Hermann Heller_ the Legitimacy of Legality

8/8/2019 Hermann Heller_ the Legitimacy of Legality

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Hermann Heller and the Legitimacy ofLegality

DAVID DYZENHAUS*

1 IntroductionHermann Heller died in 1933 in Madrid. He was only forty-two years old andin the midst of trying to complete a full statement of his legal philosophy in hisStaatslehre or theory of the state.1 As a Jewish, politically active socialist, he wasa prime target for the Nazis when they scented power in late 1932 and, onHarold Laski's invitation, he travelled to England on a lecture tour. Stripped ofhis academic position by the Nazi law of 7 April, 1933, the law for the 'Restorationof the Professional Civil Service', he accepted a chair in M adr id, hoping to finishhis Staatslehre there and the n to take up a position offered to him by the U niversityof Chicago. He suffered from a heart condition, the legacy of front-line serviceas a volunteer in the First World War, and the destruction of the WeimarRepublic, together with the stress of his political activity in its last years, provedtoo much for him.2Heller was one of Weimar's m ost distinguished public lawyers, bu t he receiveslittle attention in Germany in comparison with his colleagues, Carl Schmitt orHans Kelsen. And until quite recently, he was almost unknown in the English-speaking world.3 Yet Wolfgang Schluchter, one of Germany's leading social andpolitical theorists, claimed in 1968 that 'contemporary political thought hasevery reason not to ren ounce his legacy'.4 Schluchter summarizes Heller's projectas one which seeks to 'make comprehensible the structure of law, morality and

Faculty of Law and Dep artm ent of Philosophy , University of Toron to. I wou ld like to thank the Alexand ervon Hu mboldt Foundation and the Social Sciences and Hum anities R esearch Coun cil of Canada for their supportof the project of which this article forms a part. I thank Rob Howse, John P. McCormick, Cheryl Misak, andChristine Sypnowich for comments.1 The manuscript was in good enough shape to be published in 1934 in Holland in an edition put together byG. Niemeyer, one of Heller's students. It is reproduced in C. Mflller (ed), Heller, Gesammtlu Schrifun (2nd edn,1992), vol 3, 79; hereafter SL . A substantial part of the last section of this work will appear in my translation inA. Jacobton and B. Schlink (edj), Wtimtrr. Tht Jtmsprudtna of Crisis.I am grateful to Ruth Ingram and Jane Winikus, Heller's daughters, as well as Elaine Robson-Scott, for thisinformation.3 See the excellent discussion of Heller in W. Scheuerman, Btaattn tht Norm and tht Exception: Tht FrankfurtSchool and tht Rule of Law (1994) .4 Schluchter, Entschadung fQr den sonaltn B^lfrr"""*' Hermann HeOer und die staauthtoraitcht Diskusiion in derWamarrr RtpubHk (2nd edn, 1983) , 290.

* Oxford University Press 1996 Oxford Journal of Legal Studies V DI 16, N o 4 0


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642 Oxford Journal of Legal Studies VOL. 16power, without tearing one of these limbs loose from the others or identifyingone with another'.' By making this his aim, by preserving tensions between law,morality, and power at the heart of his theory, Heller presents, says Schluchter,a genu ine alternative to the 'frightful simplifications in political theory andpolitical practice'.6Schluchter is the first to admit that an understanding of Heller's Staatslehre isplagued by ambiguities in that work.7 As he points out, Heller's confidence inthe institutions of the democratic Rechtsstaat, the state bound to the rule of law,.had to be badly shaken by the events of the 1930s. Remarkable, in my view, isthat He ller's confidence, though shaken, remained intact. Despite the destructionof German democracy and the fact that he could not return to Germany, theStaatslehre is a measured, dense and abstract account of the Rechtsstaat and itsplace in Western culture from a man more than capable of quick and bitingpolemics. Moreover, it is an account of the Rechtsstaat, and thus of the rule oflaw, which can contribute significantly to contemporary debate.Here I explore that account. I suggest that ambiguities in Heller's argumentare in a way necessary components of that argument, given Heller's aim ofpresenting a theory of legitimacy and legality which preserves tension at its heart.But before I begin with that account, it is important to have some sense of theproblem to which Heller was responding. I will refer to it as the 'Weberianproblematic'.8

2 The Weberian ProblematicIn Economy and Society, Max Weber makes the following observation: 'today themost usual basis of legitimacy is the belief in legality: The readiness to conformwith rules which have been enacted according to the formally correct andaccepted procedures'.9 This observation has been much criticized, first, forreducing the basis of legitimacy to mere belief; secondly, for making the belieflatch onto mere formal compliance with formal procedures.

5 Ibid at 116.4 Ibid at 290.7 For Scblucfater's account of the ambiguities in the StaatsUhn, and his own (ketch of a resolution, tee, ibid at198-216. The resolution I offer below differs from Schluchter't mainly because I do not accept his view thatHeller regarded the principles of ethics or morality as absolute and unchanging. This view requires Schluchter tointerpret the constraints on political power for which Heller argues as essentially negative: as long as legislatorsdo not offend against the rules of morality, their prescriptions will count as law. See Schluchter, ibid at 208-10.Schluchter, ibid, suggests Heller's legal and political theory as the most productive way out of the Weberianproblematic. See also his The Rise of Western Rationalism; Max Webers Developmental History (1981) at 104-5.' See G. Roth and C. Wittich (eds) , Weber, Economy and Society, first pub 1922 ( 19 78 ), vol 1 at 37. Here Iadopt David Beetham's translation of 'Die heute geUufttigste LeginmitStsform ist die LegaliUtsglaube: dieFQg&imkeit gegen uber formal korrekt und in der Qblichen F orm zustande gekom men Satzungen'; see Weber, J.Winckelmann (ed), VPixtschaft un d GtstUschaft (4th edn, 19 56), vol 1 at 19 and Beetham, M ax Wtber an d the Theoryof Modem Politics (2nd edn, 1985) at 265. In the account of the problems which follow from this formulation, Irely heavily on Beetham, ibid at 264-9, as well as Beetham, The Lepamation of Potoer (1991) ch 1. For a particularlyrich account of the Weberian problematic, as well as fruitful suggestions as to how it can be addressed, see D.Scrulli, Theory of Social Constitutionalism: Foundations of a non-Marxist critical theory (1992) .


