Natural Kind
II. Positivism and Non-Positivism
A. Separation Thesis and Connection Thesis
B. Exclusive and Inclusive Positivism
C. Exclusive, Inclusive, and Super-Inclusive Non-Positivism
III. Concept and Nature
A. Nature
B. Concept
IV. The Dual Nature of Law
A. Coercion
B. Correctness
V. What the Law Is and What It Ought to Be

3. The Dual Nature of Law

I. The Ideal
 A. The Claim to Correctness
B. Discourse Theory
II. The Real
III. The Reconciliation of the Ideal and the Real
A. Outermost Border
B. Democratic Constitutionalism

4. Law, Morality, and the Existence of Human Rights

I. Positivism, Non-Positivism, and the Existence Problem
A. Three Elements and Two Dimensions
B. Two Forms of Positivism
C. Three Forms of Non-Positivism
D. Inclusive Non-Positivism and the Existence Problem
II. The Existence of Human Rights
A. Human Rights as Moral Elements
B. The Concept of Human Rights
C. The Justifiability of Human Rights

5. An Answer to Joseph Raz

I. Separation Thesis
A. Kelsen’s Statement
B. The Idea of a Definition of Law
C. Necessary Connections
II. Participants and Observers
III. The Argument from Correctness
IV. The Argument from Injustice
V. The Argument from Principles

6. The Ideal Dimension of Law

I. The Claim to Correctness
II. Conceptual Analysis and Conceptual Necessities
A. The Argument from Fruitlessness
B. The Argument from Deficiency
III. The Necessity of the Real Dimension of Law
IV. A Conceptual Framework
A. First-Order and Second-Order Correctness
 B. Observer and Participant
C. Perspectives and Dimensions
D. Classifying and Qualifying Connections
V. The Relation between the Real and the Ideal Dimension
A. The Radbruch Formula
B. The Special Case Thesis
C. Human Rights
D. Democracy
E. Principles Theory

7. Gustav Radbruch’s Concept of Law

I. Gustav Radbruch’s System
A. The Law Triad
B. The Idea Triad
C. The Triad of Purpose
II. The Radbruch Formula

PART II CONSTITUTIONAL RIGHTS, HUMAN RIGHTS, AND PROPORTIONALITY

8. The Construction of Constitutional Rights

I. The Rule Construction
A. Rules and Principles
B. The Postulate to Avoid Balancing
C. Problems of the Rule Construction
II. Principles Construction and Proportionality Analysis
III. Objections to the Principles Construction
IV. The Rationality of Balancing
A. The Central Role of the Rationality Problem
B. The Irrationality Objection
C. Pareto-Optimality
D. The Law of Balancing
E. The Weight Formula

9. Balancing, Constitutional Review, and Representation

I. Balancing
A. Two Objections
 B. The Structure of Balancing
II. Constitutional Review
III. Representation
A. Argumentative Representation
B. Conditions of True Argumentative Representation

10. The Existence of Human Rights

I. The Theoretical and Practical Significance of the Existence Question
II. The Concept of Human Rights
III. The Justification of Human Rights
A. The Principles Structure of Human Rights
B. Scepticism and Non-Scepticism
C. Justification and Thesis
D. Eight Justifications

11. The Weight Formula

I. The Norm-Theoretic Basis: Rules and Principles
II. The Principle of Proportionality in the Narrower Sense
III. The Triadic Scale
IV. The Formula
V. The Extended Formula

12. Formal Principles: Some Replies to Critics

I. The Problem
II. Some Basic Elements of Principles Theory
A. Rules and Principles
B. Proportionality
C. Weight Formula
III. The Concept of Formal Principle
IV. Principles and Balancing in General
V. The Wrong Way
VI. Two Kinds of Discretion
VII. Second-Order Epistemic Optimization
VIII.Formal Principles and Discretion

13. Ideal ‘Ought’ and Optimization

 I. The Index Model of the Ideal ‘Ought’
II. The Law of Competing Principles
III. The Weight Formula
IV. Law of Competing Principles and Law of Balancing
V. A Fundamental Equivalence
VI. Poscher’s Argument from Identity
VII. Sieckmann’s Reiterated Validity Obligations

14. Human Dignity and Proportionality

I. Absolute and Relative Conceptions of Human Dignity
II. Practical Significance
III. Some Basic Elements of Principles Theory
A. Rules and Principles
B. Proportionality
C. Weight Formula
IV. The Concept of Human Dignity
A. Descriptive and Normative Elements
B. The ‘Double-Triadic’ Concept of Person
C. Human Dignity as a Bridge Concept
V. Human Dignity as Principle and as Rule
A. Human Dignity as Principle
B. Human Dignity as a Rule
VI. Devaluation of Human Dignity?
A. Clear Cases
B. Object Formula
C. Abstract Weight and Epistemic Reliability
D. Rationality

15. Proportionality and Rationality

I. Empirical and Analytical Approaches
II. Proportionality and Principles Theory
A. Rules and Principles
B. Proportionality
III. Balancing and Argumentation
A. The Formal and the Substantive Dimension of Rationality
 B. Numbers, Classification Propositions, and their Justification
C. Disagreement, Discourse, and Rationality
IV. Balancing, Universalizability, and Legal Certainty
A. The ad hoc Problem
B. The Law of Competing Principles
C. Rules and Conditions

16. The Absolute and the Relative Dimension of Constitutional Rights

I. The Absolute and the Relative
II. Constitutional Rights
A. Constitutional and Human Rights
B. The Degree of the Absolute Dimension of Constitutional Rights
III. Proportionality
A. The Absoluteness of the Principle of Proportionality
B. The Relativity and Absoluteness of the Application of the Principle of
Proportionality

PART III. ARGUMENTATION, CORRECTNESS, AND LAW

17. A Discourse-Theoretical Conception of Practical Reason

I. Introduction
II. In Defence of the Concept of Practical Reason
III. A Kantian Conception of Practical Rationality: Discourse Theory
A. The Basic Idea of Discourse Theory
B. The Status of Discourse Theory as a Theory of Practical Correctness and
Rationality
C. Towards the Justification of the Rules of Discourse
D. The Application of Discourse Theory

18. Problems of Discourse Theory

I. Discourse Theory as a Procedural Theory
II. Rules of Discourse
III. The Ideal Discourse
A. The Problem of Construction
B. The Problem of Consensus
C. The Problem of the Criterion
 D. The Problem of Correctness
IV. The Real Discourse
A. The Discursive Modalities
B. The Relative Concept of Correctness

19. Legal Argumentation as Rational Discourse

I. Models
A. The Model of Deduction
B. The Model of Decision
C. The Hermeneutic Model
D. The Model of Coherence
II. A Discourse Theory of the Law
A. General Practical Discourse
B. Institutionalization
III. Legal Argumentation
A. The Different Kinds of Legal Arguments
B. The Strength of the Arguments

20. Jürgen Habermas’s Theory of the Indeterminacy of Law and the Rationality of
Adjudication
I. The Problem of Rationality in Adjudication
II. Three Insufficient Answers
III. Ronald Dworkins’s Theory of Rights
IV. Law as an Ideally Coherent System of Norms
V. Theory of Legal Argumentation
VI. The Special Case Thesis
A. Moral, General Practical, and Legal Discourse
B. The Rules and Forms of Legal Discourse
C. Unjust Law
D. Specific Legal Nature?

21. Law and Correctness

I. The Concept of the Claim to Correctness
A. The Subjects
B. The Addressees
C. Raising a Claim
 II. The Necessity of Connecting Law and Correctness
A. An Absurd Constitutional Article
B. An Absurd Judgment
C. The Alternative
III. Legal and Moral Correctness
A. Law’s Open Texture
B. The Autonomy Objection
C. The Objection of Impossibility
D. Reality and Ideal

Index of Names
Index of Subjects
 Introduction

The twenty-one articles brought together here represent both a further elaboration and
systematic connection of the main ideas contained, often in embryonic form, in my three
books: A Theory of Legal Argumentation,1 A Theory of Constitutional Rights,2 and The
Argument from Injustice.3 Owing to a goodly number of new elements and new connections,
the present book is not merely a collection of essays in legal philosophy. Rather, it is a new
and comprehensive theory based on the arguments found in the three earlier books.
The collection is divided into three parts. The first concerns the nature of law. This is the
theme of The Argument from Injustice. Still, there is little in the book on what it means to
reflect on the nature of law. Chapter 1, on ‘The Nature of Legal Philosophy’, addresses this
issue. Legal philosophy, in a first step, is defined as reasoning about the nature of law. In a
second step, reasoning about the nature of law is understood as reasoning about the necessary
properties of law. Finally, in a third step, coercion and the claim to correctness are identified
as necessary as well as sufficient, that is, essential properties of law. If this is true, law has a
dual nature. It comprises a real as well as an ideal dimension. The existence of a real
dimension, defined by authoritative issuance and social efficacy, guaranteed by coercion, is
scarcely contested. The case is different, however, with respect to the ideal dimension,
defined by the claim to correctness. This claim includes a claim to justice. In The Argument
from Injustice, law’s ideal dimension is sometimes employed, but it plays no systematically
important role there. This concept—its place in the title of the book gives expression to its
importance in my recent work—is elaborated in Chapter 2, ‘On the Concept and the Nature
of Law’, and Chapter 3, ‘The Dual Nature of Law’. In both chapters, I attempt to make more
explicit the dual nature thesis, already implicit in The Argument from Injustice. In this
explication, the distinction between exclusive, inclusive, and super-inclusive non-positivism
—inspired by the familiar distinction between exclusive and inclusive positivism—plays a
pivotal role. With this distinction, a new field is opened up for the last four articles of Part I
of the volume. In ‘Law, Morality, and the Existence of Human Rights’, Chapter 4, I discuss
problems that arise from the fact that non-positivism is possible only if necessary moral
elements exist. My thesis is twofold. First, necessary moral elements exist because human
rights exist. Second, human rights qua moral rights exist because they are justifiable. In this
way, Part I of the book, concerning the nature of law, is intrinsically connected with Part II,
which bears the title ‘Constitutional Rights, Human Rights, and Proportionality’. To
understand human rights as moral rights is to identify a decisive element of law’s ideal
dimension. This identification, however, is only a first step in the justification of non-
positivism. The second and far more difficult step is the justification of human rights. An
attempt to arrive at such a justification is to be found in Chapter 10, ‘The Existence of
Human Rights’ in Part II of the book. First, however, I should like to invite attention to three
additional chapters in the first part. In these chapters I attempt to make clearer, by means of a
discussion of theses defended by Joseph Raz (Chapter 5), John Finnis (Chapter 6), and
Gustav Radbruch (Chapter 7), what I have said in the preceding four chapters.
In Part II of the book, as already mentioned, I take up constitutional rights, human rights,
and proportionality. In Chapter 8, ‘The Construction of Constitutional Rights’, I defend the
construction of constitutional rights as principles against objections raised by proponents of
the rule construction. The principles construction implies the necessity of proportionality
analysis and, along with this, the necessity of balancing. A standard objection against the
principles construction, raised for instance by Jürgen Habermas, is that balancing is
irrational. My reply is that balancing is an argument form of rational legal discourse. If
rational legal argumentation is possible, then balancing is possible as a rational means of
resolving conflicts between constitutional rights and between constitutional rights and
collective goods. Thus, the theory of constitutional rights is inextricably connected to the
theory of legal argumentation, the theme of my first book and of Part III of the present book.
The treatise A Theory of Constitutional Rights, has received further elaboration in several of
my more recent articles. Two of these elaborations are of special significance: one is
philosophical in nature, the other mathematical.
The philosophical elaboration concerns the nature of constitutional rights. Constitutional
rights count as positive law, that is to say, positive law at the level of the constitution. This
was the starting point of A Theory of Constitutional Rights. This fact does not suffice,
however, to explain the nature of constitutional rights. Positivity is but one side of
constitutional rights, namely their real side. Over and above this real side they also manifest
an ideal side. The reason is significant. Constitutional rights are rights that have been
recorded in a constitution with the intention of transforming human rights qua moral rights
into positive law. This intention is often a subjective or actual intention of the framers of the
constitution. Still, owing to the claim to correctness, necessarily raised with law and,
therefore, with constitutions, this intention is, furthermore, also objective and therefore
necessary. Thus, constitutional rights qua positive law necessarily have an ideal dimension.
The transformation of human rights into constitutional rights is a process of
institutionalization. Without constitutional review this process cannot be carried out.
Carrying it out, however, raises a problem: the perennial problem of the relation between
constitutional rights and democracy. In Chapter 9, ‘Balancing, Constitutional Review, and
Representation’, I try to resolve this problem by means of a classification of constitutional
review as, so to speak, an argumentative representation of the people. With this, the theory of
argumentation once again makes an entry. In Chapter 10, ‘The Existence of Human Rights’, I
attempt to demonstrate the existence of human rights. The basis of this demonstration is the
practice of discourse, essentially defined as a practice of asserting, asking, and arguing.
The mathematical elaboration of the theory of constitutional rights concerns the
transformation of the most important element of proportionality analysis, the Law of
Balancing as it is found in the A Theory of Constitutional Rights, into a mathematical
formula, the Weight Formula. This formula is given a systematic presentation in Chapter 11.
Chapter 12, ‘Formal Principles: Some Replies to Critics’, and Chapter 13, ‘Ideal “Ought” and
Optimization’, can be seen as further steps on the path opened up by the Weight Formula.
The last three chapters of Part II of the volume, Chapter 14, ‘Human Dignity and
Proportionality’, Chapter 15, ‘Proportionality and Rationality’, and Chapter 16, ‘The
Absolute and the Relative Dimension of Constitutional Rights’, show that the connection of
the mathematical structure of balancing with substantive philosophical arguments leads to
insights that are otherwise scarcely possible to imagine.
Part III concerns the relation between argumentation, correctness, and law. The articles it
comprises address three themes: the possibility of discursive rationality, the special case
thesis, and the idea of correctness. The question of whether discursive rationality is possible
is the theme of Chapter 17, ‘A Discourse-Theoretical Conception of Practical Reason’, and
Chapter 18, ‘Problems of Discourse Theory’. A key to the positive answer that I offer here is
the connection of the idea of an ideal discourse with the concept of real discourse. This, too,
counts as a tie of the real with the ideal. If discursive rationality is possible, practical
correctness or truth is not a mere illusion. The next step connects general practical rationality
with legal rationality. This is the object of the special case thesis. The special case thesis, as
developed in A Theory of Legal Argumentation, claims that legal argumentation or discourse
is a special case of general practical discourse. Legal discourse is a special case of general
practical discourse because legal argumentation is not concerned with what is absolutely
correct but with what is correct within the framework of the prevailing legal system. This is
to say that legal argumentation, too, has a real dimension and an ideal dimension. I discuss
various aspects of this in the Chapter 19, ‘Legal Argumentation as Rational Discourse’, and
Chapter 20, ‘Jürgen Habermas’s Theory of the Indeterminacy of Law and the Rationality of
Adjudication’. The latter is a reply to Habermas’s critique of my special case thesis. I analyse
the implications of the aforementioned arguments for the law in Chapter 21, ‘Law and
Correctness’. Here the concepts of law and correctness are connected.

