Legal validity

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Legal validity is a term from legal philosophy that raises the question of the validity of laws . The problem of legal validity acquired practical significance in the case of the " disgraceful laws " of the Nazi dictatorship and the so-called wall rifle trials.

Effectiveness and Legitimacy of Law

Components of legal validity are legal validity , i.e. H. the possibility of application and enforcement of general commandments and specific obligations, and their legitimacy (justification, normative justification): Commandments with no enforcement opportunity are (no longer) "in force". Bids without legitimation (for example in the camp rules of a concentration camp ) only justify a conditional obligation. Power alone can force obedience , but it cannot do duty , i.e. H. no date of application demanding to establish "Just as [...] a worthless paper characterized applicable as that someone other than aufnötigt it with the gun in the hand cash wins an imperative that of opposite application which it is forced to reluctantly subjecting [ ...]. "

You cannot rely on any of the above two components of legal validity in the long term because the law is integrated into active life ( law in action ). The fragility of the chances of application and enforcement of legal norms is evident in all revolutions . These take place because fundamental norms, which have previously determined the life of a political community, in fact lose their motivational power and thus their chances of application and enforcement, and other norms gain them. How quickly not only the effectiveness, but also - even within a state - the legitimacy of legal norms can change, is z. This can be seen, for example, in the fact that in 1957 the German Federal Constitutional Court was of the opinion that homosexuality among men (at that time punishable) violated the moral law ( BVerfGE 6, 434 ff.), While in 2001 the behavior that was once threatened by the law on civil partnerships was under legal Protection was provided.

According to Kant , the legitimacy of law rests on the mutual limitation of the freedoms of all according to general laws : “Law is the epitome of the conditions under which the arbitrariness of one can be combined with the arbitrariness of the other according to a general law of freedom. “If one also assumes with Kant that the conscientious judgment of the individual is the ultimate basis of moral insight and thus also the insight into justice,“ this also means that everyone is a moral authority to be respected equally to the other. For the area of ​​the state and the law, this notion of the equal moral competence of all leads to the democratic claim that all citizens have a say in a free competition of convictions also on questions of law and justice ", the right one needs democratic legitimation , which can be found in a cultivated search for majority consensus.

The idea that the justification of the law lies in its power to create order can already be found in Socrates , who did not want to evade the execution of the death sentence against him by fleeing: “Do you think that a state can exist and is not rather destroyed in judgments that are made have no power, but are made invalid and thwarted by individual people? ”According to Socrates, there is legal certainty that the unjust judgment that hits him should also apply because the law creates order and chaos would break out, if anyone could question this order. Above all, however, for Thomas Hobbes , state law appears justified by the fact that it creates order and puts an end to the struggle of all against all. And in the opinion of Gustav Radbruch , "the order of coexistence [...] cannot be left to the legal views of the individuals living together, since these different people may issue opposite instructions, (they) must rather be clearly regulated by a supra-individual body." The law does not apply because it can effectively enforce itself, but it applies when it can effectively enforce itself, because only then can it provide legal certainty. "

Here lies the essential justification of legal positivism : According to it, the validity of the law is based primarily on legal certainty: every application of the law is based on existing law. This presupposes legislation . As a normative order, the law is a system of norms. According to Kelsen , the individual norms apply if they can be derived from a basic norm in a tiered structure of the legal system . The basic standard itself is not questioned any further. The change of positive law is incumbent on legal policy .

To enforce unjust laws

For the right-positivist view, the applicable laws are the only yardstick for law and justice. But should completely unjust and possibly even criminal laws also apply? This would be the consequence of the doctrine of strict legal positivism, which ascribes the validity of norms solely to their positive setting.

The highest German federal courts, on the other hand, have consistently ruled in favor of a limit to the scope of legal injustice. This is determined according to Radbruch's formula . In Radbruch's opinion, "positivism [...] is not in a position to justify the validity of laws on its own." According to this view, legal provisions are to be revoked if they contradict fundamental principles of the rule of law as well as elementary human rights so clearly and in them an obvious serious violation of the basic principles of justice and humanity is expressed that the judge who prescribes them wanted to apply or recognize their legal consequences, would speak injustice instead of right. Such “legal” regulations have not become effective as extreme state injustices, nor do they acquire the quality of law simply because they have been practiced for a number of years or because those affected have come to terms with the measures in individual cases . Because once an extreme state injustice has been established, which apparently violates constituent principles of law and which can only assert itself as long as the responsible bearer of state power actually exists, it is not justified if it is applied and followed.

