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Year: 2018

Legal philosophy and legal theory

Mahlmann, Matthias

DOI: https://doi.org/10.24921/2018.94115924

Posted at the Zurich Open Repository and Archive, University of Zurich

ZORA URL: https://doi.org/10.5167/uzh-167330
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The following work is licensed under a Creative Commons: Attribution 4.0 International (CC BY 4.0)
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Originally published at:

Mahlmann, Matthias (2018). Legal philosophy and legal theory. In: Thommen, Marc. Introduction to
Swiss Law. Berlin: Carl Grossmann Verlag, 81-107.
DOI: https://doi.org/10.24921/2018.94115924
 Matthias Mahlmann
Legal Philosophy and
Legal Theory

I. The Problems of the Philosophy of Law and Legal Theory . . . . . . . . 83

II. A Map of Philosophy of Law and Legal Theory . .. .. .. .. .. .. .. . . 85

1. Descriptive and Analytical Theory . . . . . . . .. .. .. .. .. .. .. . . 85
2. Explanatory Theories . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. . . 87
3. Normative Theory . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. . . 88
4. The Relationship of Law and Morality . . . . . .. .. .. .. .. .. .. . . 90
5. Epistemology . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. . . 93
6. Ontology . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. .. .. .. .. . . 93
7. Grotius and Methodological Secularism . . . .. .. .. .. .. .. .. . . 94
8. The Question of Universalism . . . . . . . . . . . .. .. .. .. .. .. .. . . 95

III. The Point of Philosophy of Law and Legal Theory . . . . . . . . . . . . . . 97

IV. Theory of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

V. A Concept of Justice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

VI. The Birth of the Human Rights Idea . . . . . . . . . . . . . . . . . . . . . . . . . 101

VII. Contemporary Human Rights Theory . . . . . . . . . . . . . . . . . . . . . . . .103

Selected Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .105

© 2018 Matthias Mahlmann, CC-BY 4.0, DOI: 10.24921/2018.94115924.04

 83

I. e a l
Philosophy of Law
and Legal Theory

A good starting point for reflecting on legal philosophy and legal theory and
its purpose, content, and profound significance in any given legal culture is
the following observation: law is a mandatory normative order. It is enforced,
ultimately, by the threat and application of physical force. Coercive force may
li ii i i è l li
agents or, in extreme cases, even military operations to defend certain prin-
ciples of international law. This characteristic of the law raises a crucial issue:
how do we know that the law being enforced is, in fact, legitimate? What are
the criteria for well-justified law?
These are vitally important questions because the mandatory character of
law seems to necessarily imply that the law enforced has a real claim to legiti-
macy. To enforce and maintain a normative order with physical force without
such a claim is an indefensible enterprise.
Thus, it is important that we endeavour to find answers to questions of legi-
timacy, although this is certainly no easy task. Examples of such questions
can be found in various areas of the law. For instance, constitutional states
based on fundamental rights are facing new threats posed by international
terrorism. Is it legitimate to increasingly curtail fundamental rights because
i ?I è i li l ?I
there such a line at all?
It has recently been proposed that the international order should be based
on the narrow self-interest of nations, pursued with their respective power.1 Is
that the proper guiding principle for the international community or, on the
contrary, will this be the highroad to its destruction?
What about the refugee crisis? Are states’ national laws well-justified in this
area? Does this body of law properly reflect the moral obligations affluent

1 D e , Remarks to the 72nd Session of the United Nations General Assembly, 19

September 2017.
84 Matthias Mahlmann: Legal Philosophy and Legal Theory

states and citizens of the Global North have towards the people seeking shel-
ter and a better life? Or are these laws too generous? What about international
refugee law: do its principles rest on solid grounds? An example to consider
is the principle of non-refoulement, a ius cogens norm that prevents a coun-
try from returning asylum seekers to a country in which they would face the
likely danger of persecution based on race, religion, nationality, membership
of a particular social group or political opinion.2 Is it justified?
Such questions can be supplemented by traditional problems of legal reflec-
tion like: what are the foundations of public authority, of states in particular?
How do we sketch the contours of a justified order of relations between pri-
vate parties? What are the bases of guilt, responsibility, and punishment? Are
human rights universally justified?
These kinds of questions lead to important problems of justice, freedom,
dignity and solidarity and, importantly, such concepts’ often contentious con-
crete meaning. To attempt to answer such questions consistently and cohe-
rently with reasons understandable to all is the core task of legal theory and
legal philosophy.
The following remarks will outline, first, some central topics of legal theory
and legal philosophy to roughly map the contours of the field (II.). They will
then explain why spending some time with the questions of legal theory and
legal philosophy is not an exotic occupation. On the contrary, serious, com-
mitted work with the law is hard to imagine without a substantial reflection
about its nature, structure and legitimate content (III.). The attention will
turn then to two paradigmatic questions in more detail to illustrate the dis-
course and some findings of current reflections about justice (IV. and V.) and
human rights (VI. and VII.).
A note on terminology: Sometimes legal theory is understood as a predo-
minantly analytic enterprise whereas legal philosophy deals with normative
questions. The international discourse on these topics, however, mostly uses
these terms interchangeably. These remarks will follow this latter example.