1 Robert Alexy, A Theory of Legal Argumentation (1978), trans. Ruth Adler and Neil MacCormick (Oxford: Clarendon
Press, 1989).
2
Robert Alexy, A Theory of Constitutional Rights (1985), trans. Julian Rivers (Oxford: Oxford University Press, 2002).
3 Robert Alexy, The Argument from Injustice. A Reply to Legal Positivism (1992), trans. Bonnie Litschewski Paulson and

Stanley L. Paulson (Oxford: Clarendon Press, 2002).

 PART I

THE NATURE OF LAW

The main theme of Part I of the book is the dual nature of law. The dual-nature thesis says
that law necessarily comprises both a real dimension, defined by authoritative issuance and
social efficacy, and an ideal dimension, defined by the claim to correctness which includes a
claim to justice. This connection between the real and the ideal implies non-positivism.
 1
The Nature of Legal Philosophy

The question of the nature of legal philosophy connects two problems. The first concerns the
general nature of philosophy, the second, the special character of that part of philosophy we
call ‘legal philosophy’.

I. The Nature of Philosophy

There are so many schools, methods, styles, subjects, and ideals of philosophy that it is
difficult to explain its nature. A general explanation of the nature of philosophy would
presuppose that all or at least most of the very different conceptions of philosophy which
have appeared in the history of the field have something in common that can be conceived of
as the focal meaning or the concept of philosophy.
Perhaps the most general feature of the concept of philosophy seems to be reflexivity.
Philosophy is reflective because it is reasoning about reasoning. Philosophy is reasoning
about reasoning because its subject, the human practice of conceiving on the one hand of the
world, oneself, and other minds, and on the other of human action, is essentially determined
by reasons.
Having a conception of the world, oneself, and other minds is to have a conception about
what there is. Action, on the other hand, presupposes a conception about what ought to be
done or is good. Reasoning about the general question of what there is defines metaphysics
qua ontology; reasoning about the question of what ought to be done or is good defines
ethics. Human practice is not only based—for the most part implicitly—on answers to both
questions but it also includes—again, for the most part implicitly—numerous answers to a
third question, the question of how to justify our beliefs on what there is and on what ought
to be done or is good. This question defines epistemology. Philosophy attempts to make
explicit the ontological, ethical, and epistemological assumptions implicit in human practice.
Explicit reflexivity is necessary but not sufficient to explain the nature of philosophy. A
teacher who abhors students’ chewing gum during his lecture may become reflective by
asking himself what the reasons for his attitude are, but this is not enough for him to become
a philosopher. Reflexivity must be associated with two other properties if it is to be seen as
capturing something genuinely philosophical in nature. The reflection must be reflection
about general or fundamental questions, and this reflection must be of a systematic kind. The
shortest, most abstract, but nevertheless truly comprehensive definition of philosophy might
therefore run as follows: philosophy is general and systematic reflection about what there is,
what ought to be done or is good, and how knowledge about both is possible.
This explanation by no means claims to exhaust its subject. Its brevity excludes this, and it
may be that even a far more elaborated explanation will never be able to exhaust the nature of
philosophy, for behind or between all the concepts one can use to explain its nature there may
lie something which cannot be grasped conceptually, despite the fact that philosophy is a
conceptual activity. Our explanation, therefore, can only attempt to provide a starting point
for an answer to the question about the nature of legal philosophy. One may assume that this
question has—as with legal philosophy itself—a certain autonomy, so that we need, indeed,
an understanding of the general nature of philosophy only as a first step and not as a final and
complete basis on which our understanding of the nature of legal philosophy rests, like a
house on its foundations.
My definition of philosophy as general and systematic reflection about what there is, what
ought to be done or is good, and how knowledge about both is possible, leads,
notwithstanding its extremely abstract and highly tentative character, to three corollaries
important for our purposes. First, reflection necessarily has a critical dimension. To reflect on
what there is, what ought to be done and is good, and what we can know, is to ask for and to
argue about what objectively exists, what is true or right, and what is justified. If one defines
normativity as the ability to distinguish what is correct from what is incorrect, these
questions are normative questions. Philosophy as a necessarily reflective enterprise therefore
necessarily has a normative dimension. The general and systematic character of philosophical
reflection leads, second, to an analytic, and third, to a synthetic or holistic dimension of
philosophy. The analytic dimension is defined by the attempt to identify and to make explicit
the fundamental structures of the natural and social world in which we live and the
fundamental concepts and principles by means of which we can grasp both worlds. Without
this analytic bite, philosophy could be neither general nor systematic in a substantial sense.
In legal philosophy, the analytic dimension concerns concepts like those of norm, ‘ought’,
person, action, sanction, and institution. The synthetic dimension is defined by the attempt to
unite all of this into a coherent whole. A deeply founded and coherent picture of what there
is, what ought to be done and is good, and what we can know, is the regulative idea of
philosophy or, in simpler terms, its ultimate aim. This implies that philosophy is necessarily
holistic. Our definition of philosophy should therefore be complemented by the following,
which is implied by the definition: philosophy is normative (or critical), analytic, and holistic
(or synthetic). The three concepts of the definition (reflective, general, and systematic), and
the three concepts of the corollary (normative, analytic, and holistic), are descriptions of the
same things from different perspectives.

II. Pre-Understanding and Arguments

Legal philosophy, as philosophy, is reflection of a general and systematic kind, and it has,
exactly like philosophy in general, a normative, an analytic, and a holistic dimension. Its
differentia specifica consists in its subject: the law. Legal philosophy is not generally directed
to the questions of what there is, what ought to be done or is good, and what can be known,
but to these questions with respect to the law. Raising these questions with respect to the law
is to ask for the nature of law. This seems to lead naturally to the definition of legal
philosophy as reasoning about the nature of law.
 This, however, seems to cause a problem. It is a circularity problem, which rests on the
fact that, on the one hand, legal philosophy cannot be defined without using the concept of
law, whereas, on the other, it has the task qua reasoning about the nature of law of explaining
what law is. How can legal philosophy begin to explore what law is when it is impossible to
say what legal philosophy is without knowing what law is? This circularity, however, is not
vicious but virtuous in character. It is nothing other than a version of the hermeneutic circle,
and it is to be resolved like all variants of this circle: by starting with the pre-understanding
suggested by the established practice and elaborating it through critical and systematic
reflection.
The pre-understanding of law is not only the pre-understanding of an entity which is
highly complex in itself. To this first complexity is added—as a second complexity—that the
pre-understanding as such is capable of extreme variations. The scale extends from Holmes’s
‘bad man’,1 which defines a rather detached external point of view, to Dworkin’s judge
Hercules,2 which represents a rather idealistic internal one. Legal philosophy as an enterprise,
which, at the same time, is systematic as well as critical, cannot start from just one pre-
understanding. It has to consider all of them and, what is more, has to analyse the relation of
all of them to all features of law.
The requirement to consider all pre-understandings which are to be found in law and legal
philosophy on the one side, and all features of law on the other side, suggests the idea of
something like a catalogue of all approaches and all features. But how does one compose
such a list? Simply to pick up and collect each approach and each feature which appears in
history or today before our eyes would, as Kant says, ‘not be a rational system but merely an
aggregate haphazardly collected’.3 One needs no argument in order to say that this would be
incompatible with the systematic and critical character of philosophy. Philosophical
reflection demands a system. It is, however, much easier to say that a mere aggregate, or, as
Kant sometimes puts it, a ‘rhapsody’4 is not enough than to say how an adequate conceptual
system or framework can be constructed. The best answer seems to be not by an abstract
theory of legal philosophy but by systematic analysis of the arguments put forward in the
discussion about the nature of law. No other procedure seems to fit better the general
character of legal philosophy qua reasoning about the nature of law.

III. Three Problems

The arguments about the nature of law revolve around three problems. The first problem
addresses the questions: in what kind of entities does the law consist, and how are these
entities connected such that they form the overarching entity we call ‘law’? This problem
concerns the concept of a norm and a normative system. The second and the third problem
are addressed to the validity of law. The second concerns its real or factual dimension. This is
the area of legal positivism. Two centres are to be distinguished here. The first is determined
by the concept of authoritative issuance, the second by that of social efficacy. The third
problem of the nature of legal philosophy concerns the correctness or legitimacy of law.
Here, the main question is the relationship between law and morality. To take up this question
is to take up the ideal or critical dimension of law. It is this triad of problems that, taken
together, defines the nucleus of the problem of the nature of law.
This tripartition claims to be complete, neutral, and systematic. It is complete when it can
absorb all arguments that can be put forward for and against a thesis about the nature of law.
The only proof possible for this consists in corroborating our triadic model with respect to as
many critical instances as possible. The model is neutral when it adds no preferences to the
weights of the arguments it absorbs. The proof is the same as in the case of completeness. It
is, finally, systematic when it leads to a coherent picture of the nature of law. In this case, the
proof cannot consist of anything else than an elaboration of a coherent account.
The last point can be generalized. Only by elaborating the best theory connecting answers
to all three questions about the nature of law can the nature of legal philosophy become as
clear as possible. It is, however, not only not the case that one can develop such a perfect
theory here but also the case that one may well be sceptical about whether such an ideal of
perfection can ever be achieved. Fortunately, it is not necessary to know all in order to know
enough. In order to obtain as much as is necessary for our purposes it suffices to use the
triadic model as a framework for the discussion of paradigmatic problems.

