Ratio Juris. Vol. 19 No.

2 June 2006 (16979)

Effects of DefectsAction or Argument? Thoughts about Deryck Beyleveld and Roger Brownswords Law as a Moral Judgment*
ROBERT ALEXY
Abstract. Two claims lay the foundation for Beyleveld and Brownswords legal theory. The rst says that immoral laws cannot be law, the second that rights to freedom and welfare can be proven to be logically necessary given merely the phenomenon of agency. The author argues that both claims are too strong. The rst is an overidealization of law, which fails to do justice to its double nature as a real as well as an ideal phenomenon. The second must fail, for a moral ought cannot be deduced from a merely instrumental ought.

In recent debates about the concept and the nature of law, attention has been concentrated on two divisions: that between positivism and non-positivism, andinside positivismthat between exclusive and inclusive positivism. Divisions within non-positivism, however, have not attracted much discussion. The seminar on Law, Discourse, and Moral Judgment, which aims at a comparison of the non-positivist accounts of Deryck Beyleveld and Roger Brownsword on the one hand, and that of discourse theory on the other, offered an opportunity to explore this much-neglected eld. The work of Beyleveld and Brownsword is elaborate and extremely complex. I will conne myself to two points, both of which refer to theses presented in Law as a Moral Judgment, the main work of our two authors on non-positivism. The rst concerns the effect that inconsistency with moral principles has on the legal validity of authoritatively issued and socially efcient norms, the second, the justication and the structure of the moral
* I should like to thank Stanley L. Paulson for suggestions and advice on matters of English style.
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principles by means of which the moral correctness of legal norms is to be determined. I. The Effects of Moral Defects Non-positivism can determine the effect on legal validity that stems from the inconsistency of law with moral principles in any of three different ways. The question, in other words, pertains to the effects of moral defects on legal validity. It might be the case that legal validity is affected in no way at all, or that legal validity is lost in some cases, or that it is lost in all cases. Beyleveld and Brownsword appear to argue for the third position, the most radical non-positivist position.
We have presented Natural-Law Theory as an approach which contests the Separation Thesis, thereby holding, in the abstract, that there is a necessary conceptual connection between law and morality and, at a more concrete level, that rule X is not legally valid unless it is consistent with the EMR.1 It follows, then, that on our specication of Natural-Law Theory we have committed ourselves to a particular statement of the effect variable, namely, that the effect of inconsistency with the EMR is to render the phenomenon illegal/legally invalid. (Beyleveld and Brownsword 1994, 11)

Now, Beyleveld and Brownsword allow for considerable variation in natural law theory or in Legal Idealism, as they prefer to designate their theory, as explained in the preface to the reprinting (Beyleveld and Brownsword 1994, vii). The application of moral requirements may be restricted to some parts of the legal system, or to the level of procedure and not be extended to that of substance, or to the attempts of authors and appliers of rules but not to their achievements (ibid. 1994, 113). But with respect to the effect of moral incorrectness, they are inexorable. A non-positivistic theory which does not endow moral incorrectness with the effect of legal invalidity is declared not only to be wrong but, far more, not to be intelligible (ibid. 1994, 13). If one disregards certain additional renements, all this can be cast in the formula: [I]mmoral rules cannot be laws (ibid. 1994, xvi).2 This seems, at rst glance, to be rather strange. It looks as if morality completely ruled or governed (Beyleveld and Brownsword 2001, 76) the law. But this, due to the inherently controversial nature of moral issues (Beyleveld and Brownsword 1994, 369), would amount to anarchism. Beyleveld and Brownsword, however, are well aware of the problem (Paulson 1994, 114). They do not refrain from designating their own account

1 2

EMR stands for Essential Moral Requirement. For a more recent formulation compare Beyleveld and Brownsword 2001, 76: [I]mmoral rules are not legally valid.