2 See Article 33 of the Convention and Protocol relating to the Status of Refugees, 1951
(Geneva Convention).
 85

II. A M a il L
and Legal Theory

The questions of legitimacy which legal philosophy and legal theory consider
are part of, and are embedded in, a wider theoretical enterprise which cont-
ains at minimum the following elements:

. D A e
Legal philosophy provides a descriptive and analytical theory of concepts and
phenomena of the law. It asks questions like what is a norm? What is the diffe-
rence between a norm and, say, a habitual pattern of behaviour or the expec-
tation that a certain course of events is going to take place? What is the formal
structure of a fundamental right? What is the difference between such a right
’ i i , l ?e li i è
concept that “haunts much legal thought”3è i i l l i-
losophy has examined in great detail. This issue is vital because obligations
are a core element of any legal system. Another pertinent issue is the meaning
of the validity of a norm. What does it mean to assert that a norm is valid? Is
it a matter of efficiency, of the (unbound) will of an authority, of the consent
of the addressees of norms, or perhaps of some material standards of justice
or other ethical principles? Validity is sometimes equated with the existence
of a law. Validity is an existence condition of norms. What does this mean? In
what sense does a norm exist when it is valid?
These questions are of great importance because they outline the basic
architecture of normative systems, including legal systems. We can have no
real understanding of legal systems without a clear sense of what concepts
such as norm, fundamental rights, obligations, or validity mean. 4

3 H.L.é. H , The Concept of Law, Oxford 1961, p. 85.

4 See M M , Rechtsphilosophie und Rechtstheorie, 5th edition, Baden-
Baden 2019, paragraph 26.
86 Matthias Mahlmann: Legal Philosophy and Legal Theory

These concepts are also important in another respect. Today, one major
political challenge is to develop a cross-cultural, perhaps even transcultural
concept of normativity and the law. The world has become highly interde-
pendent and, in various ways, its legal orders attempt to respond by esta-
blishing a legal framework that accommodates this need for international
legal coordination. A very basic framework of this type is created through the
Universal Declaration of Human Rights5 and other human rights documents
that define the minimal mandatory standards for the treatment of human
beings by public authorities and by other agents (individuals and other
legal subjects like companies). It should be noted, however, that whether it
is possible to make a human rights claim against companies is particularly
contentious in its detail. This system of human rights has gained a very dif-
ferentiated reality through public international law and regional organisa-
tions including the Council of Europe, the European Union, the Organisation
of American States, or the African Union and their respective human rights
law, all of which more or less satisfactorily complement the constitutional
protection of basic rights.
But is this a feasible enterprise? One sometimes encounters the claim that
cultures are so different that reaching any form of cross-cultural consensus
about particular norms is unimaginable. After all, is it not true that globally,
people are deeply divided over questions like the rights of women, the scope
of religious freedom or the legitimate claims of people with different sexual
orientations? Some even claim that certain cultures do not have certain con-
cepts which are key elements of what is sometimes considered a “Western”
conception of the law, e.g. the concept of fundamental rights. These claims
are frequently spurious and based on a selective reconstruction of the fun-
damental features of the legal system under consideration. Nonetheless, if
attempting to assess the merits of such claims, it is vital to have a clear sense
of what one is talking about when one is referring to a concept like “funda-
l i ”. e , l l i è i i l i l i-
i è i ii ll i ll
divided modern world poses for ethics and law.

5 UN General Assembly, Universal Declaration of Human Rights of 10 December 1948, 217

A (III).
Matthias Mahlmann: Legal Philosophy and Legal Theory 87

. E e
Another subject matter of the philosophy of law is that of explanatory theo-
ries. Explanatory theories formulate a hypothesis about the causal connec-
tion between something requiring explanation and a factor that serves as the
explanation for the phenomenon under scrutiny. For example, explanatory
theories of law maintain that law in its concrete form is an expression of the
economic structure of society, of culture, of the functional necessities of legal
social systems or even of the climate. These theories have sometimes become
forces of world history: for example, the aforementioned theory developed
by M connecting law and economics. This theory was an important ele-
ment of the motivation and content of social revolutions, like the Russian
Revolution which transformed important parts of the world last century. The
particular stance of pre-Stalinist Marxism with its critique of law, state, and
human rights cannot be understood without reference to this highly influ-
ential background theory.6 After all, the critique of the concepts like human
or fundamental rights played a key role in the establishment of dictatorships
è i i è i i i i M i
theoreticians of law,7 and led some important Marxist authors to embrace the
idea of human rights.8
Such theories need to be scrutinised for scientific reasons and because of
such sometimes far-reaching practical consequences. There must be scrutiny
of whether they are actually defensible and their claims must be backed by
evidence. Further, it must be considered whether there are preferable alter-
natives: for example, with regard to Marxism, perhaps a more differentiated
theory of the relationship between the law and the economy, as proposed by

6 See e.g. K M /F E ,e G I l , i M /E l C ll
Works, Vol. V, New York 1976, pp. 46, 315 (German source: K M , Die deutsche
Ideologie, Marx-Engels-Werke, Band 3, Berlin 1969, S. 63, 311); K M /F
E ,e M i C i a , i M /E l C ll h k , g l.
VI, New York 1976, pp. 477 (German source: K M /F E , Manifest
der Kommunistischen Partei, Marx-Engels-Werke, Band 4, Berlin 1959, S. 464).
7 E.g. E a , author of a classical treatise of Marxism and the law, General
Theory of Law and Marxism, 1924, in Selected Writings on Marxism and Law, Piers
B i /c d l ., l a B. M ,L /N j k .
8 The most interesting is E B , Natural Law and Human dignity, translated by
Dennis J. Schmidt, Cambridge 1986 (German source: E B , Naturrecht und
menschliche Würde, Berlin 1985).
88 Matthias Mahlmann: Legal Philosophy and Legal Theory

M h , including a variety of factors, not just the economy to explain

the nature and development of the law.9

. N e
A third element of legal philosophy is normative theories. K famously
formulated three questions that philosophy essentially aims to answer in his
work the “Critique of Pure Reason”. These questions are: 1. what can we know?
2. what should we do? and 3. what can we hope for?10 Normative theory ans-
wers the second question: what are we supposed to do? This is a very important
consideration because itis not only relevant for the agent herself but for others
as well. What we decide to do affects others in direct or indirect ways. For
example, when we decide that we have reached the limits of solidarity in the
framework of the refugee crisis, this is not only a decision about our own life
but about the lives of those arriving on Italian shores, boarding a rubber boat
in Libya or stranded in a Pacific camp on the way to Australia. Therefore, the
kind of answer we formulate to this question is a matter of real consequence.
In order for normative theory to proceed on this course, it must address
matters of principle: it considers, for instance, what the content of justice is. Is
it related to equality as major authors of the theory of justice, from é
to c , have argued? If so, in which sense? What does equality actually
mean? Who or what is equal and in which respect? What behaviour does the
idea of equality mandate?
Normative theory also enquires also into what we owe to each one another.
Are there such duties of solidarity? If so, towards whom; to personal relations,
to the members of a group one belongs to or to the group itself, to people
whom we have formal legal ties with like shared citizenship, or to any human
being? What is the content of such duties? Are they differentiated depending
on the level of proximity of the agent towards the addressee? What are their
limits, what is their minimal content? How are they embodied in the law?