IV. Four Theses

The consideration of paradigmatic problems vis-à-vis our triadic model shall confirm four
theses. This confirmation, again, implies a corroboration of the model. The first thesis says
that legal philosophy is not confined to certain special problems connected with law; all
problems of philosophy may arise in legal philosophy. In this respect legal philosophy
substantially includes the problems of philosophy in general. One can call this the ‘general
nature thesis’. The second thesis maintains that there are specific problems of legal
philosophy. They are due to the specific character of law, which results from the fact that law
is necessarily authoritative or institutional as well as critical or ideal. This is the ‘specific
character thesis’. The third thesis says that there is a special relation between legal
philosophy and other provinces of practical philosophy, especially those of moral and
political philosophy. One can call this the ‘special relation thesis’. A fourth thesis overarches
the first three theses. That is, it does not simply join them as a fourth thesis but expresses an
idea behind them. It is the idea that legal philosophy can be successful only if it comes up to
the level not only of one or two of these theses but to that of all three. This is the
‘comprehensive ideal’ of legal philosophy.
While the triadic model of the problems of legal philosophy claims to be neutral, the four
theses do not. They involve decisions with respect to the solution of these problems. This
becomes clear when one contrasts the comprehensive ideal with something like a ‘restrictive
maxim’. A radical version of such a restrictive maxim maintains, first, that legal philosophy
should never get involved in any genuinely philosophical problem; second, that legal
philosophy should concentrate its efforts on the institutional or authoritative character of law;
and, third, that legal philosophy should delegate critical normative questions to moral and
political philosophy, which for their part should be kept, so to speak, beyond reach. The
restrictive maxim mirrors a picture of legal philosophy that is fundamentally different from
the picture of the field corresponding to the comprehensive ideal. Legal philosophy turns into
a juridical theory of law, which is separated from general philosophy as well as from moral
and political philosophy.
The choice between the comprehensive ideal and the restrictive maxim is a fundamental
choice. The character of legal philosophy is determined by it much more radically than by the
choice between legal positivism and non-positivism. The choice between positivism and non-
positivism is a choice inside the realm of legal philosophy. The choice between the
comprehensive ideal and the restrictive maxim amounts to a choice between philosophy and
non-philosophy. This is the background against which our paradigmatic problems have to be
considered.

V. Entities and Concepts

The answers given by Kelsen and Olivecrona in the 1930s to the classical question of what
entities the law consists of present our first example. Kelsen defines ‘law as norm’,5 and
norms as ‘meaning’,6 and the ‘unique sense’ of this meaning as ‘ought’, and ‘ought’ as a
‘category’.7 This is the language in which abstract entities are described. Kelsen insists that
norms—and thus, law—can be reduced neither to physical events nor to psychical processes.
They belong not to natural reality but to an ‘ideal reality’.8 Such an ideal reality, which exists
in addition to the physical and the psychical world, would be a ‘third realm’ in the sense of
Frege.9 The opposite position is to be found in Karl Olivecrona, who, with an eye to Kelsen,
maintains that ‘[t]he rules of law are a natural cause—among others—of the actions of the
judges in cases of litigation as well as of the behaviour in general of people in relation to
each other’.10 This question—as an ontological question—is not only a question of general
philosophical interest, it is also a question which must be answered in order to determine the
nature of law, and it is, therefore, a genuine question of legal philosophy.
An adherent of the restrictive maxim might object that the question of the ontological
status of norms is, for lawyers, as unimportant as the question of the real or only imagined
existence of a mountain in Africa, identified and surveyed by two geographers, is for these
two geographers.11 The reply to this objection is that the realism problem has a different
significance for geographers than the meaning problem has for lawyers. The answer to the
question as to whether norms are meaning contents or natural causes determines the answer
to a further question, namely, whether norms can be conceived as elements of an inferential
system and, thereby, as starting points of arguments, or whether they are only elements in a
causal network. In the first case, legal reasoning oriented towards correctness is possible, in
the second, it would be an illusion. This shows how the self-understanding of legal reasoning
and, by means of it, the self-understanding of law depends on ontological presuppositions.
There are, naturally, several ways for reconstructing these presuppositions. But the mere fact
that there exists the necessity of reconstructing them is enough to confirm the thesis that legal
philosophy cannot do without arguments that are genuinely philosophical in character.
 In any case, the concept of a norm or the ‘ought’ is a candidate for the most abstract
concept of legal philosophy. If one goes one step down from this level of abstraction, the
inferential impact of the fundamental concepts of law becomes far more obvious. The
distinction between rules and principles is a highly abstract question of the general theory of
norms. It has, at the same time, far-reaching consequences for the theory of legal reasoning.
If law contains both, then legal reasoning inevitably combines subsumption with balancing.12
Legal reasoning is thereby essentially determined by structures that are structures of general
practical reasoning. This is an important reason for not conceiving of legal reasoning as a
province in its own right, separate and distinct from other provinces of reason.
All this shows that fundamental philosophical questions must be answered in order to
grasp the nature of law. Reflection about the nature of law cannot succeed when separated
from general philosophy.

VI. Necessary Properties

Asking for the nature of something is more than asking for interesting and important
properties. Questions about the nature of law are questions about its necessary properties.
The concept of necessity leads one to the heart of philosophy. The same is true with its
relatives, the concepts of analyticity and the a priori. Without these concepts it is impossible
to understand the meaning of questions of the type ‘What is the nature of Φ?’ Without
understanding the structure of questions of this kind, one cannot understand the main
question of legal philosophy: ‘What is the nature of law?’ And to fail to understand this
question is to fail to know what legal philosophy is.
The possibility of defining the concept of nature as it appears in sentences of the form
‘What is the nature of Φ?’, namely, by means of the concept of necessity, allows for the
substitution of the question ‘What is the nature of law?’ by the question ‘What are the
necessary properties of law?’ This question leads, by means of the concept of necessity (and
its relatives, analyticity, and the a priori), to the specific character of law. The question of
what is necessary, when connected with the question of what is specific, turns into the
question of what is essential. This is the area of the specific character thesis.
Two properties are essential for law: coercion or force on the one hand, and correctness or
rightness on the other. The first concerns a central element of the social efficacy of law, the
second expresses its ideal or critical dimension. It is the central question of legal philosophy
to ask how these two concepts are related to the concept of law and, through it, to each other.
All—or at least nearly all—questions of legal philosophy depend on the answer to this
question.
It is highly contested whether coercion and correctness are necessarily connected with law.
This dispute is attended by a meta-dispute about the question of what kind of argument can
be given for and against the necessity of such connections. It is impossible to elaborate this
here.13 I will therefore confine myself to some features which seem to be instructive for our
question concerning the nature of legal philosophy.
Coercion is the easier case. It seems to be quite natural to argue that a system of rules or
norms which in no case authorizes the use of coercion or sanction—not even in case of self-
defence—is not a legal system, and this is the case owing to conceptual reasons based on the
use of language. Who would apply the expression ‘law’ to such a system of rules?
Conceptual reasons of this kind, however, have little power of their own. Concepts based on
the actual use of language are in need of modification once they prove not to be, as Kant says
—mentioning, inter alia, the concepts of gold, water, and law—‘adequate to the object’.14
Including coercion in the concept of law is adequate to its object, the law, because it mirrors a
practical necessity necessarily connected with law. Coercion is necessary if law is to be a
social practice that fulfils its basic formal functions as defined by the values of legal certainty
and efficiency as well as possible. This practical necessity, which seems to correspond to a
certain degree to Hart’s ‘natural necessity’,15 is mirrored in a conceptual necessity implicit in
the use of language. This shows that language, which we use to refer to social facts, is
inspired by the hermeneutic principle that each human practice is to be conceived of as an
attempt to carry out its functions as well as possible. Unravelling this connection between
conceptual and practical necessity makes clear in what sense coercion belongs as a necessary
property to the nature of law.
The second central property of law is its claim to correctness. This claim stands in genuine
opposition to coercion or force, and it is an essential mark of law that it comprises such a
difference.
The necessity of coercion, it has been shown, is based on a practical necessity defined by a
means-end relation. In this respect, it has a teleological character. The necessity of the claim
to correctness is a necessity resulting from the structure of legal acts and legal reasoning. It
has a deontological character. To make explicit this deontological structure implicit in law is
one of the most important tasks of legal philosophy.
All methods of making the implicit explicit can be applied here. One of them is the
construction of performative contradictions.16 An example of this is a fictitious first article of
a constitution which reads as follows: ‘X is a sovereign, federal, and unjust republic.’ It is
difficult to deny that this article is somehow absurd. The idea underlying the method of
performative contradiction is to explain this absurdity as resulting from a contradiction
between what is implicitly claimed in acting to frame a constitution—namely, that it is just—
and what is explicitly declared—namely, that it is unjust. If this explanation is sound, and if
the claim to justice, which is a special case of the broader claim to correctness,17 is
necessarily raised, then a necessary connection between law and justice is made explicit.
It is not difficult to recognize how this argument might be challenged. One simply has to
deny that law necessarily raises a claim to correctness. Once this claim disappears, any
contradiction between the explicit and the implicit vanishes. The declaration of injustice
contained in our first article may then be interpreted as an expression of a claim to power.
This is not the place to discuss the question of whether it is possible for a system of norms
to substitute the claim to correctness by a claim to power and nevertheless remain a legal
system.18 This is a question of legal philosophy, not a question about its nature. Here it
suffices to say that the discussion about necessary deontological structures implicit in the law
belongs to the very nature of legal philosophy.
 VII. Law and Morality

If the thesis that law necessarily raises a claim to correctness should prove to be wrong, it
would be difficult to contest the positivist’s thesis of the separability of law and morality. The
opposite, however, is the case if the thesis about the claim to correctness is true. The thesis
would then provide a solid basis for the argument that morality is necessarily included in the
law.
The inclusion of morality in the law helps to solve problems, but it also creates problems
that one might well be able to circumvent if one followed the positivist’s separation thesis.
The problems which the inclusion of morality can help to solve are, first, the problem of
basic evaluations underlying and justifying the law, second, the problem of realizing the
claim to correctness in the creation and the application of law, and third, the problem of the
limits of law.
One aspect of the problem of basic evaluations has already appeared when the relation
between law and coercion has been classified as a practical necessity. The concept of a
practical necessity is ambiguous. A weak interpretation only refers to a means–end relation,
where one treats the choice of the ends merely as a matter of fact or only as hypothetical.
This is the import of Hart’s concept of ‘natural necessity’ if one understands the ends only as
‘some very obvious generalizations … concerning human nature and the world in which men
live’.19 The picture begins to change, however, if the general ends of law, like legal certainty
and the protection of basic rights, are considered as requirements of practical reason, and it
changes completely if these requirements are considered as necessary elements of the law.
Such a strong interpretation of the concept of practical necessity would provide an evaluative
or normative basis of the law.
The second problem which the inclusion of morality promises to solve is the realization of
the claim to correctness within the institutional framework of the law. An example is legal
reasoning in hard cases. Once morality is conceived of as included by the law, moral reasons
can and must participate in the justification of legal decisions when authoritative reasons run
out. The theory of legal reasoning attempts to grasp this by conceiving of legal reasoning as a
special case of general practical reasoning.
The third problem, which seems best solved by means of the inclusion of morality in the
law, is that of the limits of law. If extreme injustice is not to be considered as law—at least
from the point of view of a participant in the legal system—how should this be justified
without recourse to moral reasons?20
All of this, however, represents only the one side. The other side is, as already mentioned,
that the inclusion of morality in the law creates serious problems. One of the main reasons
for the authoritative and institutionalized structure of law is the general uncertainty of moral
reasoning. Moral disputes tend to be endless. Often in social life a consensus cannot be
achieved by discourse. For reasons of practical necessity an authoritative decision must, then,
be substituted. This would, however, only be an argument for conceiving of moral reasoning
as not belonging to law were it not possible to incorporate moral reasoning into legal
reasoning without destroying the necessary authoritative elements of the latter. It is a main
task of legal philosophy to consider whether or not this is possible.
 A second problem is far more serious. It is the problem of whether moral knowledge or
moral justification is possible at all. If the meta-ethical theses of subjectivism, relativism,
non-cognitivism, or emotivism should prove to be true, the claim to correctness would have
to be interpreted in terms of something like an ‘error theory’, as Mackie has suggested.21
This shows that law, by incorporating morality via the claim to correctness, finds itself
encumbered with the epistemological problems of moral knowledge and justification. This is
not a small burden.
At the beginning of our deliberations we distinguished three main questions of philosophy:
the ontological question of what there is, the ethical or practical question of what ought to be
done or is good, and the epistemological question of what we can know. Our way through the
fields of legal philosophy has shown that legal philosophy confronts all three kinds of
questions. This already seems to be more than can be achieved by one person. But there is
more. The reflective and systematic nature of legal philosophy demands that all these
questions be connected in a coherent theory, which, for its part, must be as close to law as
possible in order to guarantee that what it makes explicit really is the nature of law. In this
way, our reflections about the nature of legal philosophy end with the exposition of an ideal.