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WINTER 1996 Hermann Heller and the Legitimacy of Legality 643The first criticism is that to equate legitimacy with belief in legitimacy is toexclude the possibility that there are standards of legitimacy apart from whatpeople happen to believe. There is no doubt that this was Weber's intention.

The quotation is not so much an observation but a conclusion which followsfrom his claim that such standards, in the sense of substantive values that couldattract a consensus, are not available to us. In the dramatic terms of 'Science asa Vocation', we live in a world where different 'gods and demons' vie for ourallegiance. But our world is 'disenchanted': tradition no longer provides ananchor for our choice between values, and science and rational thought in generalhave proved themselves incapable of supplying an adequate surrogate.10 Further,it is the case for Weber that 'readiness to conform' is evidenced when there isin fact compliance, whether compliance is produced by coercion or conviction,with the rider that at least officials have to comply for reasons other than fear."The second criticism is that if the formal rationality of legal procedures is theonly thing onto which the belief in legitimacy can latch, any law that survivessuch procedures is legitimate. That is, Weber puts forward more than thestandard positivist thesis that law is valid no matter how morally repugnant itscontent as long as it has been enacted in accordance with the formal criteria forvalid law. For it follows from his definition of legitimacy that such law is alsoby definition legitimate. Legitimacy is collapsed into formal validity.Weber's development of the idea of the 'charismatic' authority as the basis fortrue political leadership in the age of disenchantment can only underline thesecriticisms.12 The basis cannot, on his view, be tradition, since such a basis hasno general purchase in a disenchanted age. Nor can the basis be law itself, sincethe authority of law is now m erely formal. T he basis is in the leader's charisma hisability to articulate a political vision. In a system where the leader is elected bydirect vote, the basis of his legitimacy is not then the vote but the vision whichattracted the vote. The vote is merely the mark of his success.For Weber, there are no criteria for success beyond success itself. Althoughhe was himself a liberal,13 he held that once the people acclaim the leader hisauthority is established, no matter the content of the vision which wins theiracclaim. And the people's role in democracy, as he understood it, is and shouldbe limited to acclaim. Since the essence of politics is conflict, and since the'masses' are capable of acting only in an emotional and dangerous fashion, theirrole is to be confined to being passive objects rather than political actors.14Weber did not celebrate the idea of charismatic authorityhe thought rather

10 Weber, 'Science at V acation' in H. H. Gerth and C. Wright Mill* (ed), From Max Wtben Essays in Sociology(1947) 148." Compare ch 2 and 3 of Weber, above n9, vol 1, at 214, s e c 3 .12 S w f W d , w M , 2 4 1 - 5 , 2 6 6 - 7 1 , and vol 2, at 1127-30 .15 For an exploration of Weber'i Hbcraliim, tee Beetham, "Weber and the Liberal Tradition ', first pub in (1989)30 European Journal of Sociology 311, reproduced in A. Horowitz and T. Maley (eds) , The Barbarism of Reason:Max Wtber and the Thnhght ofEnUghunmtnt 99.14 See, for example, 'ParUment und Regierung in neugeordeneten Deutschland', in Weber, J. Winckebnann(ed), Gesammtla PoUasdu Sckrifien (3rd edn, 1958) 306, at 3 8 2 - 4 0 6 . For disciusion, ee Beetham, Max Weberan d tht Theory of Modem Politics, above n 9, ch 4, and 2 6 4 - 9 .


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644 Oxford Journal of Legal Studies VO L.16that one had to be resigned to it. And he hoped that such authority would be amere counterbalance to the system of political compromise which he understoodto be the essence of the normal politics of a liberal democratic constitutionalstate. The charismatic authority of the leader would be just the exceptional lastresort when conflict could not be resolved by compromise and thus threatenedto spill over the framework of legal order.Correspondingly, he argued that in a modern democratic state the charismaticleader will find his charisma rationalized in that he must seek re-election at somepoint, and thus become accountable to the electorate. And he pointed out thatsuch a leader would have to stabilize his rule through the mechanisms of a legalorder."Among Weber scholars, opinion is divided as to just how Weber envisionedthe structure of balance between charismatic executive authority and formallyrational legal order.16 But it is. difficult to see how he thou ght it could bemaintained, at least under conditions of severe political conflict.This difficulty arises because for Weber charismatic authority and legal orrational authority are two different kinds of authority.17 Neither of these, norhis third kindtraditional authorityexists in a pure form, and any actualcombination of two or all of them is one of compromise, rather than oneof internal reciprocal relationship. The charismatic leader finds his authority'routinized' through the mechanisms specific to rational legal order because thiskind of rationality is all that is available to us. And rational legal order mustcompromise with charismatic authority because legal order by itself canno t settlethe perpetual conflicts which mark politics. Indeed, all that legal order can dois to make social life relatively stable by making it to a large extent certainand predictable as well as providing ruling elites with an effective means forpromulgating, implementing, and enforcing their policies. It is true that one ofthe marks of legal order is that the rulers are subject to law. But since the c ontentof the law is at their disposal, this cannot be, on Weber's view, an effectiveconstraint on power.