9 M h ,E d i , i G c /Cl hi i , B k l /
L é l /L , . G d :M h , Wirtschaft und
Gesellschaft, 5. Auflage, Tübingen 1972, S. 181 ff.).
10 I K , Critique of Pure Reason, in Immanuel Kant, Practical Philosophy, The
C i E ii h k I lK , l i a lG /
Allen W. Wood, Cambridge 1999, pp. 677 (German source: I K , Kritik der
i g , ék i é ,B èIII, . é l , B li , d. .
Matthias Mahlmann: Legal Philosophy and Legal Theory 89

Legal Philosophy asks questions about concrete institutions of the law.

Some questions have already been mentioned above: it enquires into the
nature, content, and justification of human rights. What are these rights?
In what form do they exist? What are their foundations? Are they relative to
different cultures or religions or are they of universal validity? What is the
content of true human rights? Are current conceptions of human rights too
expansive or too limited; if either, in which area?
e l ii li i è i l, - i l, i -
i lè i i i l l il .e -
mative structure of the international order is of great importance. Are there
reasons for robust national egoism or is it preferable to pursue a cooperative
approach to international relations based on some kind of notion of internati-
onal solidarity, mutual help, and respect? If the latter, then what are the pro-
per institutions to pursue such aims? A World-State? A federation of nations?
Networks operating beyond the state? What are the prospects of such enter-
prises? Is the hope of “perpetual peace”11 still alive or just the embarrassing
dream of a bygone epoch?
An important part of the law is its regulation of relations between private
parties. The theory of private law is consequently another leading topic of
legal philosophy and legal theory. For example, one can ask questions about
the foundations of the law of contract or tort in a legal system or about the
content and limits of private autonomy as a guiding principle of liberal private
law systems.
A theory of criminal law raises equally significant questions. Are there prin-
cipled reasons behind the idea that sanctions should be based on concepts of
guilt and responsibility? What purposes can criminal sanctions justifiably
pursue: dissuading the criminal from reoffending, re-integration, retribution,
general prevention or perhaps something else entirely? One may add additi-
onal concrete questions like whether the criminal law can justifiably aim for
sanctions to have general preventive effects. Further, what are the limits of
such sanctions: for example, does the concept of human dignity set any?
Normative theory can also address more concrete questions: e.g. is the ban
of burqas in Europe legitimate, or is it a violation of the basic principles of
a liberal order? What privacy rights are justified? Is it true that the modern

11 I K , Toward Perpetual Peace, in Immanuel Kant, Practical Philosophy,

The Cambridge Edition of the Works of Immanuel Kant, translated and edited by Mary
J. G ,C i , .è G :I K , Zum Ewigen
Frieden, 1795, Akademie Ausgabe, Band VIII, Berlin 1923, S.è341 ff.).
90 Matthias Mahlmann: Legal Philosophy and Legal Theory

digital society has fundamentally reshaped the concept of privacy or, to the
contrary, should notions of human autonomy guide our approach to these far-
reaching challenges created by digital technologies and their use that have
been and still are constitutive of constitutional state?

. e c L M
Another classical problem of philosophical reflections about the law concerns
the relationship between law and morality. The question is whether there is a
necessary connection between the law and morality, as many theorists of law
have claimed, even arguing that ultimately the law is a part of political mora-
lity: “lawyers and judges are working political philosophers of a democratic sta-
te”.12 Or are positivists correct in their persistent claim that the two realms are
entirely separate?13
As a starting point, one should remember that the separation of law and
morality is a basic element of modern law. Law regulates external behaviour
and is enforced by sanctions; morality is a normative order that is subjectively
experienced as mandatory by individuals themselves, and is effective only
because of the power and influence moral obligations have on agents’ moti-
vation.14 There is no good reason to abandon this basic distinction in current
reflection.15
However, to underline the distinction between law and morality in this
sense does not answer the question of whether material ethical principles are

12 For a recent example see c D ,J i H ,C i /L

2011, p. 414.
13 See e.g. H K ,a e L , l M K i , B k l /L
Angeles 1967 (German Source: H K , Reine Rechtslehre, 2. Auflage, Wien 1960);
H ;J c , The Authority of Law, 2nd edition, Oxford 2009.
14 The most influential statement of the relation stems from I K , The
Metaphysics of Morals, in in Immanuel Kant, Practical Philosophy, The Cambridge
Edition of the Works of Immanuel Kant, translated and edited by Mary J. Gregor,
Cambridge 2008 (cit. K , Metaphysics of Morals), pp. 353 (German source: I
K , Die Metaphysik der Sitten, 1797, Akademie Ausgabe, Band VI, Berlin 1914, S. 230
ff.). For a recent restatement of these thoughts see Jü H , Between Facts
and Norms, translated by William Rehg, Cambridge 1996 (German source: Jü
H , Faktizität und Geltung, Berlin 1992, S. 143 ff.).
15 See M M , Elemente einer ethischen Grundrechtstheorie, Baden-
Baden 2008, pp. 27.
Matthias Mahlmann: Legal Philosophy and Legal Theory 91