1 Oliver Wendell Holmes, ‘The Path of the Law’, Harvard Law Review 10 (1896–97), 457–78, at 459.
2 Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 105.
3 Immanuel Kant, The Metaphysics of Morals, trans. and ed. Mary J. Gregor, in The Cambridge Edition of the Works of
Immanuel Kant. Practical Philosophy (Cambridge: Cambridge University Press, 1996), 353–603, at 493 (trans. altered); AA
6, 357.
4 Immanuel Kant, Critique of Pure Reason, trans. Werner S. Pluhar (Indianapolis, Ind.: Hackett, 1996), 755; A 832, B

860.
5 Hans Kelsen, Introduction to the Problems of Legal Theory (1934), trans. Bonnie Litschewski Paulson and Stanley L.
Paulson (Oxford: Clarendon Press, 1992), 13.
6 Ibid., 11, 14.
7 Ibid., 24.
8 Ibid., 15.
9 Gottlob Frege, ‘The Thought: A Logical Inquiry’, trans. A. M. Quinton and Marcelle Quinton, in Philosophical Logic,
ed. P. F. Strawson (Oxford: Oxford University Press, 1967), 17–38, at 29.
10 Karl Olivecrona, Law as Fact (London: Humphrey Milford, 1939), 16.
11 Rudolf Carnap, ‘Pseudoproblems in Philosophy’, trans. Rolf A. George, in Carnap, The Logical Structure of the World
and Pseudoproblems in Philosophy (Chicago, Ill.: Open Court, 2003), 301–43, at 333.
12 Robert Alexy, ‘On Balancing and Subsumption. A Structural Comparison’, Ratio Juris 16 (2003), 433–48, at 448.
13 Robert Alexy, ‘The Nature of Arguments about the Nature of Law’, in Rights, Culture, and the Law. Themes from the
Legal and Political Philosophy of Joseph Raz, eds Lukas H. Meyer, Stanley L. Paulson, and Thomas W. Pogge (Oxford:
Oxford University Press, 2003), 3–16.
14 Kant, Critique of Pure Reason (n. 4 above), 680; A 728, B 756.
15 H. L. A. Hart, The Concept of Law, 2nd edn (Oxford: Clarendon Press, 1994), 199.
16 Robert Alexy, The Argument from Injustice. A Reply to Legal Positivism (1992), trans. Bonnie Litschewski Paulson
and Stanley L. Paulson (Oxford: Clarendon Press, 2002), 35–9.
17 Justice is a special case of correctness, if justice can be defined as correctness of distribution and compensation; see
Robert Alexy, ‘Giustizia come correttezza’, Ragion pratica 9 (1997), 103–13, at 105.
18 Robert Alexy, ‘Law and Correctness’, trans. Kirsten Bock, Current Legal Problems 51 (1998), 205–21, at 213–14 (in
this volume: Chapter 21, 312–25, at 319–20).
19 Hart, The Concept of Law (n. 15 above), 192–3.
20 Alexy, The Argument from Injustice (n. 16 above), 40–62.
21
John Mackie, Ethics. Inventing Right and Wrong (London: Pelican, 1977), 35.
 2
On the Concept and the Nature of Law

The debate over the concept and the nature of law is both venerable and lively. Reaching
back more than two millennia, it has acquired in our own days a degree of sophistication
hitherto unknown.

I. The Practical and Theoretical Significance of the Debate

There are practical as well as theoretical reasons for the persistence and vivacity of the issue,
and these two features are closely connected. To define the concept of law or to determine its
nature is to say what law is. Every jurist in every legal system has a more or less clear idea
about what law is; were it otherwise, the jurist would not be able to identify what the law
requires in a given legal system. In the ordinary run of cases, no problems arise. To engage in
reasoning about the concept or the nature of law would be out of place. Things are different,
however, in extraordinary cases.

A. Statutory Injustice and the Radbruch Formula

Historically, the single most spectacular class of extraordinary cases concerns statutory
injustice. One example is the Eleventh Ordinance, 25 November 1941, issued pursuant to the
Statute on Reich Citizenship of 15 September 1935, which stripped emigrant Jews of German
citizenship and of all their property.1 The Eleventh Ordinance had been duly issued and was
socially efficacious. According to the positivistic concept of law, which defines law
exclusively by appeal to authoritative issuance and social efficacy,2 that is, as a social fact,3
the Eleventh Ordinance had, indeed, served to deprive all emigrant German Jews of their
citizenship and property.
By contrast, the German Federal Supreme Court4 and the German Federal Constitutional
Court5 have pursued a non-positivistic line. The jurisprudential core of their reasoning is
found in Gustav Radbruch’s Formula. Here only the first part6 of the Formula is of interest. It
says that
[t]he 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.7

Perhaps the most important feature of the Radbruch Formula as an expression of a non-
positivistic concept of law is that it does not require any sort of complete fit as between law
and morality. That is, appropriately issued and socially efficacious norms may well be valid
law even where they prove to be severely unjust. It is only when the threshold of intolerable
injustice is crossed that appropriately issued and socially efficacious norms lose their legal
validity. In this way, the non-positivistic concept of law builds into law an outermost limit.
Along with the term ‘intolerable’ (unerträglich), Radbruch uses the expression
‘horrendous’ (horrend)8 in order to designate the borderline. The term ‘extreme’ seems,
however, to be more suitable than either ‘intolerable’ or ‘horrible’ where expressing the idea
of a threshold located at the upper end of a scale is concerned. The shortest conceivable form
of the Radbruch Formula would then run as follows:

Extreme injustice is no law.

Anyone who endorses this formula has not only accepted non-positivism as a theoretical
view but is also advocating a substantive legal thesis with direct practical consequences.

B. Law’s Open Texture and the Self-Understanding of Jurists

Nowhere is the practical impact of questions about the concept and the nature of law more
obvious than in cases of extreme statutory injustice found in a rogue regime. The debate
between legal positivism and legal non-positivism has, however, practical consequences not
only in spectacular cases but also in the everyday life of law. The everyday life of law is full
of hard cases that cannot be decided simply on the basis of what has been authoritatively
issued. Contra legem decisions are the most conspicuous examples, but jurists also have to
have recourse to non-authoritative reasons in cases of gaps, in cases of conflicts between
norms that can only be solved by weighing or balancing, and—the most frequent and least
spectacular constellation—in cases of vagueness of the language of law or indeterminacy of
the intentions of the law-maker. If legal decisions are to be based on reasons, then where
authoritative reasons run out, the reasons for legal decisions will have to include non-
authoritative reasons. Among these non-authoritative reasons, the most important class
consists of reasons referring to justice. Questions of justice are, however, moral questions.
This implies that the open texture of law9 renders a non-arbitrary, justified application of law
without moral reasoning impossible.
Now there exists a broad consensus between positivists and non-positivists to the effect
that moral arguments are indispensable to legal reasoning or argumentation.10 The point of
disagreement lies in how this is to be interpreted. According to non-positivism the moral
arguments that are indispensable for a well-grounded answer to a legal question are
necessarily incorporated into the law. Positivism in its weaker version, known as inclusive
positivism, rejects the idea that this incorporation is necessary. And, going beyond this, the
stronger version of positivism, known as exclusive positivism, maintains that such an
incorporation is necessarily excluded, for—so the argument goes—moral reasons qua moral
reasons are necessarily non-authoritative reasons, and law comprises only authoritative
reasons.
This debate is, first and foremost, a debate about the self-understanding of jurists. If law
and morality are separated, as positivism insists they must be, then jurists have to distinguish
between two points of view in applying the law: the legal point of view and the moral point
of view. On the basis of this distinction, moral wickedness has as such no influence on the
legal merits of the decision. If, however, law and morality are necessarily connected, then
moral wickedness does have an effect on law. Given this condition, morally wicked decisions
cannot be legally perfect in all respects. This difference in self-understanding has, unlike the
Radbruch Formula, no direct effects on the content of the decisions made. But one may
assume that legal decision-making is influenced by the self-understanding of those who
decide. In this sense, the difference in self-understanding has indirect consequences. These
indirect consequences of the self-understanding of jurists are an essential part of the practical
impact of the debate about the concept and nature of law.

C. The Concept of Law as a Concept of a Non-Natural Kind

If the debate about the concept and the nature of law were only of practical significance, it
would simply be one more dispute in law, a most abstract dispute certainly, but it would not
have any special character. It has, however, a special character, and this is due to its
theoretical significance. The debate over the concept and the nature of law is a debate over
necessary truths about the law. The truth of the controversial claims in question turns in no
way on this or that aspect of the historical development of the legal system. That it does not
is a reflection of the status of the issue, namely, as one part of a genuinely philosophical
debate. The fact that this philosophical debate has practical consequences, that is,
consequences for the law of the land, underscores the fact that law and philosophy are
necessarily connected.11
What has been said thus far, however, will not suffice for one who wishes to understand
what is truly at stake in the debate over the concept and the nature of law. The debate is not
only philosophical in character but has, as well, a more specific philosophical interest.
The concept of law refers to an entity that connects the real and the ideal in a necessary
way. Notwithstanding its anchorage in the real world, law cannot be reduced to a concept
referring to a natural kind or object—such as the concepts of water, black holes, or killing.
The concept of law is a paradigm concept of a non-natural kind that is intrinsically related to
natural kinds. The analysis of such a concept would be of interest for reasons philosophical in
nature even if the analysis had no practical legal consequences—which, however, it indeed
has.

II. Positivism and Non-Positivism

A. Separation Thesis and Connection Thesis

The controversy between positivism and non-positivism is a dispute about the relationship
between law and morality. All positivists defend the separation thesis. In its most general
form, the thesis says that there is no necessary connection between the law as it is and the
law as it ought to be.
In a more precise version, it states that there is no necessary connection between legal
validity or legal correctness on the one hand, and moral merits and demerits or moral
correctness and incorrectness on the other.12 By contrast, all non-positivists defend the
connection thesis, which says that there is a necessary connection between legal validity or
legal correctness on the one hand, and moral merits and demerits or moral correctness and
incorrectness on the other.

B. Exclusive and Inclusive Positivism

Both the separation thesis and the connection thesis lend themselves to a variety of different
interpretations. In order to make clear what is at issue in the dispute between positivism and
non-positivism, it is well to take a look at the basic positions. The competing positions in our
never-ending debate can only be fully understood by way of their opposites.
Within positivism, the distinction between exclusive and inclusive positivism is the most
important division where the relation between law and morality is concerned. Exclusive
positivism, as advocated most prominently by Joseph Raz, maintains that morality is
necessarily excluded from the concept of law.13 Exclusive positivism stands in a relation of
contrariety to non-positivism, which claims that morality is necessarily included in the
concept of law, that is to say, necessarily not excluded therefrom. Inclusive positivism, as
defended, for instance, by Jules Coleman, counts as the rejection of both exclusive positivism
and non-positivism. It says that morality is neither necessarily excluded nor necessarily
included. The inclusion is declared to be a contingent or conventional matter14 turning on
what the positive law in fact says.15 Non-positivism, in arguing not only that morality is not
necessarily excluded but also that it is necessarily included, is contrary to both forms of
positivism.16