According to another view , what is meant by legal validity and “applicable” law must first be specified - only the effectiveness or at the same time the legitimacy of legal norms: “By this we mean norms that have a reliable chance of being enforced in a state-organized enforcement procedure , then there is no doubt that the unjust laws in an unjust state are valid law in this sense. But if we mean norms which, according to our sense of justice, should not be applied as law , then we must take note of the fact that the effectiveness of the unjust laws applied in an unjust state cannot be defined away in this way. Even if outsiders do not refer to these laws as 'law', their effectiveness remains. The invalidity of the unjust law [...] must be brought about, often won with great effort; The chance of application and enforcement must be taken away from the unjust norms. But under tyranny this is a life-threatening thing. "

But can a sentence like the Radbruch formula already from a constitutional constitution derived or is the constitutional common law become, he is already de lege lata a legal normative standard by which the other law shall be measured.

literature

Individual evidence

  1. ↑ Reinhold Zippelius : Basic Concepts of Legal and State Sociology , 3rd edition, 2012, § 11; ders., Philosophy of Law , 6th edition, 2011, § 5 I, IV; ders., Das Wesen des Rechts , 6th edition, 2012, chap. 2 d.
  2. ↑ Zippelius, Legal Philosophy , 6th edition, 2011, §§ 5 I, 11 ff .; ders., Das Wesen des Rechts , 6th edition, 2012, chap. 2 f, 7.
  3. ^ Gustav Radbruch: Philosophy of Law , study edition, 1999, p. 80.
  4. ↑ Cf. Zippelius, Rechtsphilosophie , 6th edition, § 21 III; s. also zeitgeist .
  5. ↑ Immanuel Kant: The Metaphysics of Morals, Introduction to Legal Doctrine , § B.
  6. ↑ Zippelius, Das Wesen des Rechts , 6th ed., Chap. 7 b.
  7. ↑ Zippelius, Das Wesen des Rechts , 6th ed., Chap. 7 c, d and chap. 11.
  8. ↑ Quoted from Radbruch, Rechtsphilosophie , p. 85.
  9. ^ Zippelius, Philosophy of Law , 6th edition, § 11 II 3.
  10. ^ Radbruch, Philosophy of Law , p. 82.
  11. ^ Radbruch, Philosophy of Law , p. 83.
  12. ↑ Hans Kelsen: What is legal positivism? , in: JZ 1965, p. 465 ff .; on this Zippelius, Legal Philosophy , 6th edition, § 4 III.
  13. ↑ Critical to this, Zippelius, Rechtssphilosophie , 6th edition, § 5 I.
  14. ↑ See on this: Judgment of the Federal Constitutional Court (BVerfG) of December 17, 1953 - 1 BvR 147 - BVerfGE 3, 58, 118 f .; Resolutions of the BVerfG of February 19, 1957 - 1 BvR 357/52 - BVerfGE 6, 132, 198 f., Of February 14, 1968 - 2 BvR 557/62 - BVerfGE 23, 98, 106 and of April 15, 1980 - 2 BvR 842/77 - BVerfGE 54, 53, 67 ff .; see. also judgment of the Federal Fiscal Court (BFH) of January 25, 1995 - XR 146/93 - BFHE 177, 317, 320 ff.
  15. ^ Gustav Radbruch, in: Lothar Assmann et al .: Approaches to Philosophy 1 . Cornelsen, 2007, p. 58.
  16. ^ Gustav Radbruch: Legal injustice and supra-legal law . Süddeutsche Juristen-Zeitung, 1946, p. 105 ff.
  17. ↑ Zippelius, Legal Philosophy , 6th edition, 2011, § 6 VI; ders., Allgemeine Staatslehre , 17th edition, § 19 II 2.
  18. ↑ Reinhold Zippelius, Das Wesen des Rechts. An introduction to legal theory , 6th edition 2012, chap. 9 f., P. 100 .