somehow relevant in determining the conditions of validity of law and the

concrete content of legal norms, in circumstances where the opacity of legal
texts necessitates interpretative choices. Even if such principles are relevant
in this regard, this does not change the fact that the law thus identified and
interpreted regulates external behaviour and does not necessarily demand to
make a determination of an individual’s conscience. Further, it does not affect
the fact that law is backed by external sanctions rather than by the subjective
experience of the mandatory character of norms.
There is a very rich discussion about this matter: starting in antiquity, pur-
sued in the natural law tradition and continued today. At least the two major
areas just mentioned demand further reflection: the conditions of the validity
of norms and the hermeneutics of law.
The problem of defining the conditions for the legitimacy of law raises the
following question: is it possible to dissociate legal systems from extra-legal
grounds of legitimacy? Can one make an argument for democracy, constitu-
tionalism or human rights without referencing principles of justice or human
respect? If this seems difficult to imagine, a first connection between law and
morality is established.
Another area where questions about the connection between law and mora-
lity become pertinent is in the application of the law. Is it possible to apply the
law without the influence of certain background theories, including ethical
principles that guide the interpretation of law in concrete cases which require
the making of interpretative choices? Can one concretise an abstract funda-
mental right, for instance freedom of religion in the case of the prohibition of
burqas, without the influence of a background theory about the meaning of
freedom, the kind of restrictions we can impose on others engaged in prima
facie not harmful behaviour and the conditions under which this may be allo-
wed? Such background theories cannot be fully determined by the text of the
concrete norm to be interpreted, because these theories are the instrument
used to concretise the open-textured wording of the norms; the wording that
made it necessary to take recourse to them in the first place.
The identification of norms as valid law is another, related issue. Positivists
maintain that law can be identified simply by reference to a certain social
fact, some kind of rule of recognition, in a famous formulation;16 but is this
really the case? Is it not true that for positivists the identification of positive
law also depends on some kind of extra-legal background assumption; namely

16 H , pp. 97.
92 Matthias Mahlmann: Legal Philosophy and Legal Theory

that those norms that have been enacted following a certain procedure for
example acts of parliament (according to the rule of recognition) ought to be
regarded as law? The alternative is to deprive any rule of recognition of its
normative dimension and make it simply a description of the practice of jud-
ges, officials etc. that changes “as we go along”, in h ’s words.17
However, such an understanding clearly fails to capture the actual practice
of law: judges in a democracy, for instance, regard it as a normative rule that
one ought to take as law that which has been enacted in the proper way accor-
ding to prescribed procedures and that which does not violate certain mate-
rial standards like fundamental rights. The same is true for the constitution
of a legal order itself: respecting the constitution is a mandatory rule, not a
mere habitual disposition of judges and other officials. These are not banal
findings; on the contrary, they are substantial assumptions about the reasons
for regarding a norm as valid law. In the case of the constitution, it is clear that
the obligation to treat it as law cannot be derived from the constitution itself;
it must stem from other sources. In democratic states it is the idea of popular
sovereignty that is the ultimate source of legitimacy and thus also of the obli-
gation of judges and officials to treat the constitution as the highest law of the
land. The question of the authority of the ultimate law giver is therefore the
precise point where any merely positivist reconstruction of the identification
of norms as valid law ceases to convince.18
Thus, there are very good reasons to think that the realms of law and mora-
lity are not entirely separate but instead interwoven in intricate ways. Such
a finding does not mean that law is moralised in any objectionable way. The
starting point for any interpretation is the positive law: this guides the legal
understanding in the first place. Respecting positive law means respecting
democracy, where the positive law is the outcome of democratic processes.
As indicated above, making the relationship between law and morality
explicit does not turn law into morality, because the social institution of law
is not transformed into individuals’ rules of conscience. The problem is rather
how we are to determine why the positive law is valid, what the positive
law actually says, and how we can decide what it means in difficult (or even
sometimes in easy) cases without reference to such background assumptions

17 L h , Philosophische Untersuchungen, n. 83, in Ludwig Wittgenstein,

Tractatus logico-philosophicus, 1984, translation Wittgenstein, Philosophical
I i i , i i , a. M. d. H k /J i d l . ,O , . .
18 This is not a new observation, see e.g. K , Metaphysics of Morals, pp. 353.
Matthias Mahlmann: Legal Philosophy and Legal Theory 93

regarding morality, for example in the case of current conundrums of reli-

gious freedom. To insist on the connection between law and morality thus
does not lead to a suspect moralisation of law but to an area of crucial, critical
transparency where influence that normative theory has on the law and its
practice is not hidden but rather exposed.

. E
A further important area of legal philosophy concerns the limits of legal
insight and knowledge. The questions to be answered in this area are ques-
tions about the epistemology of ethics and law. Are we simply exchanging
opinions when we argue about matters of justice? Is such argument just mutu-
ally shared information about preferences we are entertaining? What is the
epistemic status of those propositions we make? Are they in one way or ano-
ther comparable to insights in other domains of knowledge, for example, the
natural sciences or logic? Or are they entirely different, perhaps due to their
relativity to the tastes of a particular individual?
These questions are as difficult as they are important because, as indica-
ted above, the law has far-reaching consequences for agents and other human
beings who are affected by their actions. Therefore, the degree of certainty we
can gain in this area of human thought is of great significance. We sometimes
inflict great harm on individuals in the name of normative principles and
the law, e.g. when we impose sanctions or, even more dramatically, when we
engage in war. Surely such action can only be legitimate if we have firm epi-
stemological reasons to assume that our judgment is not leading us entirely
astray.
Whether there are reasons to have some kind of epistemological self-
assurance must be examined in the context of some more concrete reflec-
tions below.