C. Exclusive, Inclusive, and Super-Inclusive Non-Positivism

Recently the division between exclusive and inclusive positivism has attracted a great deal of
attention. This has not been the case, however, where divisions within non-positivism are
concerned. Still, the differences within non-positivism are no less important for the debate
over the concept and the nature of law than the differences within positivism.
The differences within non-positivism that are relevant here stem from different effects on
legal validity that are attributable to moral defects. Non-positivism can determine the effect
on legal validity that stems from moral defects or demerits in three different ways. It might
be the case that legal validity is lost in all cases, or it might be the case that legal validity is
lost in some cases and not in others, or, finally, it might be the case that legal validity is
affected in no way at all.
The first position, according to which every moral defect yields legal invalidity, is the most
radical version of non-positivism, and it is only rarely found in the literature. This position
might be characterized as ‘exclusive non-positivism’ in order to express the idea that each
moral defect is considered as excluding social facts from the sources of legal validity.17 An
example of exclusive non-positivism is the position defended by Deryck Beyleveld and
Roger Brownsword. According to their position ‘immoral rules are not legally valid’.18
This seems, on first glance, to be rather curious. It looks as if morality completely ruled
the law. But this, due to ‘the inherently controversial nature of moral issues’,19 would amount
to anarchism. Beyleveld and Brownsword are, however, well aware of the problem, and they
develop a complex theory to delimit what appear to be the pervasive effects of the conflict
between law and morality on legal validity.20 This seems, however, to be a paradigmatic case
of an auxiliary construction that serves, at best, to treat the consequences of a mistake instead
of curing the disease as such.21 The disease as such consists in overlooking the dual nature of
law. Law comprises a factual as well as an ideal dimension. This precludes any effort to
ground the impact of the factual or authoritative dimension on merely auxiliary
considerations. The factual dimension, defined by authoritative issuance and social efficacy,
like the ideal dimension, defined by moral correctness, belongs to law from the beginning.
The second version of non-positivism, which might be termed ‘inclusive non-positivism’,
claims that exclusive non-positivism as represented by Beyleveld and Brownsword expresses
an unjustified bias towards the ideal dimension of law. Therefore, exclusive non-positivism
may be reproached for over-idealization. This mistake can be avoided by means of the
Radbruch Formula, which claims neither that moral defects always undermine legal validity
nor that they never do so. Moral defects undermine legal validity if and only if the threshold
of extreme injustice is transgressed. Beneath this threshold the effects of moral defects are
confined to legal defectiveness. This is the version of non-positivism that will be defended
here.
Accepting the Radbruch Formula is to adhere to a version of inclusive non-positivism
which maintains that legal validity is lost in some cases of moral defects or demerits and not
in others. There remains, as mentioned, a third version of non-positivism. It maintains that
legal validity is in no way at all affected by moral defects or moral incorrectness. On first
glance, this version of inclusive non-positivism looks even more curious than exclusive non-
positivism. Is it really possible to remain a non-positivist in claiming that legal validity is in
no way affected by moral defects? Does one not thereby revert inevitably and unavoidably to
positivism? A glance at Kant’s theory of law might help us in answering this question, a
question that appears to be of some significance for the understanding of the nature of non-
positivism.22 Kant begins with claims that are profoundly non-positivistic in character.
Especially important are his assumptions to the effect that there exists an ‘innate right’ to
freedom23 and that there exists a right, based on nothing other than pure reason, to acquire
property,24 both resting ‘only on a priori principles’,25 that is, existing independently of any
positive law. Kant’s second step leads from non-positive or ‘natural law’26 to positive law.
Kant argues that without a transformation into positive law, these non-positive or natural
rights would remain completely without effect. For this reason, everyone has the obligation,
established a priori by practical reason, to subject itself to positive legislation and the positive
administration of law:
 [B]efore a public lawful condition is established individual human beings, peoples and states can never be secure
against violence from one another, since each has its own right to do what seems right and good to it and not to be
dependent upon another’s opinion about this. So, unless it wants to renounce any concepts of right, the first thing it
has to resolve upon is the principle that it must leave the state of nature, in which each follows its own judgment,
unite itself with all others (with which it cannot avoid interacting), subject itself to a public lawful external coercion,
and so enter into a condition in which what is to be recognized as belonging to it is determined by law and is allotted
to it by adequate power (not its own but an external power).27

The crucial point of Kant’s argument is that the transition from non-positive law to positive
law is as radical a step as one can conceive. Once a positive legal system is established, every
form of resistance or disobedience by appeal to non-positive or natural rights is prohibited—
and, Kant adds, ‘this prohibition is unconditional’.28 The prohibition applies even in cases in
which the legislator ‘has empowered the government to proceed quite violently
(tyrannically)’.29
If one were to follow Jeremy Waldron here, one would have to ‘leave Kant in the classic,
but honest, predicament of the true legal positivist’.30 But is this true? The basis of Kant’s
argument in favour of the strict authority of positive law is the ‘idea of a political constitution
as such’,31 without which ‘establishing public law’,32 that is, assuring the efficacy of rights,
would be impossible. This idea—as with, according to Kant, ideas in general—demands ‘the
greatest perfection possible’.33 A ‘perfect legal constitution’,34 however, would require not
only perfect positive authority, but also a perfect realization of the non-positive rights. It
would demand that a society be established ‘in which freedom under external laws to the
greatest possible extent is combined with irresistible force’.35 The concept of idea makes it
possible for Kant to connect the complete or ‘[u]nconditional submission’36 under positive
law with a necessary subjugation of positive law to non-positive law. Law as idea is
necessarily a part of the concept of law just as law as fact is. Thus, where positive law fails to
meet the demands of law qua idea, this has the effect of rendering positive law not only
morally defective, but also legally defective. When Kant talks about a ‘perfect legal
constitution’ or about ‘grave defects and gross faults’37 of a constitution, he has precisely this
in mind. A theory of law, however, that not only bases the validity of positive law on
principles that are non-positivistic in character—as normative positivism does—but, over and
above this, also makes positive law’s quality of being legally defective necessarily dependent
on non-positivistic principles, is a non-positivistic theory of law. To be sure, the fact remains
that each and every norm, if only authoritatively issued and socially efficacious, has to be
classified by this version of non-positivism as a legally valid norm. That is, every norm based
on social facts is a legally valid norm. The connection between law and morality is, therefore,
not a classifying one, but only an ideal or qualifying one.38 This, however, suffices to
establish a necessary connection between law and morality, a connection that cannot be
reconciled with the positivistic separation thesis. For this reason, it seems to be preferable to
conceive of theories such as that of Kant’s not as positivistic theories, as Waldron proposes,
but as non-positivistic theories. Without any doubt, such theories count as fairly extreme
versions of non-positivism. They represent the highest degree conceivable of the
inclusiveness of non-positivism. For that reason, this version of non-positivism might be
termed ‘super-inclusive non-positivism’. Owing to its radical character, super-inclusive non-
positivism is exposed to objections quite similar to those raised against exclusive non-
positivism. Whereas exclusive non-positivism expresses an unjustified bias towards the ideal
dimension of law, super-inclusive non-positivism expresses a doubtful bias in favour of law’s
real or factual dimension. The reproach of over-idealization that has been put forward against
exclusive non-positivism has its counterpart in the reproach of paying too little heed to the
ideal dimension of law that must be raised against super-inclusive non-positivism.

III. Concept and Nature

The debate within non-positivism as well as the debate between non-positivism and the
different forms of positivism is a debate over the concept and the nature of law. The question
of how to resolve such a debate depends on what the concept and the nature of a thing is.
These questions lead one to the very heart of philosophy. Only certain aspects can be taken
up here.

A. Nature
Enquiring into the nature of something is to enquire into its necessary properties. Thus, for
the question ‘What is the nature of law?’ one may substitute the question ‘What are the
necessary properties of law?’ Necessary properties that are specific to the law are essential
properties of law.39 Essential or necessary properties of law are those properties without
which law would not be law. They must be there, quite apart from space and time, wherever
and whenever law exists. Thus, necessary or essential properties are at the same time
universal characteristics of law. Legal philosophy qua enquiry into the nature of law is,
therefore, an enterprise universalistic in nature.
To be sure, the question as to whether there exist necessary properties of law, properties
that define its nature, can be contested and has often been contested. Here the thesis will be
defended that law necessarily comprises a real or factual and an ideal or critical dimension.
This might be termed the dual-nature thesis. A central element of the real dimension of law is
coercion or force. A central element of its ideal dimension is a claim to correctness, which
includes a claim to moral correctness and which, if violated, implies legal defectiveness in
normal cases and legal invalidity in extreme cases. With an eye to establishing that both
coercion and the claim to correctness are necessary or essential properties of law, appeals to
intuitions are of no help at all. Talk about the nature of law makes sense only if arguments are
at hand. In this way, the question of the nature of law leads directly to the question of
arguments about the nature of law.

B. Concept
At exactly this point a bridge can be constructed between the nature and the concept of law,
for arguments about the nature of law stand in a close relation to arguments about the concept
of law. Close relations, however, do not exclude differences. According to Joseph Raz, the
difference between concept and nature is fundamental. The concept of law is said to be
parochial, whereas the nature of law is universal:
While the concept of law is parochial, that is, not all societies have it, our inquiry is universal in that it explores the
nature of law wherever it is to be found.40

The ‘parochial nature’41 of the concept, Raz contends, is not a property specific to the
concept of law. Rather, it is a characteristic of all concepts: ‘all concepts are parochial’.42 The
reason for this is that they are ‘the product of a specific culture’.43
Only the concept of law is of interest here. Is it really the case that the concept of law can
be distinguished from the nature of law on the ground that the former is parochial, that is,
particular, whereas the latter is universal? One has to answer, yes and no. The reason for this
mixed reply turns on the twofold character of concepts. To be sure, the genesis of concepts
depends on culture. As products of a culture, concepts are socially established rules that
concern the meaning of words. To this extent, concepts have a conventional character. They
are conventional rules of meaning. But concepts—and this is the other side of the coin—are
conventions of a special kind. They claim, as Kant puts it, to be ‘adequate to the object’.44 In
this way, they are intrinsically related to the correctness or truth of the propositions
constructed by means of them. This claim to adequacy necessarily connects the concept of a
thing with its nature. With concepts—as part of a practice that is intrinsically connected with
truth, justification, intersubjectivity, validity, objectivity, and reality—one strives to grasp the
nature of the things to which they refer as perfectly, as correctly, as possible. This is the non-
conventional or ideal dimension of concepts. To the degree to which those who use a concept
are successful in fulfilling the claim to adequacy necessarily raised by the use of that concept,
to that degree the concept corresponds to the nature of its object. And it has universal validity
to the degree it corresponds to its object. Thus, the ascription of parochiality to concepts has
to be restricted. Concepts, as always on the path to the nature of those things to which they
refer, are in part parochial or conventional and in part universal.
This dual nature of concepts explains why an analysis of the concept of law can be, at the
same time, an analysis of the nature of law. If ‘concept’ is understood as ‘adequate concept’,
the question ‘What is the concept of law?’ can always be substituted for the question ‘What is
the nature of law?’ and vice versa. This is the reason why H. L. A. Hart’s The Concept of Law
can be read as a book about the concept of law and equally well as a book about the nature of
law.
This is not to say, however, that the other side of the coin, that is, concepts as conventional
rules of meaning, has no role in philosophical analysis. Concepts as conventional rules are
indispensable for the identification of the object of analysis. Without a concept of law qua
conventional rule, we would not know what we are referring to when we undertake an
analysis of the nature of law. Moreover, while the analysis of the actual use of language is, as
J. L. Austin aptly remarks, ‘not the last word’, it provides a starting point for analysis, as a
‘first word’.45
 IV. The Dual Nature of Law

The basis of non-positivism as defended here is the thesis that the single- most essential
feature of law is its dual nature. The thesis of the dual nature of law presupposes that there
exist necessary properties of law belonging to its factual or real dimension, as well as
necessary properties belonging to its ideal or critical dimension. Coercion is an essential
feature found on the factual side, whereas the claim to correctness is constitutive of the ideal
dimension.

A. Coercion
The necessity of coercion or force is the easier case. It seems to be quite natural to argue,
first, that a system of rules or norms that in no case whatever authorizes the use of coercion
or sanction—not even in the case of self-defence—is not a legal system, and that, second,
this is the case owing to conceptual reasons reflected in the actual use of language. Would
anyone be inclined to use the expression ‘law’ in connection with such a system of rules?
Conceptual reasons of this kind, however, have little force of their own. Concepts reflected in
the actual use of language are, as already explained, in need of modification once they prove
not to be adequate to their object or—to put it in another way—once a divergence from the
nature of the objects to which they refer appears. It is of course possible not only to argue for
the inadequacy of a concept but also to defend its adequacy. To include coercion in the
concept of law is adequate to its object, the law, because it mirrors a practical necessity
essentially connected with law.46 Coercion is necessary if law is to be a social practice that
fulfils its basic formal purposes as defined by the values of legal certainty and efficiency.
This practical necessity is the reason why the conceptual necessity implicit in the use of
language is based not merely on a convention but also on the nature of the thing to which the
concept refers. It is, in this sense, an absolute necessity.
The argument presented thus far has, however, a weak point. One might grant that
coercion is necessarily connected with legal certainty and efficiency but object that there
exists no necessary connection between law and either of these values. This leads to the
question of how values, purposes, or functions can be conceived as standing in a necessary
relation to law.47 The answer is that they are so connected because the claim to correctness
necessarily connected with law necessarily refers to them. The reasons for this answer can
only be sketched here. I will confine myself to the value of legal certainty. The argument
starts with the assumption that morality as such does not suffice to resolve problems of social
coordination and cooperation.48 The argument continues with the premise that morality
demands a resolution of these problems in order to avoid the moral costs of anarchy. To these
two premises the statement is added that those problems can only be resolved by law qua
enterprise that strives to realize the value of legal certainty. From this it follows that morality
requires law qua enterprise that strives to realize the value of legal certainty. Moral
correctness, therefore, includes the demand of law qua enterprise that strives for legal
certainty. This will suffice to establish a necessary connection between law and the value of
legal certainty provided that two further theses are true. The first says that law necessarily
raises a claim to correctness, the second says that this claim necessarily comprises moral
correctness. Something more on this will be said in the next section. Here it shall only be
noted that the correctness thesis, if true, plays a central role not only with respect to the ideal
or critical dimension of law but also with respect to its factual or real dimension. The reason
for this is that moral correctness comprises formal or procedural as well as substantive or
material correctness.
As far as the dispute between positivism and non-positivism is concerned, the most
pressing problems occur on the substantive side of the claim to correctness, namely, where
formal correctness is accompanied by substantive incorrectness, in particular, by extreme
substantive incorrectness.49 In what follows, two questions will be addressed: first, whether
moral incorrectness necessarily brings about legal incorrectness, and, second, whether, as per
the Radbruch Formula, extreme moral incorrectness necessarily results in legal invalidity.