All that charismatic and legal authority have in common is that they botharise once tradition no longer has a hold on us, in the sense of providing anhabitual and substantive basis of value for all or most of the subjects of aparticular society. From now on value has to be consciously created and thenimposed. Charismatic authority is the source of its creation and legal authoritythe means of its imposition. But, given this, the issue no longer seems one of

" Weber, above n 9, vol 1, at 26 6- 71 .16 Compare W. Mommsen, Max Weber and G erman Pabacs, 1890-1920 (1984) with Beetham, M ax Weber an dthe Theory of Modem Politics, above n 9. Mo mm sen's view that Weber intended that charismatic authority shouldDump legal authority ii tome wh at tempered in his essay T h e A ntinomian S tructure of Ma x Weber's PoliticalThought1 , in (1983) 4 Current Penptawa in Social Theory 289. For a discussion of this issue, which takes as itsstarting point Weber's attempt to carve oat the sphere of the political from the subjectivism of modem culture,see L. Scaff, Fleeing the Iron Cage: Cultun, Polioa, and Modernity in the Thought of Max VCbber (1989 ) , ch 5." See Weber, above n 9, vol 1, ch3 , at 215-16.


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WINTER 1996 Hermann Heller and the Legitimacy of Legality 645balance between two kinds of authority, but one of charismatic authority sub-mitting to the routinization of legal authority only for so long as this seemsexpedient to the charismatic leader.18

In sum, Weber's collapse of legitimacy into belief in legality, seems, given hisunderstanding of legality, almost perforce driven to the conclusion that mightmakes right." What I call the Weberian problematic embraces those attemptsto work out the relationship between politics and law within the terms set byWeber's understanding of the relationship between politics and (positivisticallyconceived) law as one between two different kinds of authority.Notice that the relationship here is between politics and law, not betweenpolitical morality per sethe moral values that should govern political orderandlaw. The Weberian problematic is premised on the claim that there is no suchthing as true or universal political morality, merely various political ideologieswhich contend for dominance. Liberalism had been the major contender for thetitle of the true political morality and it was liberalism, to be su re, which foughtfor the establishment of rational legal authority. But the connection betweenliberalism and the rationality of legal order is both historically contingent andprecarious.An attempt that accepts these terms, whatever its substantive differences withWeber, is more or less willingly driven to conclude that might m akes right.20 N obetter illustration of the problematic exists than that offered by the theories oflaw and politics of Carl Schmitt and Hans Kelsen.Schmitt is not so much forced to embrace the thesis that might makes right;rather this is the starting point of his reflections on politics and law. The markof politics is for him the conflict between self-defined friends and enemies. Thisis especially true of the age in which we live, one characterized not by a universeof shared values but by a pluriverse of conflicting and irreconcilable ideologies.These conflicts cannot be contained or rationally decided. They can only bewon, which means either the annihilation of the enemy or his subjugation. Ineither case, what concludes victory within the territory of a nation state is theestablishment of substantive homogeneitya radical form of communitarianismin which no dissent or deviance is tolerated.21

18 Indeed, in the debates about the constitutional form of the Weimar Republic, Weber argued that the onlyway in which the legal order of Weimar could cope with the politics! conflict he anticipated would be by makingconstitutional tpace for a powerful executive president. The president would be elected by direct vote of thepeople, and he would have the explicit authority to act with more or less unfettered discretion when (as he sawit) the need arose. See Mommsen, M ax Weber and German Poiida, above n 16, ch 9, at 353. No tice drat thisproblem is directly paralleled by die difficulty in working out just how Weber envisioned the balance between thetwo ethics he o utlined at the end of his lecture on 'Po litics as a V ocation'the 'ethic of convictio n' and the 'e thicof responsibility'. See 'Politics as a \focation' in Gerth and Mills (ed s), above n 10, 77, at 12 7- 8. It is difficult,that is, to see how die ethic of responsibility can temper the ethic of conviction other than by talking in a ratheropaque, Nietzschean fashion about politicians 'taking responsibility for their own fate'. (Here I quote ScafT, aboven l o a t 1 8 5 . )" See , for exam ple, S. Wolin, 'Max Weber: Legitim ation. M eth od, and the Politics of Th eory ', first pub in(1981) 9 Pobdad Theory 401, reprinted in Horowitz and Maley (eds), above n 16, 287 at 306.2 0 As I point out in the text below, the tradition of Anglo-American legal positivism in this century cannot befitted in any simple way into the Weberian problematic.31 In this paragraph, and in what follows, I summarize the position put forward in Schmitt, The Concept of thePolitical, first pub 1932, trans by George Schwab (1976).


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646 Oxford Journal of Legal Studies V O L . 1 6Schmitt is sometimes accused of proposing an aesthetic of violenceonewhich glorifies lawless mortal struggle as the ultimate source of meaning. Whilethere is no do ub t d iat this aesthetic is expressed in his work, his attitude towards

politics, and hence towards law, is more complex. Schmitt in fact yearns for dieorder and security which Hobbes promised at die end of Leviathan.22 He believeswitii Hobbes diat diis condition can be achieved only by getting rid of politicswidiin die nation state. Where Hobbes went wrong, according to Schmitt, is inhis individualism. It is die individualistic moments in Leviathan which subvertHobbes's aim of providing die basis of die 'mutuall Relation between Protectionand O bedience'.23Those moments, says Schmitt, are expanded by liberal political philosophersuntil diey open up die terrain of civil society completely, allowing for a free

competition of individual conceptions of interest. But die freedom of diatcompetition is an ideological cloak which conceals die conflict between a fewpowerful interest groups, each seeking to capture die state in die service of itsown ends.Substantive homogeneity, once achieved, has die effect of displacing politicsfrom die internal life of a state to foreign relations between states, each widi itsversion of substantive homogeneity. In a deliberate echo of Hobbes's definitionof war as not 'actuall fighting; but ... die known disposition diereto', 24 Schmittdoes not find it necessary for the preservation of substantive homogeneity diatdiere exists an actual conflict between states. All diat one needs, he dunks, isdie potential of conflict between states. This potential is guaranteed by dieachievement of die substantive homogeneity in whose defence die subjects of aparticular state are prepared to die.

