Reconstructing Relativism.

An Analysis of Radbruch's Philosophy of Law

Author(s): Jan-R. Sieckmann
Source: ARSP: Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law
and Social Philosophy, Vol. 95, No. 1 (2009), pp. 14-27
Published by: Franz Steiner Verlag
Stable URL: https://www.jstor.org/stable/23680982
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Jan-R. Sieckmann, Bamberg/Buenos Aires

Reconstructing Relativism. An Analysis

of Radbruch's Philosophy of Law

Abstract: This paper aims at reconstructing Radbruch's relativistic conception of law within the
framework of a model of principies. The idea of relativism remains a disputed issue in current legal
and moral philosophy. In spite of the fact that Radbruch's legal philosophy lacks cohérence, it includes
elements that resemble modem conceptions of law as a System including principies to be balanced
against each other. Therefore, a reconstruction within a model of principies might as well prove the
fruitfulness of the model of principies as render a more appropriate theoretical framework for Rad
bruch's legal philosophy. After an outline of Radbruch's relativism, I will discuss some critical points
of his approach and, subsequently, présent a reconstruction according to the model of principies,
which makes plausible at least some of Radbruch's contentions.

I. Introduction

Ethical relativism Claims to offer a third way between moral objectivism and moral
scepticism, suggesting that différent agents may correctly hold incompatible normative
views.1 Although this might well describe the seemingly irresolvable disagreements that
entangle normative discourse, the cohérence of ethical relativism is contested. In which
sense can one claim a normative view to be correct and at the same time concede that
incompatible views may be correct as well? By holding a normative view one excludes
incompatible alternatives. Stating that, for example, one should pay one's debts, but
admitting that this is merely a personal view and anyone eise may think differently on
this matter, appears to be irrational, for one obviously lacks sufficient reasons for mak
ing this Statement.2 At least, it remains unclear what such a statement means.
The phenomenon of persistent disagreement on ethical or normative issues is a
central problem of current legal and moral philosophy. For example, the "fact of plural
ism" is a central concern of the political philosophy of John Rawls.3 Ronald Dworkin
emphasizes that normative assertions carry claims to objective validity, but déniés that
this claim could have an epistemic or metaphysical foundation.4 Robert Alexy suggests
in his theory of discourse that ail discursively possible solutions are correct, although
they might be incompatible with each other.5 Richard Rorty rejects ail claims to cor
rectness of normative discourse,6 thus denying even the présupposions of ethical
relativism.7 Ail these approaches struggle with the problem of which epistemic status
normative claims have, and relativism might provide an answer.

More precisely, this expresses a meta-ethical relativism, not to be confused with normative or evalua
tive relativism suggesting that ail normative views are equally valid, or descriptive relativism suggest
ing that norms are not universally valid but differ according to context or culture. On various forms of
relativism in general Bayon 1991, 210.
Cf. Bayon 1991, 211, regarding what he calis „internalism".
Rawls 1995, 146
Dworkin 1996, 87pp. Interpreting Dworkin in terms of relativism, Rodríguez-Blanco 2004, 153p.
Alexy 1983, 256; id. 1995, 110, 121
Rorty 1989, 53, 73. Cf. Veitch 1999, 32
Cf. Veitch 1999, 33

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 Reconstructing Relativism 15

An adhèrent of ethical relativism

ing a Claim to objective validity d
relativism and the attempt to base
of Radbruch's contemporaries.9 N
some form of relativism, finds su
the validity of norms dépends on
addressees, being autonomous agen
one should expect differing views
autonomous agents have the right
cannot prescribe which norms are
without implying their objective
self-legislation. Thus, this form of
legal or moral theory based on th
In this paper I will présent a reco
law within the framework of a mod
on neo-Kantian methodology, in p
of ethical relativism. Although his
and containing incompatible elem
be possible. Radbruch was not a str
adéquate conception of law.13 In sp
ence, one can find elements tha
including principies to be balanced
within a model of principies might
Radbruch's legal philosophy and, in

II. Radbruch's Position

1. Methodological Dualism as the Foundation of Relativism

A basic element of Radbruch's legal philosophy is the methodological dualism (Meth

dualismus) or, as Radbruch suggests, methodological trialism (Methodentrialismus
Radbruch regards the séparation of Is and Ought, implying that ought sentences

Radbruch 1950, 58; 1932, 18

E.g. Nelson 1917,123pp.; Binder 1925,112p.; Kaufmann 1921,10,22; Sauer 1932/33, 75-79; id., 19
63. Cf. also Wiegand 2004, 2,12. On the other hand, the importance of Radbruch's „Werlrelativis
is emphasized by Schneider 1973, 353.
On this idea Sieckmann 2007.
Cf. Sauer 1929, 62; Lohmann 1964, 83, 85pp.; Wiegand 2004, 2, 12, 110; Adachi 2006, 51, 73p. For
a criticism of ethical relativism in general, cf. Kriele 1963, 7, but (partly) defending relativism at 21,
23, 25.
For example, his relativism is contrasted with neo-Kantian Claims to recognize objective values, cf.
Wiegand 2004, 63 on the différence between Radbruch and Windelband, and 116.
Cf. also Dreier/Paulson 2001, 238; Dreier 1999, 500. By contrast, in favour of a strictly neo-Kantian
interprétation Wiegand 2004,109.
Methodological trialism results from the introduction of "culture science" (Kulturwissenschaft) as a third
type beside empirlcal science (Seinswissenschaft) and philosophy, which correspond to three possible
objects of investigation, reality (Sein), norms and values (Sollen), and the relation of reality to values
(Wertbeziehung) (Radbruch 1950, 70; 1999, 31). Law Is regarded a cultural phenomenon, that is, a fact
related to values (wertbezogene Tatsache). The concept of law, thus, includes a reference to values. Law
Is defined as the reality that is meant to realize the idea of law.

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 16 Jan-R. Sieckmann

only be derived from

(cf. Radbruch 1950,
value Statements can
but only professed.
from the séparation
empirical issues are d

2. The Method of Relativism

The method of relativism implies that the correctness of value judgements can only be
determined in relation to other value judgements, within the framework of a particular
"Weltanschauung", but not regarding the value judgement as such. (Radbruch 1950,
57; 1932, 17)
"The method which is here presented is called relativism, because its task is to determine
only whether any value judgment is right in relation to a particular suprême value judgment,
within a particular outlook on values and the world, but not whether that value judgment and
that outlook on values and the world are right in and of themselves." (Radbruch 1950, 57)

Conforming to his thesis of methodological dualism or trialism, Radbruch claims that

it is impossible to decide in a scientific manner between différent value Systems. The
choice between them is possible only by a décision founded on the depth of individual
conscience (Radbruch 1934, 17; cf. also 1950, 57).Thus, relativism renounces from
scientific justification orfoundation of ultímate normative Statements, not, however, from
the Statement itself (Radbruch 1950, 58; 1932, 18).16 The task of legal philosophy is
to develop a System of possible Systems of value judgements, without taking position
(Radbruch 1950, 69; 1932, 30. Cf. also Radbruch 1947, 207).17

3. Relativism and Legal Validity

On the basis of his relativism, Radbruch rejects natural law and justifies legal positivism.
Radbruch claims that law must serve the idea of law, that is, justice, but the content
of justice cannot be discerned, as it dépends on contested assumptions about the
purposes of law, and moreover can conflict with requirements of legal certainty and

Cf. also Klug 1968.

According to Radbruch, relativism means foregoing a décision of his own because one firmly belleves
in the rightness of one alternative evaluative décisions but is unable to demónstrate it (Radbruch 1950,
58).This is connected with the thesis that relativism belongs to theoretical reason, not to practical reason
(Radbruch 1950, 58. Cf. also Radbruch 1934,17p.).
Radbruch suggests that within this conception, a science of values (like the philosophy of law) can
do three thlngs In the realm of ought. It can
1. determine the means necessary to realize the end that ought to be attained, thus clarifying the
legal end they are to realize;
2. clarify a value judgement up to its ultimate presuppositions of world outlook (weltanschauliche
Voraussetzungen), thus clarifying the more general évaluations involved in a certain judgement
by logical necessity;
3. develop systematically the conceivable ultimate presuppositions and, consequently, all starting
points of legal évaluation (Radbruch 1950, 55p.; 1932,16p.).
In this, one may recognize the influence of Max Weber, cf. Dreier/Paulson 2001, 238, as well as of Her
mann Kantorowicz, cf. Adachi 2006, 49.

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 Reconstructing Relativism 17

the expediency of law. Accordin

valid answer to the question of w
22). Natural law is not an eterna
natural law with changing conten
60; 1999, 22; cf. also Radbruch 19
law of a certain time, a certain p
tions (Radbruch 1955, 53).Thus
state what is the correct law, alt
and historical circumstances.
By contrast, Radbruch Claims that the validity of positive law can only be founded on
the impossibility of recognizing what is the correct law. No enacted law could be regarded
valid if it were proven to be unjust. This insight makes relativism a constructive element
of Radbruch's theory of law (Radbruch 1950, 61, 116; cf. also Radbruch 1934, 18).
However, Radbruch is not content with this relativistic position. He declares that
relativism cannot be the final word of legal philosophy. Law as an ordering of living
together in a society cannot be left to diverging opinions of individuáis. There must ex
ist one ordering above ail (Radbruch 1950,108; 1932, 73). From this, Radbruch infers
that legal security is necessary as an element of the ¡dea of law, and legal security
requires the positivity of law.18

4. Antinomies in the Law

Another source of relativism are conflicts or, in Radbruch's terminology, antinomies

within the law. Most fundamental is the conflict between justice, legal security, and
expediency. But there are also conflicts between différent views about expediency.19
Radbruch déniés that there could be a solution to such conflicts. Even the priority of
legal security, which should establish the validity of positive law, cannot claim to be
unconditional, or absolute. In cases of conflict between the three aspects of the idea
of law the décision must be left to individual conscience. Therefore, the strict validity of
positive law cannot be proven for each individual (Radbruch 1950, 118; 1932, 84).

According to Radbruch, if one cannot determine what is just, it must be decided what shall be legal. This
must be done by an institution that is able to enforce what it will determine as law.Thus, the positivity of
law itself becomes a presupposition of the correctness of law (Radbruch 1950,108; 1932, 73f.; cf. also
1932, 82; 1950,117). Accordingly, the factual validity or effectiveness of law becomes a criterion for its
validity.
The principies of justice, legal certainty, and expediency are relevant in determining what the law is.
Radbruch rejects the idea of a division of labour between them, which restricts and demarcates the
scope of application of these principies. Although the aim of justice determines whether a prescription
is to be qualified as law at ail, whether it conforms to the concept of law, all three principies decide upon
the content of law (Radbruch 1950,110; 1932, 76). Therefore, the validity of unjust and wrang positive
law cannot be asserted without qualification. The issue of validity is capable of being judged not only from
the perspective of legal security, but also from the point of view of justice and of expediency (Radbruch
1950, 111; 1932, 77). Radbruch concludes that all three sides of the idea of law jointly domínate the
law in all its extensions, although they may get into Sharp conflict with each other (Radbruch 1950,111 ;
1932, 77).

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 18 Jan-R. Sieckmann

III. Discussion

Radbruch's attempt to base legal philosophy on ethical relativism is interestlng

least two reasons. Firstly, it Starts from weak premises, and if it should be possib
establish some contents of law as conceptually necessary this way, it would prov
a solid foundation for a normative theory of law. Secondly, Radbruch emphasize
existence of conflicts or tensions in law, and as well between individual views ab
law. These issues are still, and more than ever, crucial problems in law, as well a
current legal and moral philosophy.20 On the other hand, there are doubts regar
the consistency and coherence of Radbruch's philosophy of law.

1. Ambiguities in Radbruch's Relativism

The core of Radbruch's relativism is the denial of objective récognition of ultímate

or values. Radbruch characterizes this relativism by the theses that questions of v
cannot be decided scientifically, and that science can only systematically elabóra
férent value perspectives. However, in Radbruch's writings, we find various Statem
related to "relativism". A first thesis is that of methodological dualism.
(1 ) Values (or Ought-sentences) cannot be recognized as valid, nor derived from pu
descriptive premises, but only be justified by déduction from other values or O
sentences.