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of natural law theory as such as vulgar (Beyleveld and Brownsword 1994, 13), and they develop a complex theory to delimit the unlimited effects on legal validity of the inconsistency of law with morality: the theory of restraint (ibid. 1994, 36879). The theory of restraint elaborates in a highly sophisticated way the idea of a moral obligation to comply with legally invalid rules (ibid. 1994, 45). The basic assumptions are the ideas of
a collateral moral obligation to comply with immoral rules as the lesser of two moral evils, and [. . .] a provisional legal-moral obligation in the case of controversial rules. (Ibid. 1994, 60)

Much of what Beyleveld and Brownsword say about the brake that the theory of restraint puts on moral idealism (ibid. 1994, 370) can be accepted with respect to its results. What is not to be accepted, however, is the basic structure of the argument, which is characterised, rst, by taking away legal validity for moral reasons, and then, once again for moral reasons, recreating moral obligation by means of collateral considerations (ibid. 1994, 373) concerning the moral costs of non-compliance on the one hand, and moral costs associated with compliance (ibid. 1994, 45) on the other. The second step seems to be a paradigmatic case of an auxiliary construction that attempts to treat the consequences of a mistake instead of curing the disease as such. Freges image, This expedient, as it were, belatedly gets the ship off the sandbank; but if she had been properly steered, she could have kept off it altogether (Frege 1984, 215), suggests itself here. My thesis is that an alternative construction that, from the beginning, gives more weight to the factual dimension of law vis--vis its ideal dimension is not only preferable for reasons of simplicity, but also with an eye to mirror better the nature or essence of law. The basic tenet of legal positivism is that legal validity either exclusively or essentially depends on social facts. These social facts can be described as authoritative issuance on the one hand, and social efcacy on the other. As noted above, non-positivism can determine the effect on legal validity that stems from the inconsistency of law with moral principles in any of three different ways. The rst of these ways is that legal validity may not be affected by moral defects at all. Still, in order to prevent the view from reverting to legal positivism, the defect must have some effect on the content of what has been authoritatively issued and enjoys social efcacyan effect, namely, consisting of something that falls short of legal invalidity but nevertheless amounts to something more than mere moral wrongness. This effect can be grasped or conceptualised by means of the distinction between classifying and qualifying connections between law and morality. One is employing a classifying connection when one maintains that norms, authoritatively issued and socially efcient, that fail to meet a particular moral
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criterion are not legally valid norms. By contrast, one is employing a merely qualifying connection when one maintains that while the failure to meet a particular moral criterion does not count against the status of the norm qua legally valid norm, this failure does render the norm legally defective. It is crucial that the defect asserted be a legal defect, not merely a moral defect (Alexy 2002, 26). Otherwise the qualifying connection would not count as a connection that contradicts the positivists separation thesis. John Finniss thesis that the statement lex injusta non est lex
either is pure nonsense, atly self-contradictory, or else is a dramatization of the point more literally made by Aquinas when he says that an unjust law is not law in the focal sense of the term law [i.e., simpliciter] notwithstanding that it is law in a secondary sense of that term [i.e., secundum quid] (Finnis 1980, 364)

seems to come quite close to a qualifying connection. The unjust rule remains law in spite of its injustice, but it is a legally defective legal rule. Thus, as Finnis puts it, it is only law in a secondary sense, not in the focal sense. The central point here is that neither a thesis based on the qualifying connection alone, nor one based on the classifying connection alone, is correct. Only a theory that assumes in some instances a qualifying connection and in others a classifying connection is adequate. The reason for this is found in the nature of law. Following Fulleras Beyleveld and Brownsword do on this point (Beyleveld and Brownsword 1994, 120)law can be aptly described as the enterprise of subjecting human conduct to the governance of rules (Fuller 1969, 74). This enterprise, qua enterprise, is oriented towards purposes or values (Alexy 2003, 89). Two values are of special importance here: legal certainty and justice. The claim to correctness, necessarily connected with law (Alexy 2002, 359), refers to both. The value of legal certainty transfers a moral value to the positivity of law. To be sure, this value may stand in harmony or in conict with justice or correctness of content. To resolve this conict in all cases at the expense of legal validityand, then, at the cost of legal certaintywould be to disregard the dual character of law as an enterprise that comprises a factual as well as an ideal dimension. Each dimension has its own standing. Beyleveld and Brownswords formula immoral rules cannot be laws (Beyleveld and Brownsword 1994, xvi) expresses an unjustied bias toward the ideal dimension of the law, which misconceives its real nature. For this reason, something like the Radbruch formula ought to be substituted for it. In its shortest form the Radbruch formula says: Extreme injustice is not law (cf. Alexy 2003, 15). According to the formula, the violation of a moral principle does not affect legal invalidity as long as the threshold of extreme injustice is not crossed. Short of crossing the threshold, it only affects legal defectiveness. Thus, this version of non-positivism shares with positivism a sources thesis in the form of a weak social thesis
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(Raz 1979, 45). Membership of the sources-family is necessary in order to do justice to the factual dimension of law. Given this inclusion of social facts in the concept of law, the version of non-positivism expressed by the Radbruch formula is a species of what might be termed inclusive nonpositivism. By contrast, Beyleveld and Brownswords formula, namely, immoral rules cannot be laws (Beyleveld and Brownsword 1994, xvi), might be seen as designating exclusive nonpositivism (cf. La Torre 2006). Exclusive non-positivism is an overidealization of law, just as Finniss restriction to qualifying connections is an underidealization. Until now, the factual dimension of law has only been considered under the aspect of legal certainty. The impact on the theory of non-positivism of the factual dimension increases considerably once it is connected with democracy. Democracy, qua deliberative democracy, is intrinsically connected with discourse, and discourse theory is one of the main alternatives to the principle of generic consistency that Beyleveld and Brownsword take over from Alan Gewirth (Beyleveld and Brownsword 1994, 119, 127) as the basis of their form of non-positivism. This leads from my rst point to the second. II. Action and Argument Non-positivism would be a poor theory indeed if it had nothing to say on the question of whether moral principles can be objectively justied or known. One might call this issue the problem of the moral basis of non-positivism. The problem has many different aspects. Here only the question of the justication of moral principles and of the proceduralisation of the legal system will be consideredor, what might be more accurate, touched upon. The discourse-theoretical approach and that of Beyleveld and Brownsword agree on two points. The rst is that our actual practice has to be the starting point of the argumentor, more radically, we have to be its starting point. This must be so, for, as Kant puts it, neither in heaven nor on earth is there anything [on] which [morality] depends or on which it is based (Kant 1964, 93), meaning by earth the empirical world. And this can be so, for morality is necessarily already implicit in our practice. Thus, the form of argument in both approaches consists of making explicit what is already implicit, that is to say, the argument in both cases is a version of a transcendental argument. The second common point concerns the outcome. In both cases the argument yields the thesis that human beings have human rights. Going beyond these two common points, however, there is disagreement concerning rst, the nature of the starting point, second, the structure of the argument, and, third, the character of the result. Beyleveld and Brownswords starting point is the concept of action, dened by voluntariness and intentionality (Beyleveld and Brownsword
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1994, 129). The starting point of discourse theory is the practice of asserting, asking, and arguing (Alexy 1992, 23444), or, to put it in Robert Brandoms words, the practice of giving and asking for reasons (Brandom 2000, 11). The difference, in short, is the difference between action and argument. Now, the more secure or necessary its starting point, the better the transcendental argument is. Here Beyleveld and Brownsword have a clear advantage. It is far more difcult to avoid intentional action than to avoid argument. A life without adducing arguments might, perhaps, be possible, whereas it is difcult to conceive of a life without intentional action. What is more, the differences concerning the structure of the argument are considerable. Following Gewirth, Beyleveld and Brownsword claim that their supreme moral principle, provided that agency is presupposed, is logically necessary (Gewirth 1978, 23; Beyleveld and Brownsword 1994, 128). They claim their argument is a matter of strict conceptual necessity (Beyleveld and Brownsword 1994, 140). Now discourse theory is a far less homogenous camp than the Gewirth school. Some authors, like Karl-Otto Apel, with their demand for nal justication (Letztbegrndung), come quite close to the methodological claims of Gewirth, Beyleveld, and Brownsword. Such a claim is not necessarily connected, however, with discourse theory. In my version, a bundle of premises expressing neither logical nor conceptual truths must be added to the transcendental argument if it is to bridge the gap between the human capacity to argue and human rights. These premises include an interest in correctness (Alexy 1992, 243) and an interest in solving social conicts by discourse (Alexy 1996, 2234); both can be conceived as expressions of an existential decision that conrms a commitment to ones discursive capacitiesor, to put the point differently, an identication with ones nature qua discursive creature (Alexy 2004, 21). These premises, in turn, are to be connected with assumptions concerning the maximising of individual utility, assumptions that are necessary in order to take account of those persons who lack any interest in correctness or possess it only to a marginal degree (Alexy 1992, 243, 247). It is obvious that Gewirths method would clearly be superior to a mixed construction such as this if only it worked. The third point of disagreement concerns the character of the result. The result of Gewirths argument is the principle of generic consistency (PGC), which says: Act in accord with the generic rights of your recipients as well as of yourself (Beyleveld and Brownsword 1994, 133). The expression generic rights in this formula refers to rights to freedom as well as to rights to well-being (ibid. 1994, 131). In our context, the decisive point is that the principle of generic consistency is not only a moral principle at the highest level, it is the supreme moral principle (ibid. 1994, 133). As such, it comes close to what Kelsen has called a static principle (Kelsen 1967, 195). Its role as a supreme substantive principle (Beyleveld and Brownsword 1994, 141) becomes quite clear when Beyleveld and Brownsword say:
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Only if the material constitution actually is morally legitimate under the PGC is there a legal constitution (ibid. 1994, 290),

or when they claim:

Because the PGC is presupposed by all practical reason, and law is an affair of practical reason, the PGC is the supreme principle of all practical, Legal, and Moral Reason. In being the supreme principle of all Legal Reason, it follows that the Legal status of all actions and institutions is determined by the PGC, and that there is a right and a wrong answer to the question of the Legal status of any action of institution. (Ibid. 1994, 18990)

This sounds as if Beyleveld and Brownsword intended to propose something like a deductive system in which all content is derivable from one supreme principle. This, however, would be a mistaken interpretation of the two authors. The mistake in such an interpretation would not stem, however, from their stressing that the specic demands of their principle have to be determined according to the circumstances (ibid. 1994, 190). All rational defenders of substantive supreme principles stress the necessity of concretisation. The real reason for holding that the model of Beyleveld and Brownsword is not a simple deductive model is their theory of delegation. The story, however, is complex. According to Beyleveld and Brownsword,
[t]he PGC can, in principle, resolve directly the problem of which behaviours are optional/obligatory/prohibited. (Ibid. 1994, 179)

This thesis is quite close to a deductive model and very far removed from what is assumed by discourse theory. Discourse theory does indeed include a set of rules and principles that are in some instances akin to ideas used by Gewirth, but it does not claim that normative questions can be resolved by subsumption under these rules or principles. The procedure of discourse is indispensable. One can therefore say that Beyleveld and Brownswords approach is essentially subsumptive or deductive,3 whereas discourse theory is essentially procedural. This has far-reaching consequences for the understanding of democracy, legal argumentation, and constitutional review. This contrast between deduction and procedure is not enough, however, to give one a true picture. Discourse theory comprises not only procedural elements. At the most abstract level it contains the theory of discursive modalities, that is, the distinction between what is discursively necessary, impossible, and merely possible (Alexy 1989, 207). The discourse-theoretical
The concept of deduction is, indeed, used by the two authors: To apply the PGC directly is to deduce what it requires in the circumstances of its application (Beyleveld and Brownsword 2001, 82; emphasis by the author).
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justication of human rights is an attempt to lend some content to these abstract ideas. In this way, the procedural moves in the direction of the substantive. Still, Beyleveld and Brownswords theory of delegation seems to call for an interpretation as a movement in the opposite direction. Delegation is said to be necessary in two cases, in cases of conicts over what is optional/obligatory/prohibited and in cases of incompatible courses of optional behaviour (Beyleveld and Brownsword 1994, 178). But this delegation is a delegation of authority to resolve these conicts (ibid. 1994, 179). Of course, the authorized persons and bodies have to orient themselves on the principle of generic consistency. This, however, is something rather different from a conception of the legal system which is thoroughly and systematically oriented towards the idea of discourse. It is impossible to pursue further all the points of difference mentioned here. In what follows I will conne myself to the question of whether Beyleveld and Brownswords approach deserves priority over discourse theory from the standpoint of the philosophical foundation of human rights. This would be the case if the deduction of the principle of generic consistency, which they take over from Gewirth, were sound. My thesis is that it is not sound. Gewirths argument has been the topic of much debate. I will concentrate on the role that the concept of action on the one hand, and of argument on the other, play in the deduction. The concept of action will be understood as purely instrumental, that is, as expressing nothing other than the idea of purpose-rationality. By contrast, the concept of argument is understood as intrinsically connected with a claim to correctness, addressed to all to whom the argument is directed. My thesis is that the deduction fails if action is interpreted purely instrumentally, and that it can succeed only if elements of argument, that is, discursive elements, are introduced at one point or another. In this case, however, the discourse-theoretical foundation of human rights is, as such, preferable. In order to demonstrate this, Gewirths argument shall be considered in the form in which it is presented by Beyleveld and Brownsword in Law as a Moral Judgment. More recent presentations such as, for instance, that in Human Dignity in Bioethics and Biolaw (Beyleveld and Brownsword 2001, 734), do not count as substantially different. For reasons of simplicity an intermediate step, which presents an argument of Gewirths on how to connect premise (5) with premise (4), is skipped. This has the consequence that the numbers following (5) are altered. The argument runs as follows: (1) (2) (3) (4) I do X for end or purpose E. E is good. My freedom and well-being are necessary goods. I must have freedom and well-being.
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(5) I have rights to freedom and well-being. (6) I have rights to freedom and well-being because I am a prospective agent. (7) All prospective agents have rights to freedom and well-being. (8) I ought to act in accord with the generic rights of my recipients as well as myself (Beyleveld and Brownsword 1994, 12933). The step from (1) acting for the purpose E to the evaluation of (2) E as good shall be accepted along with the next step, which leads to the sentence that (3) freedom and well-being are goods as general or generic means for everybody who strives to realize any purpose, in our case E. Clearly, there may be doubts about this or that, but they could be removed by rening the premises. The next step, which leads to the premise that (4) I must have freedom and well-being, can also be accepted, namely, if the must in this sentence expresses an exclusively instrumental necessity. Up to this point, there is no concept with a deontological connotation. This changes, however, with the next step. It leads from the instrumental or, as von Wright puts it, anankastic must (von Wright 1963, 157) to the deontological concept of a right: (5) I have rights to freedom and well-being. This premise is ambiguous. The clause I have rights can either mean that the rights have been established by an agreement or some other social act, or that I have them simply because they are justied. The rst line leads to theories of rights based on bargaining, that is, to an instrumental theory of rights in the tradition of Hobbes, and, as found in more recent times, for instance, in James Buchanans economic approach (Buchanan 1975, 5373). But this is not the line Beyleveld and Brownsword want to follow. On the contrary, they emphasize that it is not the nature of the argument to show that it is prudent (either individually or collectively) to be moral (Beyleveld and Brownsword 2001, 74). The concept of a right is directly, that is, without being socially established, conceived as a justied claim (Gewirth 1983, 16; Beyleveld and Brownsword 1994, 132). With the concept of a justied claim, the step from instrumental action to discourse is taken. This is no problem for discourse theory, but it is a problem for the argument of Gewirth, Beyleveld, and Brownsword. This step is neither logically implied by premise (4) nor by any combination of the premises (1)(4). The reason for this can be put in Kantian terms: Hypothetical imperatives do not imply a categorical imperative. Discourse theory agrees with Kants thesis that persons as rational beings necessarily belong to a moral world, which counts as a different standpoint (cf. Kant 1964, 118) from that of the non-moral world. Membership of the moral world is not, however, entailed by the ability to engage in purposive action. The moral has to be added to the instrumental; it is not already contained in it. This addition cannot be achieved by means of an analysis of the concept of instrumental action, but
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only by an analysis of what it means to make an assertion, to ask a question, and to give a reasonin short, by an analysis of communicative action or discourse. This is my main reason for preferring discourse theory to an approach oriented toward Gewirths argument. Christian Albrechts University Faculty of Law Olshausenstrae 40 D-24118 Kiel Germany E-mail: alexy@law.uni-kiel.de

References
Alexy, Robert. 1989. A Theory of Legal Argumentation. Trans. Ruth Adler and Neil MacCormick. Oxford: Clarendon. Alexy, Robert. 1992. A Discourse-Theoretical Conception of Practical Reason. Ratio Juris 5: 23151. Alexy, Robert. 1996. Discourse Theory and Human Rights. Ratio Juris 9: 20935. Alexy, Robert. 2002. The Argument from Injustice. A Reply to Legal Positivism. Trans. Bonnie Litschewski Paulson and Stanley L. Paulson. Oxford: Clarendon. Alexy, Robert. 2003. The Nature of Arguments about the Nature of Law. In Rights, Culture, and the Law. Themes from the Legal and Political Philosophy of Joseph Raz. Ed. Lukas H. Meyer, Stanley L. Paulson, and Thomas W. Pogge, 316. Oxford: Oxford University Press. Alexy, Robert. 2004. Menschenrechte ohne Metaphysik? Deutsche Zeitschrift fr Philosophie 52: 1524. Beyleveld, Deryck, and Roger Brownsword. 1994. Law as a Moral Judgment. 2nd ed. Shefeld: Shefeld Academic Press. Beyleveld, Deryck, and Roger Brownsword. 2001. Human Dignity in Bioethics and Biolaw. Oxford: Oxford University Press. Brandom, Robert B. 2000. Articulating Reasons. An Introduction to Inferentialism. Cambridge, MA: Harvard University Press. Buchanan, James M. 1975. The Limits of Liberty. Between Anarchy and Leviathan. Chicago, IL: University of Chicago Press. Finnis, John. 1980. Natural Law and Natural Rights. Oxford: Clarendon. Frege, Gottlob. 1984. A Critical Elucidation of some Points in E. Schrder, Vorlesungen ber die Algebra der Logik. In Gottlob Frege, Collected Papers on Mathematics, Logic, and Philosophy. Ed. Brian McGuinness, 21028. Trans. Peter Geach. Oxford: Blackwell. Fuller, Lon L. 1969. The Morality of Law. Rev. ed. New Haven, CT: Yale University Press. Gewirth, Alan. 1978. Reason and Morality. Chicago, IL: University of Chicago Press. Gewirth, Alan. 1983. The Epistemology of Human Rights. Social Philosophy & Policy 1: 124. Kant, Immanuel. 1964. Groundwork of the Metaphysics of Morals. Trans. Herbert J. Paton. New York, NY: Harper. Kelsen, Hans. 1967. The Pure Theory of Law. Trans. Max Knight. Berkeley, CA: University of California Press.
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La Torre, Massimo. 2006. On Two Distinct and Opposed Versions of Natural Law: Exclusive versus Inclusive. Ratio Juris 19: 197216. Paulson, Stanley L. 1994. Law as a Moral Judgement. By Deryck Beyleveld and Roger Brownsword. Ratio Juris 7: 1116. Raz, Joseph. 1979. The Authority of Law. Essays on Law and Morality. Oxford: Clarendon. Wright, Georg Henrik von. 1963. The Varieties of Goodness. London: Routledge.

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