B. Correctness
With respect to the thesis that the claim of law to correctness is the source of a necessary
relation between law and morality, that is, the correctness thesis, three objections arise.
According to the first objection, it is not true that law necessarily raises a claim to
correctness. There can be law quite apart from such a claim. The answer to this objection
consists in demonstrating that the claim to correctness is necessarily implicit in law. The best
means of demonstration is by means of the method of performative contradictions.50 An
example of a performative contradiction is the fictitious first article of a constitution that
reads: ‘X is a sovereign, federal, and unjust republic.’ It is scarcely possible to deny that this
article is somehow absurd. The idea underlying the method of performative contradiction is
to explain the absurdity as stemming from a contradiction between what is implicitly claimed
in framing a constitution, namely, that it is just, and what is explicitly declared, namely, that
it is unjust. Much could be said about whether this explanation is sound, and whether it really
shows that the claim to justice, which is a special case of the broader claim to correctness,51
is necessarily raised. This point will not, however, be elaborated here. The question of
whether law necessarily raises a claim to correctness is not the main issue with respect to
correctness in the debate over positivism versus non-positivism. No less a proponent of
positivism than Joseph Raz, when he argues ‘that the law necessarily claims legitimate
authority’,52 comes quite close to the thesis that law necessarily raises a claim to correctness.
The second possible objection to the correctness thesis grants the point that law raises a
claim to correctness but contests the view that the claim of law to correctness has anything to
do with morality. With an eye to meeting this objection, one addresses those cases in which
first, the reasons based on positive law—that is, source-based reasons—have run out, and
second, reasons based on justice—that is, moral reasons—are available. In order to meet the
objection, one has to show that in such cases, the decision at issue has to be grounded on
moral reasons. This point, too, will not be elaborated here, for it, too, is not a point crucial for
the question of whether positivism or non-positivism is right. A positivist can grant the point
that law’s claim to correctness comprises a claim to moral correctness but contest the claim
that this amounts to a necessary connection between legal validity or legal correctness and
morality. Raz’s thesis ‘that it is essential to the law that it claims to have legitimate, moral,
authority’53 seems to fit this reading of law’s claim to correctness well.
The third objection is the decisive one. It grants the point that law necessarily raises a
claim to correctness and that this claim is necessarily connected with morality, but it goes on
to insist that all this is compatible with positivism as well as with non-positivism. It is with
this thesis that I should like to take issue.
Perhaps an example will be helpful. Let us imagine a case in which the authoritative
material allows for two different interpretations. A single additional argument is available,
which is a moral argument that cannot either be reduced or traced back to a source. The
moral argument speaks in favour of the first interpretation, rejecting, then, the second
interpretation. I think that non-positivists are in agreement here with positivists who, like
Joseph Raz, assume that ‘judges are subject to morality anyway’.54 That is, we ought to
adopt the first interpretation, backed by the correct moral argument, and not the morally
mistaken second interpretation. Still, positivists and non-positivists disagree sharply on how
to understand or interpret this.55 Positivists say that we have to interpret what takes place as a
law-making act that transforms moral considerations into law on the basis of legal
empowerment and legal empowerment alone. If this thesis were true, if from a legal point of
view it were merely a question of law-making or issuance based on legal power, then, if the
judge chose the morally mistaken interpretation, he would nevertheless be making a legally
perfect decision, a decision that counts in all legal aspects as being at the highest level. My
rejoinder is that this decision would not be a legally perfect decision in all aspects. Due to the
fact that the claim to correctness necessarily raised by law necessarily comprises an ideal
dimension as well as an authoritative dimension, a judge who chose a morally mistaken
interpretation in a case in which the positive law allows as well for a morally correct
interpretation would not be making a legally perfect decision. In such cases, moral
incorrectness implies legal incorrectness. To be sure, there are many cases that are far more
complex than the simple constellation set out here. This constellation suffices, however, to
show that there exists a necessary connection between moral and legal correctness. This
connection has, as such, only a qualifying character.56 Nevertheless, this qualifying
connection brings about a fundamental shift in our picture of law.

V. What the Law Is and What It Ought to Be

The question remains of whether there also exists a classifying connection as defined by the
Radbruch Formula, which says that extreme injustice is not law. To be sure, the Radbruch
Formula cannot be deduced from the correctness thesis. The correctness thesis, taken alone,
refers only to legal defectiveness. And legal defectiveness as such does not imply legal
invalidity. This is a corollary of the dual nature of law. Law is, at one and the same time,
essentially authoritative and essentially ideal. All defects on the ideal side are legal defects,
but by no means all of these defects have the wherewithal to undermine what has been
established as law by the authoritative side. To take this further step, additional reasons are
necessary.
 These additional reasons must comprise moral reasons. Moral reasons are normative
reasons. The moral or normative reasons standing behind the Radbruch Formula comprise
human or fundamental rights. This makes it possible to give expression to non-positivism in
normative terms: ‘[A] non-positivistic concept of law must of necessity be applied in order to
protect the fundamental rights of the citizen.’57 It is at exactly this point that one of the main
problems of non-positivism comes to light. It can be cast in terms of the following question:
‘Is it possible to apply normative arguments in order to determine the nature and the concept
of law?’ My answer is affirmative.
On first glance, however, a negative answer may seem to be right. To determine the nature
of law is to say what the law is, and, as noted, the concept of law has to be defined with an
eye to its nature. Is there any basis for considering how the law ought to be as a step in
determining what the law is? It comes as no surprise to learn that positivists stress just this
point. Raz, for instance, argues that the nature of law is a matter of theory and not of
advocacy, and that theory is concerned exclusively with ‘how things are’.58 Similarly, Andrei
Marmor insists:
Once we admit that in order to get to something like the Radbruch formula, you need a normative argument, you rely
on a moral argument to tell us something about the law. It is no longer the case that the conclusion is about the nature
of law. As simple as that.59

Is it really as simple as that?

The reasons as to why it is more complex stem from the fact that it is a part of the nature
of law that there exists an observer’s perspective as well as a participant’s perspective.60 The
difference between these two perspectives is that the observer asks and adduces arguments on
behalf of a position that reflects how legal questions are actually decided in a legal system,
whereas the participant asks and adduces arguments on behalf of what he deems to be the
correct answer to a legal question in the legal system in which he finds himself. The
observer’s perspective is defined by the question ‘How are legal decisions actually made?’,
the participant’s by the question ‘What is the correct legal answer?’
These two perspectives correspond to two different views about what the law is: a
restricted view and a comprehensive view. According to the restricted view, what the law is
depends exclusively on what has actually been issued and is socially efficacious. It is a
matter of social fact. According to the comprehensive view, what the law is depends on what
it is correctly taken to be. This view constitutes the participant’s perspective. What is
correctly taken to be the law depends not only on social facts but also on moral correctness.
In this way, what the law ought to be finds its way into what the law is. This serves to explain
the Radbruch Formula, which says not that ‘extreme injustice should not be law’ but, rather,
that ‘extreme injustice is no law’. Much more could and should be said about the difference
between the observer’s ‘is’ and the participant’s ‘is’. Perhaps what has been said will suffice,
however, to indicate what non-positivists mean when they claim that their more complex
explication is closer to the nature of law than the simpler explication offered by the
positivists.
 1 Robert Alexy, ‘A Defence of Radbruch’s Formula’, in Recrafting the Rule of Law: The Limits of Legal Order, ed. David
Dyzenhaus (Oxford: Hart, 1999), 15–39, at 18–19.
2
Robert Alexy, The Argument from Injustice. A Reply to Legal Positivism (1992), trans. Bonnie Litschewski Paulson and
Stanley L. Paulson (Oxford: Clarendon Press, 2002), 3, 14–19.
3 Joseph Raz, ‘Legal Positivism and the Sources of Law’, in Raz, The Authority of Law. Essay on Law and Morality, 2nd

edn (Oxford: Oxford University Press, 2009), 37–52, at 41, 47.

4 Decisions of the German Federal Supreme Court in Civil Cases (BGHZ), 16, 350 (353–4).
5
Decisions of the German Federal Constitutional Court (BVerfGE), 23, 98 (106).
6
On the second part see Alexy, ‘A Defence of Radbruch’s Formula’ (n. 1 above), 15–16.
7
Gustav Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law’ (1946), trans. Bonnie Litschewski Paulson and
Stanley L. Paulson, Oxford Journal of Legal Studies 26 (2006), 1–11, at 7.
8 Gustav Radbruch, Vorschule der Rechtsphilosophie (1948), in Gustav Radbruch Gesamtausgabe, ed. Arthur Kaufmann,

vol. 3 (Heidelberg: C. F. Müller, 1990), 121–227, at 154.

9 See H. L. A. Hart, The Concept of Law, 2nd edn (Oxford: Clarendon Press, 1994), 128.
10 Joseph Raz, ‘The Autonomy of Legal Reasoning’, Ratio Juris 6 (1993), 1–15, at 7–9.
11 See Robert Alexy, ‘On Two Juxtapositions: Concept and Nature, Law and Philosophy. Some Comments on Joseph

Raz’s “Can There Be a Theory of Law?” ’, Ratio Juris 20 (2007), 162–9, at 166–9.
12 The separation thesis is sometimes expressed by means of the simple phrase: ‘There is no necessary connection
between law and morality.’ If this is interpreted as shorthand for the more precise version: ‘There is no necessary connection
between legal validity or legal correctness on the one hand, and moral merits and demerits or moral correctness and
incorrectness on the other’, this creates no problems. It is, however, possible to interpret the first phrase in such a way that
its negation, that is, ‘There are necessary connections between law and morality’, is compatible with positivism. Raz has
done so by referring the concept of a necessary connection to relations between law and morality that have, as such, nothing
to do with the moral merits of law or its moral correctness. One of his examples runs as follows: ‘Given value pluralism,
necessarily no state or legal system can manifest’ to the highest degree ‘all the virtues or all the vices there are’ (Joseph Raz,
‘About Morality and the Nature of Law’, The American Journal of Jurisprudence 48 (2003), 1–15, at 3). If value pluralism
is, as Raz proposes, ‘[d]efined as the existence of a plurality of values which cannot be instantiated in the life of any single
human being’ (ibid.), than it is, indeed, necessarily true that no legal system can realize or help to realize to the highest
degree all competing moral values. This necessity, however, is a logical necessity concerning the relation between legal
systems and competing moral values. It has no direct bearing on the problem of positivism, for it has, as such, nothing to do
with the relation between legal validity or legal correctness, on the one hand, and moral merits or moral correctness, on the
other. In order to bear on this relation, a premise such as ‘All values have to be treated equally by law’ would have to be
added. If such a premise, or its negation, were necessarily connected with law, Raz’s example would become relevant to the
problem of positivism. But this is not what he maintains. Something similar is true of Raz’s other examples of necessary
relations between law and morality; see Robert Alexy, ‘Agreements and Disagreements’, Anales de la Cátedra Francisco
Suárez 39 (2005), 737–42, at 739–40.
13 Raz, ‘Legal Positivism and the Sources of Law’ (n. 3 above), 47.
14 Jules Coleman, ‘Authority and Reason’, in The Autonomy of Law, ed. Robert P. George (Oxford: Clarendon Press,
1996), 287–319, at 316. The difference between inclusive and exclusive positivism allows for a further distinction, that
between a separability thesis and a separation thesis. Inclusive positivism argues only for separability, whereas exclusive
positivism insists on separation. For reasons of simplification, however, no use will be made of this distinction. The
separation thesis as defined above relates, strictly speaking, to separability, because it does not say that there are necessarily
no connections, but only that there are no necessary connections. Separation, however, implies separability. To reject
separability is, therefore, to reject separation. This allows for the simpler terminology used here.
15 It might be noted, in passing, that about half a century earlier, Hans Kelsen had already introduced the main thesis of
what is now termed ‘inclusive positivism’: ‘In applying a statute, there may well be room for cognitive activity beyond
discovering the frame within which the act of application is to be confined; this is not cognition of the positive law, however,
but cognition of other norms, which can now make their way into the law-creating process, the norms, namely, of morality,
of justice—social value-judgements customarily characterized with the catch-phrases “welfare of the people”, “public
interest”, “progress”, and so on. From the standpoint of the positive law, nothing can be said about their validity and whether
or not they can be identified. From this vantage-point, all such determinations can only be characterized negatively: they are
determinations that do not stem from the positive law itself. In relation to the positive law, the legal act is free of such
constraints, that is, the authority called upon to act is free to do so according to his own discretion unless the positive law
itself authorizes some metalegal norm such as morality, justice, and so on. This norm, however, would be transformed
thereby into a norm of the positive law.’ (Hans Kelsen, Introduction to the Problems of Legal Theory (1934), trans. Bonnie
Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon Press, 1992), 83).
16 One may well ask for a more precise determination of the role played by contradiction, on the one hand, and by

contrariety, on the other, in the relationship between and among exclusive positivism, inclusive positivism, and non-
positivism. The answer is straightforward. ‘I’ shall represent ‘Law includes morality’. Then, prefacing ‘I’ with the necessity
operator ‘□’ yields ‘□I’. ‘□I’ expresses non-positivism, namely: ‘It is necessary that law include morality’. By contrast,
exclusive positivism says: ‘It is necessary that law not include morality’, that is, ‘□¬I’. ‘□I’ and ‘□¬I’ stand in a relationship
of contrariety for the one excludes the other without stemming from its negation. Inclusive positivism is the conjunction of
the negation of both exclusive positivism and non-positivism, namely: ‘¬□¬I & ¬□I’, which says: ‘It is neither necessary
that law not include morality nor necessary that law include morality.’ Each of the members of this conjunction stands in a
relationship of contradiction to a position not prefaced by negation, that is, in a relationship of contradiction either to
exclusive positivism (□¬I) or to non-positivism (□I). The conjunction as a whole, that is, inclusive positivism, stands to both
non-positivism and exclusive positivism in a relationship of contrariety. Each of the three excludes the others without
stemming from the negation of any of the others. Thus, the conjunction of the subcontraries reflects a triad, which for its part
is understood in terms of contrariety.
17 Robert Alexy, ‘Effects of Defects—Action or Argument? Thoughts about Deryck Beyleveld and Roger Brownsword’s

Law as a Moral Judgment’, Ratio Juris 19 (2006), 169–79, at 173. For a related approach, which, however, uses the
expressions ‘exclusive’ and ‘inclusive natural law’ in a different way, see Massimo La Torre, ‘On Two Distinct and
Opposing Versions of Natural Law: “Exclusive” versus “Inclusive” ’, Ratio Juris 19 (2006), 197–216, at 200, 207.
18
Deryck Beyleveld and Roger Brownsword, Human Dignity in Bioethics and Biolaw (Oxford: Oxford University Press,
2001), 76.
19 Deryck Beyleveld and Roger Brownsword, Law as a Moral Judgment, 2nd edn (Sheffield: Sheffield Academic Press,
1994), 369.
20 Ibid.
21 Alexy, ‘Effects of Defects—Action or Argument? Thoughts about Deryck Beyleveld and Roger Brownsword’s Law as

a Moral Judgment’ (n. 17 above), 171.

22
Another example might well be the interpretation of Aquinas’s concept of ‘law in a secondary sense’ as found in John
Finnis, Natural Law and Natural Rights, 2nd edn (Oxford: Oxford University Press, 2011), 364–6.
23 Immanuel Kant, The Metaphysics of Morals, trans. and ed. Mary J. Gregor, in The Cambridge Edition of the Works of
Immanuel Kant. Practical Philosophy (Cambridge: Cambridge University Press, 1996), 353–603, at 393; AA 6, 237.
24 Ibid., 406; AA 6, 252.
25 Ibid., 393; AA 6, 237.
26 Ibid. (trans. altered).
27 Ibid., 456; AA 6, 312.
28 Immanuel Kant, ‘On the Common Saying: That May be Correct in Theory, but is of No Use in Practice’, trans. and ed.

Mary J. Gregor, in The Cambridge Edition of the Works of Immanuel Kant. Practical Philosophy (n. 23 above), 273–309, at
298; AA 8, 299.
29 Ibid.
30 Jeremy Waldron, ‘Kant’s Legal Positivism’, Harvard Law Review 109 (1996), 1535–66, at 1566.
31 Kant, The Metaphysics of Morals (n. 23 above), 505 (trans. altered); AA 6, 372.
32 Ibid., 506 (trans. altered); AA 6, 372.
33 Immanuel Kant, Critique of Pure Reason, trans. Werner S. Pluhar (Indianapolis, Ind.: Hackett, 1996), 364; A 317, B
374.
34 Kant, The Metaphysics of Morals (n. 23 above), 505 (trans. altered); AA 6, 371.
35 Immanuel Kant, ‘Idea for a Universal History with a Cosmopolitan Purpose’, trans. H. B. Nisbet, ed. Hans Reiss, in

Kant, Political Writings, 2nd edn (Cambridge: Cambridge University Press, 1991), 41–53, at 45 (trans. altered); AA 8, 22.
Kant uses both the concept of a ‘perfect legal constitution’ (Kant, The Metaphysics of Morals (n. 23 above), 505 (trans.
altered); AA 6, 371) and the concept of a ‘perfectly just civil constitution’ (Kant, ‘Idea for a Universal History with a
Cosmopolitan Purpose’, 46; AA 8, 22). These two concepts are connected by the fact that, according to Kant, a constitution
that is not perfectly just is not a perfect legal constitution.
36 Kant, The Metaphysics of Morals (n. 23 above), 506; AA 6, 372.
37 Ibid., 505 (trans. altered); AA 6, 372.
38
See Alexy, The Argument from Injustice (n. 2 above), 26.
39
Robert Alexy, ‘The Nature of Legal Philosophy’, Ratio Juris 17 (2004), 156–67, at 163 (in this volume: Chapter 1, 7–
17, at 13).
40 Joseph Raz, ‘Can There Be a Theory of Law?’ in The Blackwell Guide to the Philosophy of Law and Legal Theory, eds

Martin P. Golding and William A. Edmundson (Oxford: Blackwell, 2005), 324–42, at 332.
41
Ibid., 335.
42
Joseph Raz, ‘On the Nature of Law’, Archives for Philosophy of Law and Social Philosophy 82 (1996), 1–25, at 5.
43
Ibid.
44 Kant, Critique of Pure Reason (n. 33 above), 680; A 728, B 756. In this context Kant refers, among other things, to the

concepts of water, gold, and law.

45 John L. Austin, ‘A Plea for Excuses’, in Austin, Philosophical Papers, 2nd edn, eds J. O. Urmson and G. J. Warnock

(Oxford: Oxford University Press, 1970), 175–204, at 185.

46 See Robert Alexy, ‘The Nature of Arguments about the Nature of Law’, in Rights, Culture, and the Law. Themes from

the Legal and Political Philosophy of Joseph Raz, eds Lukas H. Meyer, Stanley L. Paulson, and Thomas W. Pogge (Oxford:
Oxford University Press, 2003), 3–16, at 8–9.
47 A famous example of a necessary relation of values, purposes, or functions to the law is Radbruch’s connection of
justice, purposiveness, and legal certainty qua elements of the idea of law with the concept of law; Gustav Radbruch, Legal
Philosophy (1932), trans. Kurt Wilk, in The Legal Philosophies of Lask, Radbruch, and Dabin (Cambridge, Mass.: Harvard
University Press, 1950), 43–224, at 107–8. See on this Stanley L. Paulson, ‘On the Background and Significance of Gustav
Radbruch’s Post-War Papers’, Oxford Journal of Legal Studies 26 (2006), 17–40, at 31–2.
48
Alexy, ‘The Nature of Arguments about the Nature of Law’ (n. 46 above), 8.
49
This does not mean that the problems found on the formal side of the claim to correctness can be neglected. It is the
main tenet of positivism that the legal validity of a norm depends on its sources and not on its merits or demerits. Given this
tenet, not only substantive but also formal merits and demerits are excluded as criteria of legal validity. See John Gardner,
‘Legal Positivism: 5½ Myths’, The American Journal of Jurisprudence 46 (2001), 199–227, at 208–10.
50 Alexy, The Argument from Injustice (n. 2 above), 35–9.
51
Justice counts as a special case of correctness, for justice can be defined as correctness of distribution and
compensation. See Robert Alexy, ‘Giustizia come correttezza’, Ragion pratica 9 (1997), 103–13, at 105.
52 Raz, ‘On the Nature of Law’ (n. 42 above), 16.
53 Ibid., 6 (emphasis added).
54 Joseph Raz, ‘Incorporation by Law’, Legal Theory 10 (2004), 1–17, at 12.
55 Raz describes the reasoning that has to take place in such cases as reasoning ‘about how legal disputes should be

settled according to law’ or as reasoning ‘about how courts should decide cases in accordance with law’; Raz ‘The
Autonomy of Legal Reasoning’ (n. 10 above), 2–3. This seems to allow for three different interpretations, namely, that the
moral reasoning in the open area of law is reasoning ‘according to law’ or ‘in accordance with law’, first, because it does not
violate the law, or, second, because it is required by some sources of the respective legal system, or, third, because it is
required by the law qua law. The third reading, however, would lead to non-positivism.
56 On the concept of a qualifying connection see Alexy, The Argument from Injustice (n. 2 above), 26; see also Robert
Alexy ‘On the Thesis of a Necessary Connection between Law and Morality: Bulygin’s Critique’, Ratio Juris 13 (2000),
138–47, at 144–6.
57 Alexy, The Argument from Injustice (n. 2 above), 58.
58 Raz, ‘On The Nature of Law’ (n. 42 above), 7.
59 Andrei Marmor, ‘Debate’, Anales de la Cátedra Francisco Suárez 39 (2005), 769–93, at 778.
60 See, on the one hand, Joseph Raz, ‘The Argument from Justice, or How not to Reply to Legal Positivism’, in Law,
Rights and Discourse, ed. George Pavlakos (Oxford: Hart, 2007), 17–35, at 22–5, and, on the other, Robert Alexy, ‘An
Answer to Joseph Raz’, ibid., 37–55, at 45–8.
 3
The Dual Nature of Law

The law has a dual nature, and it is this thesis that I wish to explicate. The dual-nature thesis
sets out the claim that law necessarily comprises both a real or factual dimension and an ideal
or critical one. In the definition of law, the factual dimension is represented by the elements
of authoritative issuance and social efficacy, whereas the ideal dimension finds its expression
in the element of moral correctness. Authoritative issuance and social efficacy are social
facts. If one claims that social facts alone can determine what is and is not required by law,
that amounts to the endorsement of a positivistic concept of law. Once moral correctness is
added as a necessary third element, the picture changes fundamentally. A non-positivistic
concept of law emerges. Therefore, the dual-nature thesis implies non-positivism.
To be sure, as thus stated the dual-nature thesis remains abstract and formal. In order to
arrive at concrete content and a clear structure, the thesis has to be explicated within a
system. The overarching idea of this system is the institutionalization of reason. The political
form manifested by the system is democratic or discursive constitutionalism. The system
itself is generated in three steps: the argument on behalf of the ideal dimension of law, the
argument on behalf of positivity, that is, the real dimension of law, and the reconciliation of
the ideal with the real.

I. The Ideal

A. The Claim to Correctness

At a first step, the ideal dimension of law has to be established. My argument turns on the
thesis that law necessarily raises a claim to correctness, and that this claim comprises a claim
to moral correctness. This claim to correctness is the source of the necessary relation between
law and morality.

1. Law is Capable of Making Claims

Against the correctness thesis many objections have been raised. Four are of special
significance. The first contests the notion that law is capable of making claims at all. Neil
MacCormick puts it this way: ‘[L]aw claims nothing.’1 His argument is, first, that law is a
‘normative order’, secondly, that normative orders are ‘[s]tates of affairs’, and, thirdly, that
states of affairs are, in contrast to persons, incapable of having intentions or making claims.2
MacCormick is, without doubt, right in maintaining that law as such is incapable of
raising, in a literal sense, any claim. In a literal or strict sense, claims can be raised only by
subjects having the capacity to speak and to act.3 Nevertheless, talk about the claim of law to
correctness seems to be sensible because this claim is raised by persons, in particular, though
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 NOTES.
[1] Thomas Hutchinson, the historian of Massachusetts, attributed
this document to Francis Higginson, but Alexander Young and
Robert C. Winthrop have shown that another draft of these
“Considerations,” in the handwriting of Forth Winthrop, and now
preserved in the Winthrop Papers, was probably inspired by John
Winthrop. Another copy in the English State Paper Office is
endorsed “White of Dorchester his instructions for the plantation
of New England.”
[2] Quote, i. e. quost, an obsolete spelling of coast.
[3] The manuscript now in the library of the Massachusetts
Historical Society, ends at this point, the following pages having
been lost since it was in the possession of Hutchinson. The
remainder of the journal of the voyage is reprinted from
Hutchinson’s “Collection of Original Papers relative to the History
of the Colony of Massachusetts Bay,” Boston, 1769.
[4] Gloucester harbor.
[5] These were the settlers who came with Maverick.
[6] The emigrants from Boston, England.
[7] The “Four Sisters” and the “Mayflower.”
[8] Increase Norwell, afterward Secretary of the Colony.
[A] Records of the Governor and Company of the Massachusetts
Bay in New England.—Boston, 1853.
INDEX
 INDEX

Aberden, 114.
Accomack, 113.
Accomintus, 113.
Aggawom, 113.
Air of New England, 29, 98.
Ancocisco, 113.
Ancociscos Mount, 113.
Anmoughcawgen, 113.
Ash trees, 26, 95.
Assurance (ship), 62.

Bahanna, 113.
Barley, 109.
Barties Isles, 114.
Barwick, 113.
Bass, 27, 97.
Bastable, 113.
Beans, 110.
Bears, 26, 95.
Beavers, 26, 95, 119.
Beech trees, 26, 95.
Beecher, Mr., 63, 119.
Berries, 25, 94.
Birch trees, 26, 95.
Birds, 31, 100.
Biscay ship, 65.
Black, Goodman, 76.
Boats, Fishing, 28, 97.
Borley, Capt., 64.
Boston, 113.
Boston (Eng.), 125.
Bows and arrows, 35, 105.
Brass, 35, 105.
Bricks, 23, 91.
Bright, Francis, 53, 54.
Bristow Bay, 113.
Brookelime, 25, 94.
Browne, Mr., 65.
Butter, 111.

Cambridge, 113.
Candles, 32, 102.
Cannon, 37, 60, 108.
Cape Ann, 26, 77, 78, 79, 95, 113.
Cape Cod, 113.
Cape James, 113.
Cape Tragabig sanda, 113.
Carrots, 25, 93.
Carvel, 25, 94.
Cattle, 23, 34, 60, 92, 104, 109, 118.
Cedar trees, 26, 95.
Charles I, 6.
Charles River, 22, 90, 113.
Charlestown, 37, 108.
Chawum, 113.
Cherries, 26, 94.
Cherton, 37, 108.
Chestnuts, 25, 94.
Chevit hills, 113.
Christopher Islands, 65.
Churches of Europe, 41.
Claybrook Parish (Eng.), 6.
Cloth, 25, 94.
Clothing for New England, 30, 100, 111.
Codfish, 27, 96.
Cordage, 25, 94.
Corn, 23, 35, 36, 92, 107, 109, 118, 120.
Cornwall (Eng.), 64.
Cowcastle (Eng.), 62.
Cowes (Eng.), 63.
Crabs, 28, 97.
Cucumbers, 25, 94.
Currants, 25, 94.
Cush, 28, 97.
Cypress trees, 26, 95.

Dartmouth (Eng.), 113.

Death of child, 66, 76;
of sailor, 75.
Deer, 26, 27, 95, 96.
Dog fell overboard, 69.
Dorchester (Eng.), 59, 60, 117.
Ducks, 31, 101.
Dunbarton, 114.
Dye stuffs, 26, 95.

Eagle, 31, 101.

Edenborow, 113.
Education, 41.
Eels, 28, 97.
Endecott, Gov., 5, 79.

Falmouth, 113.
Fast kept, 67, 71.
Filberts, 25, 94.
Files, 23, 91.
Fir trees, 26, 95.
Fires in New England, 32, 102.
Fish, 27, 96, 121.
Fishing nets, 28, 97.
Force, Peter, 8.
Four Sisters (ship), 60, 125.
Foxes, 26, 95.

Geese, 31, 101.

George (ship), 60, 79.
Gibs, Mr., 66.
Gloucester, 125.
Gnats, 33, 103.
Goats, 23, 60, 92, 118.
Gods, Indian, 36, 106.
Goffe, Mr., 69.
Gooseberries, 78.
Governor’s house, 36, 107.
Grain, 25, 93.
Grampus, 27, 96.
Grapes, 25, 94, 110.
Grass, 23, 92.
Graves, Mr., 109, 119.
Gravesend (Eng.), 61.
Gum, 26, 95.
Haddock, 28, 97.
Harbors, 27, 96.
Haughton’s Isles, 114.
Hawkes, 31, 101.
Health in New England, 29, 99.
Herbs, 25, 94.
Herring, 28, 97.
Higginson, Rev. Francis, 5-11, 54, 117, 125;
family of, 7;
health of, 29, 81, 99;
sickness of child, 30, 65, 100;
agreement with, 51;
sea journal of, 57;
sails from England, 59;
death of child, 66;
lands at Neihumkek, 79;
seasickness of wife, 81;
letter to friends at Leicester, 117.
Higginson, Mary, 63, 65.
Higginson, Samuel, 65, 68.
Hogs, 23, 27, 92, 96.
Horses, 23, 34, 60, 92, 104, 118, 119.
Household implements, 112.
Houses, 119.
Houses of Indians, 35, 106.
Hull, 113.
Hungaria, 109, 110.
Hutchinson, Gov. Thomas, 11, 125.

Iceberg, 72.
Indians, purchase corn, 24, 93;
dyes used by, 26, 95;
lights used by, 32, 102;
killed by a rattlesnake, 33, 104;
Saggamores of, 34, 104;
 number of, 34, 105;
destroyed by the plague, 34, 47, 105;
unable to use all the land, 34, 105;
have no settled places, 34, 105;
personal appearance, 35, 105;
clothing, 35, 105;
weapons, 35, 105;
utensils, 35, 106;
houses, 35, 106;
approve coming of Englishmen, 35, 106;
religion, 36, 106;
language, 36, 107;
title to land, 46;
place names, 113.
Ipswich, 113.
Isle of Wight, 62.

Johnson, Mr., 118.

Juniper trees, 26, 95.

Kenebecka, 113.

Land, abundance of, 34, 35, 104, 106.

Leather, 26, 95.
Leeks, 25, 94.
Leicester ( Eng.), 6, 117.
Leith, 113.
Lincolnshire (Eng.), 117, 118.
Lions, 26, 95.
Lion’s Whelp (ship), 60, 61, 66, 73, 74, 76.
Liverwort, 25, 94.
Lobsters, 28, 97.
London (Eng.), 59.

Mackerell, 27, 96.

Marble, 23, 91.
Marble-harbour, 23, 91.
Margate (Eng.), 61.
Martins, 26, 95.
Massachusetts, 113.
Massachusetts Bay, 22, 90.
Massachusetts Bay, settlement at, 37, 107.
Massachusetts Bay Company, 6.
Masts, 26, 95.
Matinack, 114.
Maverick, John, 125.
Mayflower (ship), 60, 125.
Mecadacut, 114.
Meere, Mr., 64.
Melons, 110.
Metinacus, 114.
Milk, 23, 92.
Minerals, 23, 91.
Molke, 26, 95.
Monahigan, 114.
Moose, 26, 95.
Mosquitoes, 33, 103.
Mulberries, 25, 94.
Mullet, 28, 97.
Mussels, 28, 97.

Names of places, 113.

Neihumkek, 78, 79, 113;
see also Salem.
New England, 21, 89;
soil, 22, 90, 109;
minerals, 23, 91;
growth of vegetables, 25, 93;
 woods, 26, 95;
wild beasts, 26, 95;
fish, 27, 96;
air, 29, 98;
seasons, 30, 100;
birds, 31, 101;
discomforts, 33, 103;
winters, 33, 103;
unoccupied land in, 34, 104;
condition of plantation in, 36, 107;
reasons for settling in, 41;
journal of voyage to, 57;
healthfulness, 82, 110;
clothing for, 111;
arms for, 111;
tools for, 111, 121;
household implements for, 112, 121;
places in, 113;
further emigration to, 117;
cost of transportation to, 119;
food for, 120.
“New-England’s Plantation,” manuscript sent to England, 7;
editions printed, 7;
reprinted, 8;
bibliographical description, 8;
census of known copies, 10;
fac-simile of first edition, 17;
reprint of third edition, 87.
Norwich, 114.
Nowell, Increase, 119, 125.
Nusket, 114.

Oak trees, 26, 95.

Oatmeal, 111.
Oil, 32, 102, 111.
Onions, 25, 94.
Otters, 26, 95.
Oxford, 113.
Oysters, 28, 97.

Parsnips, 25, 93.

Partridges, 31, 101.
Passasaquack, 113.
Pease, 25, 93, 110, 111.
Pennobscot, 114.
Pennyroyal, 25, 94.
Pemmayquid, 114.
Pigeons, 31, 101.
Pine trees, 26, 32, 95, 102.
Pitch, 26, 95.
Plague destroyed Indians, 34, 105.
Planters at Neihumkek, 36, 107.
Plymouth, 24, 93, 113.
Portsmouth (Eng.), 62.
Pumpkins, 25, 94, 110.

Raspberries, 25, 94.

Rattlesnakes, 33, 103.
Roses, 25, 78, 94.

Sagadahock, 113.
Sagoquas, 113.
St. Johns towne, 114.
Salem, Landing at, 6;
name, 22, 37, 90, 107, 113;
harbor, 27, 96;
wells, 29, 98;
houses, 36, 37, 107, 108;
number of settlers, 36, 107;
harbor, 79.
Salmon, 27, 97.
Salt, 28, 98.
Saltpeter, 26, 95.
Sandwich, 113.
Sassafras, 26, 95.
Sassanows Mount, 113.
Schools of Europe, 41.
Seasickness, 62, 64.
Segocket, 114.
Sheep, 118.
Ships, 60.
Shuter’s hill, 113.
Sickness, 29, 62, 64, 99.
Skate, 28, 97.
Skelton, Rev. Samuel, 6, 53, 54.
Smallpox, 65, 66, 70, 75.
Smith, Rev., 67.
Smith, Capt. John, 114.
Smith’s Isles, 113.
Snake weed, 33, 104.
Snakes, 33, 103.
Snowdon hill, 113.
Soap ashes, 26, 95.
Soil of New England, 22, 90.
Soldiers, 36, 107.
Sorrel, 25, 94.
Southampton, 113.
Sowocatuck, 113.
Sparke, Michael, 17, 87.
Spices, 112.
Spruce trees, 26, 95.
Squirrels, 26, 95.
Stone, Building, 23, 95.
Storm at sea, 69.
Strawberries, 25, 31, 78, 94, 101.
Sturgeon, 28, 97.
Sumach, 26, 95.

Talbot (ship), 60, 61.

Tar, 26, 95.
Thornback, 28, 97.
Tools for New England, 111.
Torches, 32, 103.
Totan, 113.
Trees, 26, 95.
Turbot, 28, 97.
Turkeys, 31, 101.
Turnips, 25, 93.
Turpentine, 26, 95.

Vegetables, 25, 93.

Vinegar, 111.
Voyage to New England, 59.

Walnuts, 25, 94.

Wapping (Eng.), 119.
Watercress, 25, 94.
Weapons of Indians, 35, 105.
Wells, 29, 98.
Whales, 27, 96.
White, John, 125.
White benjamin gum, 26, 95.
Whitethorn, 25, 94.
Wild cats, 26, 95.
Willow trees, 26, 95.
Willowbies Isles, 114.
Winship, George Parker, 11.
Wintersavory, 25, 94.
Winter season, 33, 103.
Winthrop, Forth, 125.
Winthrop, Robert C., 125.
Wolves, 26, 95.
Wood, William, 7.
Woods, 26, 94.

Yarmouth (Eng.), 63.

Young, Alexander, 8, 125.
TRANSCRIBER’S NOTE
Introduction, page 9: ‘D[4]’ replaced by ‘D(4)’ to avoid confusion with footnote
numbering.
Introduction, page 9: ‘Third Editon’ replaced by ‘Third Edition’.
Index, page 131: ‘Sagamores of’ replaced by ‘Saggamores of’.
Index, page 131: ‘34, 195;’ replaced by ‘34, 105;’.
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