This includes various epistemological and methodological theses.

(2) Ultímate values cannot be recognized as valid.
(3) The validity of norms can be stated only relative to other normative senten
(4) Science can only elabórate the presuppositions and implications of value Syst
systematically.
Another aspect concerns the cultural relativity of the content of law, which agai
take various forms.
(5) Law dépends on the application of the idea of law to certain historical or sociologi
cal conditions.
(6) There is no universally valid law, although there are some universal truth about
law, namely its relation to justice, the idea of justice as equality, the idea of legal
certainty, and the necessity of positive law.
Still another thesis concerns conflicts or antinomies within the law.
(7) There is no objective solution to norm collisions.21

Accordingly, there is not only one type of relativism, but one must distinguish various
aspects.22 Although Radbruch embraces also cultural relativism, of central importance
for his theory is epistemological relativism with regard to norms and values. This is a
form of metaethical relativism. However, it is not clear how it differs from scepticism.The
différence to scepticism follows from the further thesis that normative judgements may
be made even though they cannot be objectively justified. Thus results the meta-ethical
relativism suggesting that differing normative judgements may all be correct.

Cf. in particular Besson 2005.

Examples of such collisions to be found in Radbruch's writings are,
- conflicts between normative Systems, like law, moráis, and customs, or différent legal systems,
- conflicts between various elements of the idea of law,
- conflicts between différent purposes of law,
- conflicts between différent individual legal views.
Cf. also Adachi 2006, 48pp.

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 Reconstructing Relativism 19

2. The cohérence of Radbruch's relativism

The problem of relativism is how one can rationally make evaluative statements whil
acknowledging that those judgements cannot be objectively justified.23 A statemen
includes the claim that the stated sentence is true. It seems to be irrational to make a
claim to validity of a statement that one cannot justify.
Even if one disregards the issue of truth, a problem of the relativized statement is
whether it can be normative. One might understand relative ethical judgements as a
pure description of an individual's opinion, but as such it would not carry any normative
claim and be useless for a normative theory of law. The point of Radbruch of interest
here is, however, to carry on with normative claims in spite of ethical relativism. To
profess ultímate values is not only a description of one's own opinion, but is meant to
be a contribution to moral or legal discourse. However, one cannot make normative
claims without at least attempting to justify them. But Radbruch's relativism seems to
exclude this.

3. The Normative Relevance of Relativism

Radbruch regards relativism as the foundation of the validity of positive law. If a nor
could without doubt be recognized as unjust or incorrect its legal validity could not
be justified. However, it is not clear how on the basis of relativism the validity of la
could be established. This cannot follow directly from a metaethical relativism.24 Als
it is not clear why relativism should be a décisive argument in favour of the validity
positive law.
The structure of Radbruch's argument is to treat legal certainty as a second order
value that decides a conflict of first order values, but is not involved in this conflict.25
However, one cannot isolate second order arguments from the conflicting first order
arguments. If positive law enforces one of several ethical positions in dispute, it conflicts
with those positions it sets back.This is just another conflict of normative positions that
needs to be solved. There is no reason to believe that positive law itself provides the
solution. For example, if human rights are in dispute and positive law decides against

A correct, rational présentation of one's normative position might be a Statement as expression of

one's individual, subjective view (cf. Sandkühler 2002,151), that is, in the form,
"In my opinion, it is valid that N.",
where N is a particular norm.
Perhaps this does not présent a problem if the norm addressee is the individual itself, like in,
"In my opinion, I ought to do X."
However, we face a problem if this norm is of general character, like "Everyone ought to do X."
The statement
"In my opinion, everyone ought to do X."
refers, as a theoretical statement, to the individual's opinion and is, in this respect, true. However, the
problem remains what exactly is the content of the stated opinion, and whether a rational agent can
hold this opinion. It seems that the content of the opinion is the statement of the validity of a general
norm. Such a statement again claims truth, which the agent cannot know, according to relativism.
Even including a modification, qualifying it as an individual's opinion, the question remains how a
rational agent can State the truth of something that he cannot know.
Against the possibility of justifying norms on the basis of metaethical relativism, Nelson 1917, 136pp.;
Meyer 2002, 324 with further references.
This line of argument one can find also in the "freestanding" conception of justice of Rawls 1995, 133,
135. Cf. also Jansen 1998, 275pp., developing his own version of a freestanding conception of justice.