Schm itt never d isputes d ie value of legal order (as positivists conceive it ), bu the does dispute attempts to make it die basic value of a society. It cannot bebasic because its value is purely instrumentalit can serve only to secureand stabilize normal political order. And normality first and foremost requiressubstantive homogeneityridding die state of the internal political conflictswhich liberal individualism perpetuates.Given diis snapshot of Schmitt's position, it is difficult to contest JurgenHabermas's allegation diat 'If we are to judge Weber here and now, we cannotoverlook die fact diat Carl Schmitt was a "legitimate pupil" of Weber's'.25 It isof course true diat Weber would have criticized as a ghasdy and naive mistakebodi Schmitt's attitude towards liberalism and his belief diat modern societycould beradicallyhomogenized. But die question for Weber is from what vantage

aC. B. MacPherson (ed) , Hobbes, Leviathan (1985) at 728.2 3 Ibid. I explore this theme in detail in ' "Now the Machine Runs Itself: Carl Schmitt on Hobbes and Kelsen'(1994) 16 Cardoxo LR 1. For Scnmitt on Hobbes, see nil Dtr Ltmathan in dtr Siaaukkrt des Thomas Hobbes: Samund Ftklschlag tines pohaschtn Sym bols, first pub 1938 (19 82 ).M Hobbes, above n22 at 185-6." See O. Stammer (ed) , M ax Weber an d Sociology Today (1971) t 66.


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WINTER 1996 Hermann Heller and the Legitimacy of Legality 647point he would make this judgement, given his account of legitimacy andlegality."Kelsen, indeed, clearly saw that Schmitt's celebration of homogeneity and hisattitude towards liberalism and its political institutions spelt disaster.27 And Kelsenquite vigorously defended the institutions of liberal parliamentary democracy asnecessary elements of western civilization.28 But his own work in legal theory isexclusively devoted to working out the internal structure of legal order, on theassumption that Weber's account of legitimacy is correct.29The main difference between K elsen and Weber is that Kelsen's starting pointis not a social and historical claim about what legitimacy has come to mean formost people. Rather Kelsen starts with an allegedly scientific value which inheresin elaborating law in accordance with his doctrinethe Pure Theory of Law.Kelsen never quite says what this scientific value amounts to, nor why it shouldcount as a value. Most often it seems that it just the value which happens toinhere in legal order. At other times, it seems that this value has much to dowith Kelsen's avowed epistemological relativism, which finds in legal order avalue that is somehow beyond ideology. But at any rate, he thinks that if andonly if we take this value as our starting point, will we achieve a properunderstanding of law.30Kelsen maintains that proceeding in this way will produce the following pictureof legal order. Legal order is composed of a hierarchy of legal norms, w here thevalidity of any particular norm can be traced to its authorization by a higherorder norm, until we reach the most fundamental norm of all, the Grundnorm.The validity of the Grundnorm has simply to be assumed.31Kelsen also claims that this structure is a logical one in that it is free ofcontradiction. By this claim, he does not mean to imply that the content ofparticular norms can be deduced from higher order norms in a contradiction-free way. Rather his claim is that, in the event of a conflict or contradictionbetween two norms, there will always be a higher order norm which authorizessome legal authority or official to resolve the conflict. That is, it is not so muchthe content of valid legal decisions which is got from higher order norms, butthe authority to make a norm which deals with the case which has arisen. C on ten tis given by the will of the authority or official who is authorized to decide thatcase. In the case of the constitution or most basic positive norm of a particular

24 For an attentive account of Schmitt and Weber, ee G. Ulmen, PoHtitcher MtkratrL Eint Studu O btr MaxWeber und C art Schmut (1991). For a critique of Habermas's claim* and of Ulmen'i irudy, tee M. Eberl, DitLtgitimMt der Modem s: Kulturkriak und Htmchafukonzepuon bei Max Wtber wid tm Cart Schmut (1994). Eberi,however, does not addreu the significance of rhe fact thai Schmitt operates within the Weberian problematic,whatever the substantive differences between their positions on liberalism and homogeneity. I deal with theseiu ue s i t greater length in Th e Legitimacy of Legality*, a review article of Habermas, FaJuuitdt und Gtltung:BtttrOgt xw Disktmchtoru da Rxhts laid da danokraotchen Rschtmaan (1992), forthcoming in AnJav Jur Rtchts-und Soziatphflostphie and in (/nrtwriry qf Toronto LJ." S e e K e l i e n , "X a s o i l de r H Q t e r de r V e r f as s ung s em ?" ( 1 93 0- 1 ) 6 DUJusuc 5 7 6 ." S e e K e l s e n , Vom Warn und W en da- DtmokratU ( 2 n d e d n o f 1 9 2 9 , 1 9 8 2 ) .2 9 He re I re ly on K e l sen ' i c las s i c Rtint Rechalthn of 19 34 , t r ans by B . L hc he w s k i P au l s on and S . P au l s on as

Introduction to tht Pwbltms of Ltgal Theory ( 1 9 9 2 ) .3 0 Ibid at 1 -5 .3 1 I b i d a t 5 5 - 6 4 .


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648 Oxford Journal of Legal Studies VOL. 16legal order, there is no higher order norm which can grant authority to decideon its content. Its content is, Kelsen says, given by historical events like theenactment of a constitution by its founders.32

The upshot of Kelsen's Pure Theory of Law is, then, that legal order is noconstraint on political power, but simply its vehicle or instrument.33 Kelsensometimes shows signs of temptation away from this path.34 For example, hepresents his claim that the state is no more than a personification of the totalityof the rules of a particular legal order as simply a conceptual result of the PureTheory.3' But this claim is best interpreted in terms of his desire to have politicalpower dispersed within the rules of legal order until the point where the statedisappears into a system of impersonal rulesthe fulfilment of the liberal,political ideal of the rule of law presented as a conceptual necessity.36However, it is precisely Kelsen's commitment to purely conceptual argumentwhich precludes him from depicting the relationship between politics and legalorder differently from Weber or Schmitt. From the standpoint of law, that is, ofthe Pure Theory of law, politics is the irrational force to which the rationality oflaw is subject. Kelsen's submerged political ideal of FUhrerlosigkeit, a conditionof legal order such that there is no need for arbitrary political decision, makeslegal order potentially subject to any political ideology. Every state is, Kelsenoften asserts, a Rechtsstaat.37It is this depiction of the relationship between law and politics which, im-mediately after the Second World War, was the ground of Gustav Radbruch'saccusation that legal positivism made German jurists defenceless against Nazistatutes which had an arbitrary and criminal content.38 Radbruch explains thatpositivism offered no justification internal to law of the validity of law, restingcontent with the claim tha t a law is valid as long as the power exists to implementit.39 He himself asserts that the positive law, besides aiming to achieve the legalvalues of certainty and purposiveness, must also aim at the legal value of justice.If law does not so aim, it will at some point lose its legal quality.40

3 K e l s e n r e s i s t s e quat i ng the Gnmdnonn, w hos e va l i d i t y is p r e s u p p o s e d , w i t h the c ons t i t u t i on , w h i c h e x i s t s asa pos i t ive l egal Act. But the va l i d i t y of the c o n s t i t u t i o n has, l ike that of the Gnmdnorm, l i m p l y to be a s s u m e d .Se e i b i d at 57.

3 3 K e l s e n onc e s a i d t ha t be h i nd th e pos i t ive law one always f inds di e ' G o r g o n h e a d of p o w e r ' , VerCfftmUchungtnder Vmamgung dtr Detaschen Staaxsnchaltkm ( 1 9 2 6 ) 3 at 55; q u o t e d in H. O r d e r , RechuUhrt, Staatssoxiologit undDemokraaatuorie bei Hans Kthfn (2nd edn, 1990) at 246.

M I e xp l or e t h i s t he m e in detai l in my forthcoming book, Thu/ii Revenge: Carl Schma, Hans Kdsen, and HermannHeller in Wnmar.

3 5 Se e K e l s e n , a b o v e n 2 9 at 101.3 6 As S c h m i t t s a i d , 'Now the m ac hi ne r uns i t s e l f ("Die M ac hi ne l f l u f t je m von s e l bs t 1 ) ; Potiasch* Theobg ie: Vitr

Kapud zur Lehrt von der SouverOnu&t (2nd edn of 193 4, 19 90) at 62 . See * N o w me M a c h i n e R u n s Itself, a b o v en23.

3 7 See, for example, Kelsen, Der Soziolopscht und der jurismJu Staaabtgriff (2nd edn of 1928, 1981) at 253.M Radbruch, 'Gesetzliches Unrecht und ObergeserzHches Recht 1 (1946) in E. Wolf and H. P. Schneider (eds),

Radbruch, RechtsphOotopku (8th edn 1973) 339 at 344.3 9 Ibid at 344-5.* Ibid at 345-6. For a translation of the relevant passage, known in Germany as the Radbruch formula, tee S.

Paulson, 'Lon L. Fuller, Gustav Radbruch, and the "Positivist* These s' (1 99 4) 13 Law and Philosophy 313 at317.


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WINTER 1996 Hermann Heller and the Legitimacy of Legality 649It is important to note two features of this critique of legal positivism. Thefirst feature tells against it. It is that positivism is not a monolith. Radbruch'scritique fails to distinguish between the demo cratic, statutory positivism held by

Weimar public lawyers such as Gerhard Anschutz and Richard Thoma and theneo-Kantian positivism espoused by Kelsen.41 Such statutory positivists groundtheir positivism not in any scientific value; rather, they hold that official fidelityto the letter of statutes is politically valuable when the statutes are enacted by aproperly elected and accountable democratic assembly.It goes almost without saying, therefore, that Radbruch's critique cannot applyin any simple way to the tradition of Anglo-American legal positivism in thiscentury. This tradition, which includes H. L. A. Hart, Joseph Raz, Neil Mac-Cormick, Philip Soper, and Frederick Schauer, holds the positivist 'separationthesis', which asserts that there is no necessary connection between law andmorality. But it also holds that there are standards of sound moralitythestandards of liberal political moralityto which one should resort in order tojudge the content of positive law/2Rad bruch 's cr itique, in contrast, is of a position which holds both the separationthesis and that there are no standards of sound morality. The critique is, hence,not of legal positivism per se, but of legal positivism as manifested within theWeberian problematic. Nevertheless, I shall consider later in what way thecritique might apply to Anglo-American legal positivism as well as to democraticstatutory positivism.43The second feature of this critique tells in its favour. It is that it was notconfined to jurists who reacted against the horrors of Nazi Germany in theimmediate aftermath of the Allied victory in Europe. It was made well beforethe collapse of Weimar and in much more elaborate form by Herman Heller.44It cannot, therefore, be dismissed as the understandably naive reaction of thoseappalled by the revelation of the horrors of Nazi Germany. 45

4 1 P a u l s o n , i b i d , d e f e n d s l e g a l p o s i t i v i s m , o r (b e t t er p u t ) p o s i t i v i s m s , a g a i n s t R a d b r u c h ' i a c c u s a t i o n , o n e w h i c hw a s t a k e n u p b y L . F u l l e r i n ' P o s i t i v i s m a n d F i d e l i t y t o L a w A R e p l y t o P r o f e s s o r H a r t ' ( 1 9 5 7 - 8 ) 7 1 HarvardLR 6 3 0 . B u t I d o n o t t h in k h i s d e f e n c e s u c c e e d s o n c e o n e u n d e r s t a n d s R a d b r u c h ' s ( a n d F u l l e r' s ) g r o u n d f o rput t i n g f or w ar d var i ous t he s e s a s t o how l e ga l pos i t i v i s m pr e pa r e d d i e w a y for d i e N az i s e i z ur e o f po w e r and t he nw a s c om p l i c i t i n t he e s t ab l i s h m e nt o f a N a z i ' l e ga l or de r ' . A s I po i n t ou t in t he t e x t , t ha t gr oun d has t o do , n o tw i t h any j ud i c i a l a t t i t ude s w h i c h ar e d ir e c t pr o duc t s o f l e ga l pos i t i v i s m p e r s e , bu t w i t h t he W e b e r i an pr ob l e m at i cw h i c h c an e xp r e s s it s e l f i n pr ac t i c e i n se ve r a l c onf l i c ti ng t e n de n c i e s . I t m a y be t ha t P au l s on w ou l d n o t r e gar d th i sgr ou nd as f a l l ing w i t h i n t he pr ov i nc e o f l e ga l t he or y ( abo ve n 40 a t 35 7 ) ; bu t t ha t i s t o be g t he que s t i on , w i t hK e l s e n , o f w h at t he pr ope r s c op e o f le ga l t he or y i s . F or an i l l um i nat i n g d i s c us s i on o f t he s t a t u t or y pos i t i v i s m o fW e i m a r d e m o c r a t s , s e e P . C a l d w e l l , ' C o n s t i t u t i o n a l T h e o r y i n t h e W e i m a r R e p u b l i c : P o s i t i v is t s , A n t i - P o s i ti v i s t s,a n d t h e D e m o c r a t i c W e l fa r e S t a t e ' , P h D H i C o r n e l l U n i v e r si t y , 1 9 9 3 , c h s 6 a n d 7 , a n d ' L e g a l P o s i t i v i s m a n dW e i m a r D e m o c r a c y ' ( 1 9 9 4 ) 3 9 American Journal of Jurisprudent* 2 7 3 .

42 T he c l a s s i c s t a t e m e nt o f t h i s pos i t i on r e m ai ns H ar t , The Concept of Law ( 1 9 6 1 ) .4 5 F o r a R a dbr uc h i an c r i t i que o f bo t h t r ad i t i ons o f l e ga l pos i t i v i s m , s e c R . A l a y , Bepiff und Gtltung da Rtdus

( 2nd e dn , 1994) . A l e xy doe s no t addr e s s t he W e be r i an pr ob l e m at i c but e ngage s l e ga l pos i t i v i s m on t he t e r r a i n o fc o n c e p t u a l a n a l y s i s . O n m y v i e w , t h i s e n g a g e m e n t is b e s t m a d e w i t h i n t h e c o n t e x t o f t h e W e b e r i a n p r o b l e m a t i c .

4 4 H i i f ln t oh bo r e t c s t a t e m e nt o f d i i s pos i t i o n w as pub l i s he d i n 1 92 6 , " D i e R r i i i s de r S i aa t s l e hr e ' , in H e l l e r ,a b o v e n 1 , v o l 2 , 3 . F o r a s i m i la r c ri t iq u e i n F n g l k h , w h i c h w a s c o m p l e t e d i n 1 9 4 3 a n d d e e p l y i n f l u e n c e d b yHeller, see J. HalloweH, The Decline of Ubtrahsm as an Ideology: with particular reference to German poHocc-Aegalthought ( 1 9 7 1 ) .

4 5 F o r t h i s i n f l ue nt ia l de s c r i p t i on o f R adb r uc h ' s c r i t i que , s e e H ar t , ' P os i t i v i s m and t he Se p ar a t i on o f L a w andM o r a l s ' , f ir st p u b i n ( 1 9 5 7 - 8 ) 7 1 Harvard Law Review 5 9 3 , r e p r o d u c e d i n H a r t , Essays in Jurisprudence andPhilosophy ( 1 9 8 3 ) 4 9 a t 7 2 - 8 .


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650 Oxford Journal of Legal Studies VOL. 163 Heller's Position Sketched

The Weberian p roblem atic outlined above describes essentially what Heller tookto be the problem which legal and political theory had to overcome. Heller saidof Weber's understanding of legitimacy that it was simply false except in so faras it detected a 'degeneration in contemporary legal consciousness'.46 Hellertook that degeneration to am ount to two tendencies in legal and political thoughtwhich Schmitt and Kelsen exemplified. These tendencies, though in tensionwith each other, had a common origin and the same result.Th e common origin is in the view that since there can be no universal politicalmorality, we should give up the search for a basis in political morality for legaland political order. The first tendency which follows from this view is theKelsenian, neo-Kantian line, which seeks refuge in legal order. There it confinesitself largely to explicating the structure of that order on the assumption that itis given structure by a value whose status has to remain mysterious because thistendency eschews justification on the basis of a claim as to its moral soundness.The second, Schmittian, tendency is a kind of political existentialism, whichhopes for order on the basis of substantive values created initially through anact of irrational decision.47The two tendencies are clearly in tension with each other. The Kelseniantendency deals with political power by trying to make it disappear, thus ignoringwhat Heller calls the 'law-formative character of pow er'. The S chm ittian tendencydeals with power by glorifying it, thus ignoring what Heller calls the 'power-formative charac ter of law'.48 Hence, Heller says that these tendencies are m utualfalsifications of each other.49 Each ignores a vital part of reality which the otherupholds as the sum total of reality. Each invites the conquest of law by irrationalpower. And each has no resources to deny the inevitable claim of the powerfulthat their power is ethically justified.50Th e task H eller sets himself is to deal with these two tendencies by confrontingthe Weberian problematic head-on. He sets out to show not only that law andpower are intrinsically connected, that law is power-formative and that power islaw-formative, but that there is a third element which has to be taken intoaccount if one is to make sense of the reciprocal relationship of law and power.This third element is the element of ethics. For, as we shall see, Heller arguesthat the exercise of power through law requires legitimation. And by legitimationhe means not merely a successful assertion of the lightness of one's politicalideology, but a genuine moral basis for legitimacy.Heller maintains that those who work within what I have called the Weberianproblematic make the mistake of supposing that because ethical practices do not

** S L a t 3 3 1 .47 For a general discussion of thii tendency, as well as of die Neo-Kantianism to which it reacted, tee C. vonKrockow, Du Entvhrvhing: Ein* Ununuckung aba- Ernst JOjigcr, Carl Schmut, Martin Heidtggtr, first pub 1958(1990). \fan Krockow"! account of Kelsen and Schmitt owes much to Heller." SL at 393.** 'Die Knsis der Staatslehre', above n43, 13-15, at 14.50 SL at 331-2.


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W I N T E R 1996 Herm ann Heller and the Legitimacy of Legality 651afford us an absolutely certain or secure foundation that these provide us withnothing, and therefore should play no role in our understanding of law. Such amistake is, on his view, the same as that made in the declaration of the roof ofa house whose foundations are insecure that it will do without foundations andso stand by itself."However, with Weber,. Schmitt, and Kelsen, Heller supposes that the con-nection between liberalism and the rationality of legal order is an historicallycontingent one. As we shall see, he accepts the separation thesis in so far as itmaintains tha t there is no necessary connection between law and the set of moralvalues which one might standardly associate with liberalism. Indeed, he acceptsan even stronger version of the separation thesis, one which maintains that thereis no necessary connection between law and any particular set of moral values.

The relationship Heller seeks to establish betw een law and morality (or ethics,the term he generally prefers) is really not about a connection between law andanything in the sense that law must coincide with or correspond to a set ofvalues. Rather, the relationship is manifested in the structu re of legal order itself.Law necessarily constrains political power in such a way that the exercise ofpolitical power must not only claim to be ethically justified, but must alsosincerely seek to be justified.Notice that positivists of all stripes are willing to concede bodi that lawconstrains political power and that the powerful will claim that their exercise ofpower through law is justified. What they deny is that the constraints arenecessarily moral or ethical ones and , hen ce, that there is any presumptive reasonto believe the claims of the powerful. Heller, in contrast, believes that one canassert that the constraints are ethical while at the same time denying that thatthere is a presumptive reason to believe the claims of the powerful. He wants toresist both the 'moralization' as well as the 'amoralizatdon' of law.52This is a complex position. It requires elaboration of the idea of an ethicalfoundation to law which has content, though one which is not prescribed by anyparticular philosophy or ideology. Indeed, it is part of his position that just aslaw requires an ethical foundation, so that foundation requires law in order forits content to be manifested. That is, the claim is not just that law, in the senseof positive law, permits us to make ethical rules enforceable. His claim is ratherthat it is law which makes it at all possible to pro duce ethical rules. O n H eller'sunderstanding of ethics, the content of ethical rules can and should be differentaccording to time, place, and politics. The content of ethical rules is, in otherwords, relative to culture, but that does not, he thinks, commit his position tothe kind of relativism which says that ethics is just a matter of what the peopleof a particular culture happen to believe. For this latter kind of relativismpresupposes exacdy the Weberian account of legitimacy which Heller rejects." 'Bemerkungen zur su it s- und rechtstheoretuchen Problematik der Gegen warf, f int pub 1929, in GeuanmtiuSchrifun, above n 1, vol 2, 249 at 269." SL at 303.


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6 5 2 Oxford Journal of Legal Studies VO L. 16In sum, for Heller law, political power, and ethics, have to be conceived interms of a dialectical relationship in which n o element can be reduc ed to anoth er,bu t in which all stand in reciprocal relationship. Th is relationship exists primarily

between what Heller calls the ethical ' fundamental principles of law' and therules of positive law. The idea of law has to be established by 'relativizing thepositive law to suprapositive, logical and ethical, fundamental principles of law[R ech t sg mn d sa tze ] ' . "

4 Heller on LegitimacyO ne of the m ore puzzling claims He ller makes in his Staatslehre occurs just afterhis critique of Weber's understanding of legitimacy. He says, 'The state is justifiedin so far as it exh ibits, at a pa rtic ula r level of dev elo pm ent , the organ izationnecessary to secure the law'.54 But he immediately qualifies this seeminglyauthoritarian claim by saying, ' In the first place we understand by law here thefundamental principles of law which are foundational of positive law.. . . Theindividual law receives all its obligatory force only from the superior, ethical,fundamental principle of law' ." Hence, Heller is not merely saying that a stateis justified as long as it puts in place an effective organization. For, when theissue is the legitimacy of legal order, law has to be understood primarily in termsof the ethical fundamental principles of law.

Now this qualification might seem to make Heller into some kind of naturallaw theorist, one who wishes to say that the law fails to be law unless it meetssome suprapositive set of ethical standards. But Heller immediately adds asecond qualification to the first. The fundamental principles of law, he says,aspire to social validity and that requires that they are manifested by the decisionof what he calls an 'authoritarian power' ; by this he means a legal authoritywhich 'pronounces upon and implements that which is supposed to be r ight ina concrete situation' .5 6What then does Heller mean by the claim that the 'state is justified in so faras it exhibits, at a particular level of development, the organization necessary to

secure the law'? For Heller, the state is the 'efficacious, decision unit' for aparticular territory.57 It is the organization which is equipped to make final andeffective decisions on any matte r which requires a resolution for the m ain tena nceof social co-operation between all the inhabitants of the territory. In order tofulfil this role, the organization must be superior to any other, that is, it mustbe sovereign.58Here we have to make a dis t inct ion between co-ordinat ion and co-operat ionwhich Heller 's legal philosophy clearly presupposes, although he does not draw

u SL at 332.55 Ibid.54 SL at 332-3; moreover, he stresses that more than one interpretation is always pouiblc within that situation.57 SL at 339." SL at 358.


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W I N T E R 1996 Hermann Heller and the Legitimacy of Legality 653it in so many words. The state arises to meet the twin needs of modern sociallife. First, there is the need for social co-ordination in order to solve problemsof increasing social differentiation and hence complexity. Secondly, there is theneed which arises from what is termed in contemporary political deba te 'the factof pluralism'.59 It is the need for co-operation between individuals and groupswho, despite their different views about the good, share a common fate becausethey live within the same territory.The second need raises more urgently the problem of legitimacy. The statemeets it by making a final decision on the terms of co-operation in dispute butthere is a problem of legitimacy here. For Heller the state as an organization isjustified or legitimate just because without it social co-operation could not bemaintained. But no decision on social co-operation can be uncontroversial.

Tha t the state is necessary supplies its justification. But it is important to havein mind throughout what follows that the necessity is for an organization capableof securing co-operation and not mere co-ordination. Heller is more than awarethat one can attempt to explain the state purely in terms of its co-ordinatoryrolesecuring the compliance of legal subjects with the commands of thepowerful. O n such an explanation, the hallmark of law becomes the law'seffectiveness through sanctions which override the contrary will of dissenters;and this emphasis on co-ordination through coercion is, he holds, a positivistmistake.60 Co-operation is different from co-ordination in that it requires thatdissenters, however much they disagree with the final decision, neverthelessregard themselves as bound by the state's decisions.Heller agrees with Weber and Schmitt that politics is inherently conflictual.But unlike them, he does not think that the nature of politics in the modernstate is given by conflict so that, as Schmitt asserts, politics becomes conceivedas about the way in which its participants define their friends and enemies.Schm itt, note, does not shy from the implications of this assertion. He is explicitmat the 'real meaning', the 'essence', of this distinction is that it 'departs fromand preserves the real possibility of physical killing'.61

Heller adopts the opposite stance. Politics for him is conflict but a conflictwhose precondition is the renunciation of physical force as the m eans for settlingdisputes. The political is the struggle between conflicting parties to influence ordetermine the terms of social co-operation. And that requires in turn that d isputesare settled on a basis which justifies a description of the state's decisions assecuring co-operation and not mere co-ordination.62Effective decisions of the state organization are necessary if there is to be socialco-operation. But, Heller argues, it is also necessary that those decisions beexpressed in legal form, where form is no t understood as merely technicallawas the technique of making the commands of the powerful known to legal

" John RwU, Political Liberalism (1993) .60 SL at 376-7.61 Schm itt, above n 21 at 33 . (I have am ended the translation slightly.)" SL at 313 - 14 .


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654 Oxford Journal of Legal Studies VO L.16subjects. He makes the startling claim that legal form presupposes the ability tomake a distinction between the just and the unjust. This ability, Heller notes, isindeed one to which the powerful at least pay lip service, since they always claimthat their decisions are ethically justified.63 The crucial question for him is, ofcourse, how the distinction is par t of the structure of law itself such that it makesa difference to the exercise of power through law.

Heller thought that an important insight in answering this question is to befound in Spinoza's maximoboedientia facit imperantem'obedience makes theruler'.64 The insight for Heller is that state pow er can never be a mere projectionof will from the powerful to those subject to them, from ruler to ruled. O nHeller's view, political power is a relational resource which cannot be monopolizedby any one group.Som e of Heller's most difficult pages are devoted to this topic.65 Their argumentcan be reconstructed as follows. State power or successfully organized politicalpower cannot be understood as the monopoly of the most powerful. The stateorganization consists of relations between the different groups whose activitiesconstitute it, since it has to be brought into being and maintained in existenceby the deliberate activity of individuals. Th ese individuals include bo th the mostand the least powerful among those subject to the state.But the state cannot be reduced to the interactions between such individuals,or to any group of individuals in particular, for example, as in crude Marxistthought, the bourgeoisie. For the relations between such groups and the in-dividuals within them are made possible in the first place by the state.A useful analogy, perhaps, is that of a game.6* Even those who set out toinvent a game will find, first, tha t the idea of playing a gam e, and then the detailsof the particular game which results, have a status apart from their activity ofplaying the game. For it is the game th at m akes tha t activity possible. The powerof the state can be monopolized no more than one could have a game whereone player had the power to make up the rules on the spur of the moment.Political power can, then, never be power over the state since by definition it ispower won and exercised vnthin the state organization.67Heller thu s says that even the m ost autocratic kind of ruler, the most absolutistof modern dictators, will find that, whatever his ambitions, not all power can beunited in his person. He will have to exercise that power through the state,which means sharing it with his bureaucracy and all his other organs of rule.And he will also have to count on the willing support of a certain number of

" SL at 325-39.4 4 'Polhischc Demokratie und soziale Homogenitat*, f irst pub 1926, in Gtsammtbt Schriften, above n 1, vol 2,421 at 426.65 SL at 339-J9." