The Legality of Evil
A Response to Balázs Majtényi on Radbruch’s Formula and Amoral Law
Lex iniusta non est lex – an unjust law is not a law. This centuries-old legal maxim lies at the heart of Balázs Majtényi’s recent Verfassungsblog entry. Majtényi resurrects Gustav Radbruch’s famous formula, according to which ‘where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely “flawed law”, it lacks completely the very nature of law [emphasis mine].’ Radbruch, of course, wrote these words in 1946 with Nazi law in mind, but it can be applied outside of that context – Majtényi relies on it to challenge the Hungarian legal system that he describes as ‘flawed and compromised in numerous ways’. This essay is, however, not concerned with the accuracy of this description – I will leave this to those more familiar with Hungarian law and politics – but the utility of Radbruch’s formula when faced with legal systems we deem evil. Here, my answer differs radically from Majtényi’s.
Evil Law and its Species
But first, I should make a side note about the language Majtényi uses in his contribution. Rather than simply talking about evil law, he centres on ‘amoral law’, which to him is ‘law that does not systematically follow moral rules.’ ‘Amoral law’ seems, on my reading, to be a species of evil law – and a target of Radbruch’s formula – together with ‘immoral law’, the definition of which is not given, apart from more particularised descriptions like ‘following racist ideals’ or ‘serving exclusionary ideals’. As I understand Majtényi, ‘amoral law’ refers to law that is not in congruence with what Lon Fuller would call1) ‘internal morality of law’ or the Rule of Law – while not necessarily being substantively iniquitous (this role is delegated to ‘immoral law’), they represent regimes are a collection of chaotic and disparate rules ‘driven solely by the [amoral regimes’] wish to maintain and strengthen their power’. The choice to focus on ‘amoral’ rather than ‘immoral’ (in Majtényi’s terminology) law seems puzzling to me, as Radbruch’s formula, at first glance, seems to only accommodate the latter and, apart from numerous assertions, there is no defence to the contrary. However, for the purposes of this foregoing argument, one can provisionally assume that the Radbruch formula is indeed that capacious.
Separation of Legality and Morality Is Both Possible and Desirable
There are two prongs to my argument against Majtényi’s insistence that adopting the Radbruchian approach will, indeed, ‘deliver us from evil’. The first one is that nothing precludes us from describing a legal system as ‘evil’, ‘immoral’, or ‘amoral’, for that matter, while also not disputing its legal validity. Even more so, this recognition does not stop us from disobeying it if it lacks moral validity. As HLA Hart eloquently argues in his 1958 polemic against Radbruch, when faced with ‘any sinister use of the slogan “law is law” or of the distinction between law and morality’, one should respond: ‘Very well, but that does not conclude the question. Law is not morality; do not let it supplant morality.’ This point sounds quite trite, but precisely because it is a truism; such that Ronald Dworkin simply declared2) the ‘puzzle of evil law’ as of ‘almost no practical importance’. By appealing either to morality as a criterion of legally valid law or as an extraneous principle that directs us to take action against it, we reach the same result via different routes – the morally iniquitous law loses its power.
Conceptual Clarity
Of course, to conclude here would be not to give Majtényi’s argument the justice it deserves. Contrary to Dworkin’s comments, just because you can reach his desired result without applying the Radbruch’s formula, it does not mean that you will achieve it just as well. It thus falls on me to defend the second prong of my argument – that abandoning Radbruch’s mixing legality with morality is a better way of resolving the ‘puzzle of evil law’. There are two reasons why it is so – of conceptual and moral clarity. Firstly, treating evil laws as legally valid allows us to open our minds to the fact that law is often not a hindrance, but a tool for those regimes to consolidate power, as they are indispensable for coercion, coordination, legitimation, and so forth. Even more so, by recognising law of evil regimes as law, we do not just learn about these regimes, but about law as such: if we subscribe to the anti-Radbruchian view, we can see that law is nothing more than an instrument that can be used for good or evil.
Moral Clarity
Secondly, this conceptual clarity is inevitably intertwined with moral clarity. Treating the institution of law as inherently moral is just as – or even more – dangerous as mindlessly chanting ‘law is law’ or whatever the Radbruchians think those separating law from morality are doing. Hart, for instance, argued3) that it is crucial to ‘preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience and that, however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to a moral scrutiny’. I call such an argument ‘the Pandora’s Box Objection’, according to which in the absence of objectively ascertained moral standards (that Majtényi concedes is the case) invoking morality in deciding what to call ‘law’ carries a risk of uncritically venerating the latter.
Majtényi’s Rejoinder: Resisting Evil Law
Let us consider some arguments to the contrary that Majtényi provides. He argues that Radbruch’s formula ‘assists primarily those who oppose evil law’. Majtényi considers three stages at which the formula would be relevant: resisting evil law in real time from the inside, responding to evil regimes from the outside through international institutions such as the EU, and ‘eradicat[ing] the remnants of the regime’ when they fall. These stages, he notes, all involve returning to moral arguments. If, as I have claimed before, recognising the legal validity of evil law does not preclude exhibiting negative moral attitudes towards that law and acting on them, there is no need for the Radbruch formula to come into play to achieve just that. Take an example most elaborated on by Majtényi. There ‘may be people who fight using civil disobedience, for whom the legalistic answer that their actions are illegal is unacceptably simplistic.’ If we take Radbruch’s approach, ‘[t]heir struggle may be supported by the knowledge that they are fighting statutory lawlessness.’ However, I cannot see how fighting against a valid, but morally iniquitous law cannot provide a rallying cry just as strong as the one supplanted by Radbruch’s formula.
Agree or disagree with it, Majtényi’s essay provides a fertile soil for further examination of the phenomenon of evil law (or, as he would probably rather put it, evil lawlessness). However, it has its shortcomings as it closely gets to, but ultimately fails to capture one uncomfortable truth about law – what I shall call, somewhat cheekily riffing off Hannah Arendt’s seminal work, ‘the legality of evil’, or the serviceability of law to evil regimes. Refusing to recognise the legal validity of the morally iniquitous laws does not empower, but, on the contrary, disempowers us in the face of them.
Practical Importance of the Invalidity of Evil Law: Response to Anna Lukina
Your essay on the Legality of evil encouraged me to rethink and clarify my points. Different theoretical positions can be taken in this debate, several of which can be rationally argued for.
First, I would like to clarify my position. In my article, I am not using the Radbruch Formula but proposing a different one that does not require the immorality test but applicable to deny the validity of the Hungarian legal system, and also that of similar authoritarian systems. In my view, the Radbruch Formula is still relevant today primarily because of its simplicity and the historical moment in which it was formulated. Some of my colleagues argued that the Hungarian system could be even worse: while incitement against various minorities (refugees, Roma) is part of the system; there are for instance no political murders. Indeed, the Hungarian regime does not reach the brutality of Nazi Germany. However, I also think that we can argue for the invalidity of legal systems not only in the case of Nazi-type regimes. The proposed formula claims that an amoral legal system based on realistic politics, which is insensitive to good and evil, does not exist. According to my point, there is no underlying political morality in the Orbán regime, and a political system unconstrained by moral principles cannot justify political authority, that’s why we do not have political obligations either.
In your essay you claim the following: “I cannot see how fighting against a valid, but morally iniquitous law cannot provide a rallying cry just as strong as the one supplanted by Radbruch’s formula.” However, I believe the formula I propose does have practical importance: this type of regime cannot be replaced unless you deny the validity of its basic rules. I am not focusing on the denial of one particular legislation, but on the case when the entire legal system is flawed. The main reason for writing my article was that the academic debate on possible constitution-making in Hungary has not provided an unambiguous response to the question of how to justify the denial of the basic rules of the authoritarian regime.
One can argue that the rejection of evil law on moral grounds may indeed be similarly empowering without denying the validity of it. This is an empirical question and I cannot prove that this approach would have triggered more resistance among legal scholars and practitioners in Hungary. My experience is that the emphasis on the formal aspects of law in Hungarian legal education and academic debates has led to the marginalization of the moral aspects of the life of the political community. However, dealing with this issue would require the assessment of individual behaviors of Hungarian academics which I would like to avoid for now, because it is very difficult to have such a debate within my academic community.
Indeed, civil disobedience is not the most convincing example to prove the practical importance of the invalidity of the evil law. My intention with this example was to indicate the simplicity of the purely legalistic view and to draw attention to the importance of moral reasoning. Recently, students and teachers in Hungarian public education have been protesting against poor working conditions and low salaries of the teachers, for better education and because the restriction of teachers’ right to strike has forced them to engage into civil disobedience. It is arguable, whether the main issue is for them the validity of the specific law, or their outrage at the injustice of the whole legal system. Maybe, many of them would not participate in these actions in a political system where political morality exists and where the aim would not be to change the basic rules of the nonmoral legal system. But in order to substantiate the claim about these motivations, we need empirical evidence too. As I have written before, my experience in Hungary shows me that the emphasis on formal aspects (eg. we still have the publicity of valid rules) usually leads to the marginalisation of moral aspects, and narrows down the possibilities for morally based action, including the use of the instrument of civil disobedience. Very few people in higher education, for example, have shown solidarity with teachers.
Based on the proposed formula it is necessary to distinguish between systems where there is political morality and where the principle of political morality cannot limit the functioning of the system or violates equality and justice in a serious way. We can raise the question of obedience in every legal system, but if one makes a distinction between moral and nonmoral political systems it allows not only to condemn a piece of unjust legislation but to consider the basic rules of a nonmoral system invalid too.
As I mentioned, the distinction made between evil and non-evil legal systems has not only a symbolic but also a practical significance too. In Hungary, the authoritarian system is nominally governed by law (“rule by law”), but it does not allow political changes in the way constitutional democracies normally do, since the system has taken over the media, occupied previously independent institutions, and has restricted and sometimes even emptied out fundamental freedoms. Thus, if there is social support for democratization, we would also need to justify the invalidity of the basic rules of the system in order to make the political transition manageable.
Balázs Majtényi