. O
Another important question of legal philosophy is that of what exactly norma-
tive propositions refer to. Specifically, are normative propositions, e.g. those
of the law, comparable to propositions like “in front of my window stands a
tree”? Are normative propositions referring to entities that exist in the world
94 Matthias Mahlmann: Legal Philosophy and Legal Theory

in the same way that a tree does, or to something else entirely? Are they per-
haps referring to nothing at all, instead simply being chimerical empty con-
cepts without any real meaning, as important voices in the history of ideas
have argued?19
These are very contentious questions concerning the stuff the world is
made of. It is far from clear whether normative entities belong to the fabric of
the world as many, since a , have argued. The question remains unsett-
led today due to the arguments of a forceful stream of so-called moral rea-
lists who think that, in fact, moral entities are as real as any other entity of
human experience.20 Others, in contrast, object to this kind of theory without
necessarily denying the rationality of moral and other forms of normative
argument.21

. G M d
H G , elaborating on a thought formulated in medieval philosophy
before his time, famously argued that it is a useful exercise to think about the
foundations of law as if God did not exist.22 This did not imply that G
did not believe in God. On the contrary, it simply meant that he wanted to
explore whether religious premises are necessary in order to establish a con-
vincing system of law. He came to the conclusion that this was not the case. In
his opinion, a natural law theory could be developed on the basis of rational
insight gained by the exercise of reason that would necessarily lead human
beings to certain conclusions about the law. He tried to spell out in some detail
what this could mean concretely in his account of the content of natural law,
the same account that became a mile stone not only for public international

19 See e.g. c C , The Elimination of Metaphysics through the Logical Analysis of

Language, translated by Arthur Pap, in Alfred Jules Ayer (ed.), Logical Positivism, Glencoe
1959, pp. 60 (German Source: c C , Die Überwindung der Metaphysik durch
logische Analyse der Sprache, 1932, S. 219 ff.).
20 See e.g. D E , Taking Morality Seriously, A Defense of Robust Realism, Oxford
2011.
21 See e.g. e d , Being realistic about reasons, Oxford 2014. On this matter,
M M , Mind and Rights, in Mortimer Sellers (ed.), Law, Reason, and
Emotion, Cambridge 2017 (cit. M , Mind and Rights), pp. 80, available at www.
. :// . /kkD -FKje .
22 H G , De Iure Belli ac Pacis Libri Tres, Vol. I, reproduction of the edition of 1646
by James Brown Scott, Washington 1913, paragraph 11.
Matthias Mahlmann: Legal Philosophy and Legal Theory 95

l l llè
of rights to criminal law.
The project of an inner-worldly ethics and law as a hallmark of Enlightenment
has been famously summarised by I K in the course of his
philosophy of ethics and law: he stated that human reason needs no higher
authority above it to determine the content of justified norms, and no other
motivation than that derived from the command of ethical principles.23 This
methodological secularism is very important for two reasons. The first reason
is a pragmatic one: the methodological secularism perspective builds brid-
ges across religious and other ideological divides. If it is possible to argue for
certain normative principles without taking recourse to such contentious
background theories, the prospects of reaching consensus across such divi-
des are better. The second reason is a matter of theory. There are simply very
good reasons to believe that in fact a justificatory theory of ethics and law
can be outlined satisfactorily without recourse to religious foundations. The
examples below will give some indications of how this aim may be reached.

. e b f
One important question is whether some normative propositions are uni-
versal.24 This is not to be misunderstood as a denial of the factual variety of
ethical and legal principles. There is no question about it; ethical and legal sys-
tems vary in many respects. Rather, the question is whether there are reasons
to believe that there are reflective principles that could command universal
assent and that are in that sense universally valid, even though they may not
be fully accepted everywhere today. Universalism should not be mistaken for
the idea of normative convictions being factually uniform.
That there are no such universally justified normative propositions is,
however, far from clear. A bedrock principle of modern legal orders is the
equal worth of human beings. Certainly, there have been many systems of

23 I K , Religion within the Bounds of Bare Reason, in: Religion and Rational
e l , i éll h /G i Gi i, C i , . G
source: I K , Die Religion innerhalb der Grenzen der blossen Vernunft,
1793, Akademie Ausgabe, Band VI, Berlin 1914, S. 3).
24 On this matter see M M , Universalism, in Max Planck Encyclopaedia
of Comparative Constitutional Law, Oxford 2017, available at www.oxcon.ouplaw.com
:// . / ge g .
96 Matthias Mahlmann: Legal Philosophy and Legal Theory

l è è i l i i i l .B
good reasons to justify such violations? Is there really an argument for the
idea that humans in Cape Town are worth less than in Zurich? Is there an
argument that the worth of women is justifiably less in Islamabad than in
Paris? What reasons could justify the idea that skin colour is a relevant factor
for the enjoyment of rights? It seems pretty difficult to formulate any kind of
argument for such views denying human equality (widespread as they may
be) that would stand even minimal scrutiny. The same holds true for many
other such foundational normative principles - a state of affairs which widely
opens the door for the idea of normative universalism.
Normative universalism is an epistemological point of view, not a politi-
cal doctrine. It defends epistemic egalitarianism by underlining the fact that
everyone has the potential for insight, whether this person is graduate of the
University of Zurich or struggling to survive in a slum in Mumbai; of whate-
ver skin colour, religious creed or gender. It takes a stance on the justifica-
tion of basic normative principles and rights, not on the political means for
developing a social order where such principles count. There is no individual
or group that enjoys any prerogative in determining the content of univer-
sally justified norms. On the contrary, the elaboration of a universally justi-
fied set of norms is an open-ended process of committed critical thought in
which nothing but arguments count, as is the case in any other serious intel-
lectual enterprise of humanity. Consequently, to associate universalism with
euro- or ethnocentrism or even cultural imperialism is way off the mark. To
defend universalism is not to attempt to impose parochial norms on others: it
is to defend the possibility of there being an understanding of basic norms of
human civilisation open to all.
 97

III. e a i a il
Law and Legal Theory

Legal theory and legal philosophy are important in any given legal culture.
Theoretical insight is important in two key regards. Firstly, it is important for
successful legal practice. It is impossible to solve difficult (or even simple) pro-
blems of law without a deeper understanding of what the particular issue is
.é l k ll l I. è
to the problem of international terrorism to the structure of the international
l l è ill .
This is not least the case given the internationalisation of law. An under-
standing of the general structure of laws is essential in enabling us to rise
to the challenges of this new embeddedness of norms in international legal
.e i i i i l è i i l, i l
i i lè ill i l l
Secondly, theoretical insight is of intrinsic value. Many people in the legal
profession spend their whole life working with the law, and it seems hard to
imagine that one devotes one’s life to this particular activity without asking
some, even passionate, questions about the nature and sense of this kind of
occupation. Furthermore, the law is a central and constitutive characteristic
of human culture. There can be no understanding of the human condition
without sufficiently deep reflection about the law.
Legal philosophy and legal theory provide critical normative yardsticks for
the many existential questions we face today. Without such standards, people
lack reasons to change, and just as importantly, to support and defend signi-
ficant, valuable aspects of a given legal order. Consciousness of the sense and
meaning of a legal system is a precondition for the survival of some kind of
decent civilisation of law.
98

Ig. e J i

The theory of justice is one of the core elements of the theory and philosophy
of law. The foundations of this theory can be found in the thought of antiquity
in the work of authors like d ,é , and a ; philosophers
whose ideas are still relevant today. Some important elements of this theory
stand out: justice, in the view of these thinkers, is a matter of insight. It is not a
matter of subjective, individual preferences, nor is it related to the fulfilment
of particular pleasures. Actions are to be regarded as just or unjust, good or
evil, independently of whether agents actually think this is so. Their deontic
status is not dependent on the whim of human agents. They are simply just or
unjust, good or evil, in themselves.
The content of justice is connected to certain principles, including the princi-
ple that everybody must be given his or her due, which later found its expression
in Roman law.25 The principle of proportional equality is key in understanding
why inequality of result may be regarded as just. This is because when proporti-
onal equality is maintained between the criterion of distribution and the good
distributed, e.g. the grade that a student receives for her work and the quality of
this work, this distribution is just even though the results are unequal.26
A controversial issue in this respect is the criterion of distribution. This
criterion of distribution varies according to the spheres of distribution.27 For
instance, if we consider the example of grading, performance is crucial in the
distribution of grades. In other areas, different criteria play a role. Article 12
of the Constitution28 stipulates that need is an important prerequisite for the
distribution of at least a basic income that ensures a dignified human life. In
other areas, “humanity” is central. This is the case, for example, for the distri-
bution of basic rights in a society; this is usually linked to no other precondi-
tion than the humanity of the bearers of such rights.

25 Corpus Iuris Civilis, Dig. 1.1.10.

26 é , The Nicomachean Ethics, translated by David Ross, edited by Lesley Brown,
Oxford New York 2009, n. 1129a et seqq.
27 M h , The Spheres of Justice, New York 1983.
28 Federal Constitution of the Swiss Confederation of 18 April 1999, SR 101; see for an English
i C i i . i . :// . /M fJ-d .
Matthias Mahlmann: Legal Philosophy and Legal Theory 99

Since antiquity, justice has been a concept used to evaluate the actions
of agents. It has also been the foundation for the construction of societies.
In antique thought, questions about democracy, oligarchy, aristocracy, and
tyranny were wedded to the question of what constitutes a just order. a ’s
particular hierarchical vision of a society is certainly not able to command
much assent today, but one key question he posed in its canonical form still
persists: what are the consequences for the structure of a decent society if it is
based on principles of justice?29
Antique thinkers made another important point: they believed that justice
and goodness are intrinsically linked to a fulfilled, even happy life. d
maintained that it is better to suffer injustice than to do injustice, implying
that an ethical life is an intrinsic good, more important even than what one
may have to endure if one prefers not to inflict injustice.30 This leads to the
idea that there is intrinsic value in a legitimate legal order that mirrors an
ethical life on the social and institutional level. It seemed to these thinkers,
and with good reason, that this too is a vital element of a decent human life.
These questions have been alive through the centuries, circling around
various issues formulated in the past. A recent example for such reflection
is the theory of J c : the single most influential theory of justice of
the second half of the 20th century. He developed behind the so-called “veil of
ignorance” two principles of justice that he thought rational, risk-averse indi-
viduals would agree upon, if they were unaware of their particular privileges,
talents, and propensities. The first principle is universal freedom. The second
principle is that an unequal distribution of material goods can only be justi-
fied if: a) the worst-off still profit absolutely, and b) such a system is based on
the principle of equal access of everybody to public office. In c ’ theory
too, equality is the guiding star of reflections about justice, importantly on
two levels: on the level of concrete principles and on the level of the const-
ruction of the original position where the imagined agents decide upon the
principles. The veil of ignorance is nothing other than an expository device
for the basic intuition of human equality, an intuition that is at the core of
what justice is about.31

29 See a , Politeia, in Plato in Twelve Volumes, Vol. V and VI, translated by Chris Emlyn-
J ,C i /L .
30 a , Gorgias, in Plato in Twelve Volumes, Vol. III, translated by W.R.M. Lamb,
Cambridge 1967, n. 469b et seq.
31 J c ,ée J i ,C i /L .F l i , i
from a discussion of c , see e.g. é d , The Idea of Justice, Cambridge 2009.
100

g. A C J i

From this discussion, at least six principles may be derived that are helpful in
understanding the content of justice. The first one is the necessity of having
equal standards to be applied to different agents. Second, these standards
have to be practically applied in an equal way to different agents in concrete
circumstances. Third, equality forms a default principle of distribution. If
there is no criterion for an unequal distribution, only an equal distribution is
just. Fourth, just treatment presupposes the reasonable determination of the
content of criteria of distribution in the respective sphere of distribution. For
example, to distribute rights on the basis of skin-colour evidently does not
meet these sometimes quite demanding standards. Justice demands to main-
tain proportional equality between the criterion of distribution and the good
distributed. Fifth, restitutive justice serves the purpose of maintaining a just
distribution of goods (material and immaterial, like rights) within society.
Finally, and importantly, there is a baseline of equality that has to be protec-
ted in a just order. This baseline is set by the equal dignity of human beings.
Certainly there are cases where inequality of results is just, e.g. in the obvious,
aforementioned case of the distribution of grades. But any inequality has to
be reconcilable with this basic equality of human beings, a principle rom the
based on the dignity of autonomous persons.32

32 See on the debate about dignity M M , Human Dignity and Autonomy

i M C i i lO , i Mi l c l /é d jó .,e O
Handbook of Comparative Constitutional Law, Oxford 2012 (cit. M , Human
Dignity), pp. 370; M M , The Good Sense of Dignity: Six Antidotes
to Dignity Fatigue in Ethics and Law, in Christopher McCrudden (ed.), Understanding
Human Dignity, Oxford 2013, pp. 594; C M C , In Pursuit of
Human Dignity: An Introduction to Current Debates, in Christopher McCrudden (ed.),
Understanding Human Dignity, 2013, pp. 1.
 101

gI. e Bi H
Rights Idea

Today, human rights are something like a secular Decalogue of our modern
era. They are not, however, a modern invention: rights and the reflection
about rights have a very long history, in Natural Law and in social contract
theory, for example. An important more recent example is the thought con-
cerning rights in the Enlightenment, based on practical reason and the parti-
cular concept of human dignity.
K ’s categorical imperative is a crucial expression of this kind of thin-
king. The categorical imperative is at the core of K ’s ethics and is wedded
to the idea of universalisation. It holds:

“Act only in accordance with that maxim through which you can at the same time
will that it become a universal law.”33

This means that any ethical principle followed by an individual has to be

able to survive the test of universalisation. Only if it is thinkable that such a
rule could be applied to everybody can it be a legitimate rule.
The second version of K ’s categorical imperative is the so-called princi-
ple of humanity:

“So act that you use humanity, whether in your own person or in the person of any
other, always at the same time as an end, never merely as a means.“34

33 I K , Groundwork of the Metaphysics of Morals, in Immanuel Kant,

Practical Philosophy, The Cambridge Edition of the Works of Immanuel Kant, translated
and edited by Mary J. Gregor, Cambridge 2008 (cit. K , Groundwork), pp. 37 (German
source: I K , Grundlegung zur Metaphysik der Sitten, 1785, Akademie
Ausgabe, Band IV, Berlin 1911, S. 421: “Handle nur nach der Maxime, durch die du zugleich
wollen kannst, dass sie ein allgemeines Gesetz werde.”).
34 K , Groundwork, pp. 37 (German source: “Handle so, dass du die Menschheit, sowohl in
deiner Person als in der Person eines jeden anderen, jederzeit zugleich als Zweck, niemals
bloß als Mittel brauchst.”).
102 Matthias Mahlmann: Legal Philosophy and Legal Theory

This is an exacting statement; it means that every individual is the ultimate

limiting condition of actions by individuals and social order. It is thus the
principle of radical humanism.35
The idea of universalisation is mirrored in the concept of right:

“Right is therefore the sum of the conditions under which the choice of one can be
united with the choice of another in accordance with the universal law of freedom.”36

There is one natural subjective right under this principle of law that incor-
porates the categorical imperative in legal thinking. This natural subjective
right is

“freedom (independence from being constrained by another’s choice), insofar as it

can coexist with the freedom of any other in accordance with the universal law, is
the only original right belonging to every human being by virtue of his humanity.”37

This is not just a right to freedom; it is the subjective right to universally

equal freedom, based on the equal dignity of human beings. K ’s formula-
tion thus weaves together normative elements that continue to be foundatio-
nal for the human rights project today.

35 This principle had a major impact on the case law of different legal systems of the world.
See for an overview M , Human Dignity, pp. 370.
36 K , Metaphysics of Morals, pp. 353 (German source: „Das Recht ist also der Inbegriff
der Bedingungen, unter denen die Willkür des einen mit der Willkür des anderen nach
einem allgemeinen Gesetz der Freiheit zusammen vereinigt werden kann.“).
37 K , Metaphysics of Morals pp. 353. Please note that the German original is gender
neutral (Mensch): „Freiheit (Unabhängigkeit von eines anderen nöthigender Willkür),
sofern sie mit jedes Anderen Freiheit nach einem allgemeinen Gesetz zusammen bestehen
kann, ist dieses einzige, ursprüngliche, jedem Menschen kraft seiner Menschheit zuste-
hende Recht.“ Therefore, the translation has been adapted.
 103

gII. C H
Rights Theory

Questions about the foundations of human rights have not stopped to pro-
foundly engage people. The contemporary human rights theory is a place of
vivid debate. It draws from the many thoughts in the history of ideas that have
been formulated beyond those examples mentioned above. One important
consideration is that of why we actually protect human rights. It is often said
that human rights are protected by virtue of humanity alone. What does this
mean? Is it the agency and personhood of human beings that is foundational
in this regard? Are interests and needs central? Is the protection of capabili-
ties, i.e. the factual ability to lead a complete and flourishing life, the source of
our rights? Are rights best understood as a political project of the internatio-
nal community? Or, in fact, is human dignity the foundation of human rights?
These are important questions and there is currently a lively and demanding
discussion around such matters, engaging a huge variety of people across the
globe.38
A starting point for solving some of these implied problems may be to for-
mulate three elements that need to be incorporated into any convincing the-
ory of human rights. First, a theory of human rights has to contain a theory
of the basic universal human goods which are to be justifiably protected.
Human rights do not protect everything, only certain qualified goods, e.g. life,
respect for the person, bodily integrity, freedom, and the legitimate equality.
Any theory of human rights must account for the importance of these parti-
cular goods and, in particular, for the equal importance of these goods for any
human being.
Second, a theory of human rights must include a political theory of the
social conditions necessary for the enjoyment of these basic universal human
goods. It is not always obvious that rights are the best means through which
to obtain even unquestionably crucial human goods. There are certainly such
goods that cannot be attained through the protection of rights. For example,

38 For an overview see M , Mind and Rights, pp. 80.

104 Matthias Mahlmann: Legal Philosophy and Legal Theory

love is evidently a very important element of human existence, but clearly, a

right to love could not ensure that everyone would enjoy this particular ele-
ment of a fulfilled human life.
Third, normative principles are central. There is no theory of human rights
that does not contain such normative principles. Principles of justice are
important because they clarify why only a system of equal rights is a legiti-
mate system of rights. In addition, of key relevance are principles of obligatory
human solidarity and respect for human beings that, in particular, justify our
concern for others; something which is embodied in human rights themselves
i li i il i i i è li l è
all of us.
Justice, solidarity and respect for human persons, equality, and our concern
for others are the springs of rights. They are the normative sources at the very
foundation of the project of creating a national, regional, and international
legal order where human rights in fact matter and are expressed in institu-
tions of democracy, the constitutional state under the rule of law and public
i i ll è l i i i i ’ -
prisingly tragic history.
 105

Selected Bibliography

é , The Nicomachean Ethics, translated by David Ross, edited by

Lesley Brown, Oxford New York 2009
E B , Natural Law and Human Dignity, translated by Dennis J. Schmidt,
Cambridge 1986 (1985)
E B , Naturrecht und menschliche Würde, Berlin 1985
c C , Die Überwindung der Metaphysik durch logische Analyse
der Sprache, 1932
c C , The Elimination of Metaphysics through the Logical
Analysis of Language, translated by Arthur Pap, in Alfred Jules Ayer (ed.),
Logical Positivism, Glencoe 1959, pp. 60
c D ,J i H ,C i /L
D E , Taking Morality Seriously, A Defense of Robust Realism,
Oxford 2011
H G , De Iure Belli ac Pacis Libri Tres, Vol. I, reproduction of the
edition of 1646 by James Brown Scott, Washington 1913
Jü H , Between Facts and Norms, translated by William Rehg,
Cambridge 1996 (1992)
Jü H , Faktizität und Geltung, Berlin 1992
H.L.é. H , The Concept of Law, Oxford 1961
I K , Die Metaphysik der Sitten, 1797, Akademie Ausgabe, Band
VI, Berlin 1914
I K , Die Religion innerhalb der Grenzen der blossen Vernunft,
1793, Akademie Ausgabe, Band VI, Berlin 1914
I K , Grundlegung zur Metaphysik der Sitten, 1785, Akademie
Ausgabe, Band IV, Berlin 1911
I K , Kritik der reinen Vernunft, Akademie Ausgabe, Band III, 2.
Auflage 1787, Berlin 1911
I K , Practical Philosophy, The Cambridge Edition of the Works of
Immanuel Kant, translated and edited by Mary J. Gregor, Cambridge 2008
I K , Religion within the Bounds of Bare Reason, edited by Allen
h /G i Gi i, C i
106 Matthias Mahlmann: Legal Philosophy and Legal Theory

I K , Zum Ewigen Frieden, 1795, Akademie Ausgabe, Band VIII,

Berlin 1923
H K ,a e L , l M K i , B k l /L
Angeles 1967 (1960)
H K , Reine Rechtslehre, 2. Auflage, Wien 1960
M M , Elemente einer ethischen Grundrechtstheorie,
Baden-Baden 2008
M M , Mind and Rights, in Mortimer Sellers (ed.), Law,
Reason, and Emotion, Cambridge 2017, pp. 80, available at www.ssrn.com
:// . /kkD -FKje .
M M , Rechtsphilosophie und Rechtstheorie, 5th edition,
Baden-Baden 2019
M M , Universalism, in Max Planck Encyclopaedia of
Comparative Constitutional Law, Oxford 2017, available at www.oxcon.
l . :// . / ge g
M M , Human Dignity and Autonomy in Modern
C i i lO , i Mi l c l /é d jó . ,e O
Handbook of Comparative Constitutional Law, Oxford 2012, pp. 370
M M , The Good Sense of Dignity: Six Antidotes to Dignity
Fatigue in Ethics and Law, in Christopher McCrudden (ed.), Understanding
Human Dignity, Oxford 2013, pp. 594
K M , Die deutsche Ideologie, Marx-Engels-Werke, Band 3, Berlin 1969
K M /F E , Manifest der Kommunistischen Partei,
Marx-Engels-Werke, Band 4, Berlin 1959
K M /F E , e G I l , i M /E l
Collected Works, Vol. V, New York 1976
K M /F E , The Manifesto of the Communist Party, in
M /E l C ll h k , g l. gI, N j k
C M C , In Pursuit of Human Dignity: An Introduction
to Current Debates, in Christopher McCrudden (ed.), Understanding
Human Dignity, 2013, pp. 1
E a , General Theory of Law and Marxism, 1924, in Selected
hii M i L , ai B i /c d l ., l -
a B. M ,L /N j k
a , Gorgias, in Plato in Twelve Volumes, Vol. III, translated by W.R.M.
Lamb, Cambridge 1967
a , Politeia, in Plato in Twelve Volumes, Vol. V and VI, translated by Chris
E l -J ,C i /L
Matthias Mahlmann: Legal Philosophy and Legal Theory 107

J c,ée J i ,C i /L
J c , The Authority of Law, 2 edition, Oxford 2009
nd

e d , Being realistic about reasons, Oxford 2014

é d , The Idea of Justice, Cambridge 2009
M h , The Spheres of Justice, New York 1983
M h ,E d i , i G c /Cl hi i ,
B k l /L é l /L
M h , Wirtschaft und Gesellschaft, 5. Auflage, Tübingen 1972