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 20 Jan-R. Sieckmann

human rights Claims

human rights Claims
prevail. Legal certaint
the différences of th

4. The Scope of Re

Notwithstanding his
about law. These ref
legal certainty and t
cipies of the constit
democracy.26 Accordi
uses relativism as a h
characterizes his posi
207) as close to that o
ism became fashionab
his legal philosophy
and more from exist
than the récognition t
justification, and that

5. The Rational Décision of Value Conflicts

Relativist elements are included also in the doctrine of antinomies of the idea of law,
suggesting that justice, legal security, and expediency (Zweckmäßigkeit) conflict with
each other (Radbruch 1950, 109; 1932, 74). In case of a conflict between the ideas
of law the conflict can only be resolved by the decisión of individual conscience (Rad
bruch 1950, 118; 1932, 84). Radbruch assumes that relativist elements are not only
to be found in issues of expediency but also regarding the ranking of these elements
in relation to each other. Thus, Radbruch acknowledges the necessity of the balancing
of values but denies that a solution to value conflicts may be objectively valid.28
Accordingly, Radbruch denies that the antinomies between legal values (justice, legal
certainty, expediency) or between the various doctrines of the purposes of law can be
decided rationally. However, regarding the conflict between justice and legal certainty
he himself presented solutions, in his "Rechtsphilosophie" in favour of legal certainty,
later, in the famous "formula" of Radbruch, a restricted priority of legal certainty as far
as the déviation of positive law from justice does not reach an intolerable degree. One
may ask which status these theses should have, if there is no rational solution to the
conflict? Obviously, Radbruch regarded them more than mere professions.29

Radbruch 1934, 17pp. Cf. also Adachi 2006, 73p., 86.

In this sense, it may be called critical rationalism, rather than relativism. Cf. also Klug 1968, 104;
Lohmann 1964, 79.
In his Postscript, Radbruch discusses a suggestion to call his position not relativism, but "antinomism"
(1947, 207). Indeed, this may better express the original element in Radbruch's legal philosophy. Rad
bruch daims that such antinomies are not regarded as failed attempts to achieve harmony, but as State
ments of objective, not dissolvable views, which nevertheless completely satisfy the quest for récognition
(Erkenntnisbedürfnis).
Ct. also Adachi 2006, 50.

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 Reconstructing Relativism 21

6. Individual Conscience and Object

Relativism also underlies Radbruch's statements on the relation between individual

conscience and objective validity of law. Legal validity is conceived of as normative, no
as a Must, but as an Ought, and an Ought can only be based on individual conscience.
As a conséquence, the validity of law cannot strictly be shown against the individual
conscience. The three sides of the idea of law are of equal value, and in cases of con
flict there is no other décision than that of the individual conscience (Radbruch 1950,
118; 1932, 84). However, if validity finally dépends on individual conscience, it is no
clear whether an objective legal order, being a normative system that is authoritativel
binding on its addressees, is possible at ail.

IV. Reconstruction

The problems of Radbruch's relativistic conception of law ask for some clarification.The
aim of my analysis is a reconstruction of this conception within the model of principies
that is, a conception of law and morality based on the idea of principies that - in case
of conflict - figure as normative arguments to be balanced against each other, and the
method of balancing such principies.30 A basic hypothesis of this reconstruction wil
be that Radbruch's relativism results from his awareness of value conflicts within the
law, and that this brings his conception of law close to the model of principies of law.
Thus, one might regard Radbruch a predecessor of the model of principies, however,
without the conception of principies and a method of rational balancing. Nevertheless,
the reconstruction of his relativistic account of law in the framework of the model of
principie might provide a better foundation of Radbruch's views and, on the other hand,
preserve valuable insights of Radbruch for the current philosophical discussion.

1. The Model of Principies

The central features of the model of principies are the logical distinction of principies
and definitive norms and the détermination of which norms are definitively valid by
means of balancing principies. This model, as understood here,31 includes the follow
ing theses.
(1 ) The distinction of normative arguments and normative statements: Normative argu
ments include requirements of which norm should be accepted as definitively valid,
whereas normative statements include assertions of which norms are definitively
valid.32
(2) The two-level-structure of law: Law includes not only definitively valid norms but
also principies that have the character of normative arguments.33

Cf. Dworkin 1978; Alexy 1985; Sieckmann 1990.

The model of principies draws on ideas developed by Dworkin 1978 and Alexy 1985. However, their
approaches are not relevant for the following analysis, since they apply différent conceptions of prin
cipies, balancing, and objective validity, and do not display the similarities with Radbruch's concep
tion required for the following reconstruction.
Cf. Sieckmann 1990, 75, 86; 2005,199. Various authors have criticized this conception without, how
ever, grasping its point. For a response cf. Sieckmann 2005, 206pp.
Cf. Sieckmann 1990, 83pp.

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22 Jan-R. Sieckmann

(3) The method of ba

means of balancing n
tion, aimed at establi
face of controversial
(4) The distinction
balancing of norma
tive validity but can
autonomous agents.
(5) Convergence as cr
convergence of reaso
that this norm shoul
first-order issues, on
Situation of reasonab
reasonable convergen
argumentation, law
tively binding norms.

2. Radbruch's Relativ

Radbruch's conceptio
as outlined above, alt

Firstly, in Radbruch'
the one hand, legal id
This corresponds to
not use the distinctio
normative argument
have common charac
do not have directly
are, according to Rad
according to the mod
There is a différenc
ancing, requiring a c
neo-Kantian legal phi
justice belongs to the
criticizes Stammler's
of positive law.39 Th
ture of law. Law is n
suggests that legal va
Radbruch, moreover
positive law. Whatev
to strive for realizin

Cf. Sieckmann 2004, 66p

Cf. Sieckmann 2004, 76
Cf. Sieckmann 2004, 82
Cf. Wiegand 2004, 84, r
Cf. Radbruch 1914,36
Cf. Radbruch 1914, 21p.;
to Wiegand 2004, 86.

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 Reconstrucling Relativism 23

is what ¡s required by principies

definitively valid in the balancing

Secondly, Radbruch emphasizes t

competing values. This recogni
However, Radbruch denies that
ing values is possible. Neverthele
balancing arguments, and at least
legal security, and expediency. A
Radbruch seems to recognize th
and that some décisions may eve

Thirdly, Radbruch emphasizes th

of conflicting normative views.
ing requires individual normativ
least not without further justifi
and establish the objective validit

Fourthly, Radbruch recognizes t

alone, but must have an empiric
enforce law. This does not deny t
Claims that legal validity requires
sphere. Similarly, in the model o
by reference to empirical facts,
Such a convergence, if it cannot
be enhanced or constituted by a
that legal validity dépends on th
established by a certain sort of e

Fifthly, Radbruch acknowledges,

man rights. He Claims that "the
them [resp. of natural law princi
consensus in the so-called déclar
matic sceptic could still entertain
far-reaching consensus about hu
the criterion of reasonable conve
opposed views remain to exist. H
validity of the principies recogn
agents.

3. Restatement of Radbruch's Re

In the framework of the model

as follows.

(1) Idea of law and legal principies: Radbruch's thesis that law must attempt to realize
the idea of law, which includes justice, but also legal certainty and expediency, may
be restated as the thesis that legal Systems include legal principies. Some of them
are conceptually necessary, namely the principies of justice and of legal certainty. The

40 Radbruch, Fünf Minuten Rechtsphilosophie, 1945 (transi, by Paulson/Paulson).

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24 Jan-R. Sieckmann

principie of justice in
principies, which be
contingent and are l
confers legal validity

(2) Antinomies and c

principies may, and
priority judgements,
true in spite of mut
tainty also is a requir
of equality, but the
according to which t
interrelations do not
between justice, lega

(3) The relativity of

that they often do n
binding. However, th
valid legal principies
Thus, priority judgem
hold only within th
relative is this sense
the case, or the "natu
one solution. Nevert
be, still dépends on
method of rational b

(4) Ultímate normati

normative Statemen
tive judgements, not
true orfalse.They m
a normative attitude
claim to validity of s
that everybody shou

(5) Objectivity and po

Without positive ena
certain remarks of R
those principies can c
it is not clear wheth
larations of human r
According to Radbr
ments of justice. Th
valid although it is r

In this respect, Radbruc

cies, suggesting that the
88.
However, Radbruch's rela
autonomous morality, ba
into account by other ind
est-based values, as well i
of which of them count a

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 Reconstructing Relativism 25

priority over demands of legal certa

demands of justice may invalídate

(6) Objectivity and reasonable dissen

exelude that one may be justified in
sonable convergence, though perha
accept the respective norms as valid
This follows because no alternative
Therefore, those who legitimately
valid do not have a reason for not co
consequently have to state the valid
exclude dissenters from upholding t
objective validity for them. Therefore
reasonable agent must accept it as

(7) Legal science and legal philosoph

ments about legal norms. Legal phi
concerned with alternative Systems
valid, and with the systematic élab
such Systems. However, scientific le
dispute between such Systems. On
ment that relativism rejects the cla
not abstain from making them, allo
part in substantial normative disco

V. Conclusion

The reconstruction of Radbruch's conception of law in terms of the model of principi

preserves central elements of his relativism and shows, moreover, the plausibility of
relativistic conception of law. The conception of law sketched above is relativistic in v
ous respects.
Firstly, it neither asserts nor déniés the existence of objectively valid norms or values.
Normative statements need a rational justification, and whether such a justification will
be possible is a contingent matter. Thus, this relativism is neither scepticism nor a natural
law position.
Secondly, the justification of normative statements is relative with regard to the accept
ance of values or principies, as well as the judgements of priority in cases of conflicting
values or principies. Some values or principies are necessarily legally valid, because they
are implied by the concept of law. But not all of them, and the interprétation of an abstract
and formai principie of justice gives space for diverging interprétations. Also judgements
of priority are a matter of choice, although certain results may be excluded by constraints
of reasonable balancing.
Thirdly, law is relative to authoritative enactment. As objective legal validity dépends
on reasonable convergence, which usually will not follow from substantial argumentation,
it needs to be established by means of authoritative legal décisions.
It should be clear that this reconstruction is not an interprétation of Radbruch. It does
not claim to présent his views. On the other hand, the reconstruction in terms of the
model of principies does not guarantee the correctness of the reconstructed conception.
Therefore, one might ask what is gained with this reconstruction. The ambition is twofold:
doing justice to Radbruch, and supporting the model of principies.

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 26 Jan-R. Sieckmann

The reconstruction s
dation. Radbruch sho
this philosophy in a su
features of law, in pa
presented a very mod
The reconstruction a
of this model does no
its basic structure in
certain problems of l
fact that Radbruch st
indeed présents an ad

Bibliography

Adachi, Hidehiko (2
tsphilosophie Gusta
Alexy, Robert (1985),
of Constitutional Rig
- (1994), Theorie der
of the 1. ed.: A Theo
- (1995), Probleme de
furt/M. 1995, 109-12
Bayon, Juan Carlos
para la acción, Cent
Besson, Samantha (2
the Law, Oxford/Po
Binder, Julius (1925)
Dreier, Ralf (1999),
(1999), 497-509
Dreier, Ralf/Paulson,
in: Gustav Radbruc
Paulson., 2. ed., He
Dworkin, Ronald (197
- (1996), Objectivity
fairs 25, 87-139
Jansen, Nils (1998), D
Kaufmann, Erich (1
1921
Klug, Ulrich (1968), Thesen zu einem kritischen Relativismus in der Rechtsphilosophie,
in: Gedächtnisschrift für Gustav Radbruch, hg. v. A. Kaufmann, Göttingen 1968,
103-106
Kriele, Martin (1963), Kriterien der Gerechtigkeit, Berlin 1963
Meyer, Lukas H. (2002), "Gesetzen ihrer Ungerechtigkeit wegen die Geltung a
sprechen". Gustav Radbruch und der Relativismus, in: R. Alexy/L.H. Meyer/S
Paulson/G. Sprenger (Hg.), Neukantianismus und Rechtsphilosophie, Baden-Baden
2002,319-361
Lohmann, Wolfgang (1964), Versuch einer methodologischen Erörterung der Rad
bruchschen Rechtsphilosophie, Diss. Tübingen, 1964

This content downloaded from 152.118.24.10 on Mon, 20 May 2019 12:45:51 UTC
All use subject to https://about.jstor.org/terms
 Reconstructing Relativism 27

Nelson, Leonard (1917), Die Rech

Radbruch, Gustav (1914), Grundz
- (1932), Rechtsphilosophie. Stu
Heidelberg 2001
- (1934), Der Relativismus in der
Gesamtausgabe Bd. 3: Rechtsphilo
17-22
- (1945), Fünf Minuten Rechtsphilosophie, in: Gustav Radbruch Gesamtausgabe III,
hg. v. A. Kaufmann, Heidelberg 1990, 78-79
- (1946), Gesetzliches Recht und übergesetzliches Unrecht, in: Gustav Radbruch
Gesamtausgabe III, hg. v. A. Kaufmann, Heidelberg 1990, 83-93
- (1947), Entwurf eines Nachworts zur „Rechtsphilosophie", in: ders., Rechtsphiloso
phie. Studienausgabe, hg. v. R. Dreier/S. Paulson, 2. ed., Heidelberg 2001, 193
208
- (1950), Legal Philosophy, in:The Legal Philosophies of Lask, Radbruch, and Dabin,
transi, by Kurt Wilk, Cambridge/Mass. 1950, 49-224
Rawls, John (1995), Reply to Habermas, in: The Journal of Philosophy 1995
Rodríguez-Blanco, Verónica (2004), Meta-Ethics, Moral Objectivity and Law, Paderborn
2004
Rorty, Richard (1989), Contingency, Irony, and Solidarity, Cambridge 1989
Sandkühler, Hans Jörg (2002), Natur des Rechts und Relativismus im Recht, in: R.
Alexy u.a. (Hg.), Neukantianismus und Rechtsphilosophie, Baden-Baden 2002,
127-156
Sauer, Wilhelm (1929), Lehrbuch der Rechts- und Sozialphilosophie, Berlin-Grunew
1929
- (1932/33), Die Rechtsphilosophie im Lichte von Partei- und Weltanschauungen,
ARWP 26 (1932/33), 75
Schneider, Hans-Peter (1973), Gustav Radbruchs Einfluß auf die Rechtsphilosophie
der Gegenwart, Nachwort zu Gustav Radbruch, Rechtsphilosophie, 8. Aufl., hg. v.
E. Wolf u. H.P. Schneider, Stuttgart 1973.
Sieckmann, Jan-R. (1990), Regelmodelle und Prinzipienmodelle des Rechtssystems,
Baden-Baden 1990
- (1995), Struktur und Begründung von Abwägungsurteilen, Rechtstheorie 26
45-69
- (1997), Richtigkeit und Objektivität im Prinzipienmodell, ARSP 83 (1997), 14-36
- (2003), On the Tension between Moral Autonomy and the Rational Justification of
Norms, in: Ratio Juris 16 (2003), 105-122
- (2004), Autonome Abwägung, in: ARSP 90 (2004), 66-85
- (2005), Principies as Normative Arguments, in: Values, Rights and Duties in Legal
and Philosophical Discourse, ed. by C. Dahlman/W. Krawietz, Rechtstheorie Beih.
21 (2005), 197-210
- (2007), The Concept of Autonomy, in: Law and Legal Cultures in the 21 st Century:
Diversity and Unity, Plenary Lectures of the XXIII. IVR-World Congress of Philosophy
of Law and Social Philosophy, Oficina (Kluwers), Cracow 2007, S. 149-170
Veitch, Scott (1999), Moral Conflict and Legal Reasoning, Oxford/Portland (Oregon)
1999
Wiegand, Marc André (2004), Unrichtiges Recht, Tübingen 2004

Anschrift des Autors: Prof. Dr. Jan-R. Sieckmann, Otto-Friedrich-Üniversität Bamberg, Fakultät Sozial- und Wirtschafts
wissenschaften, Feldkirchenstraße 21, D-96045 Bamberg

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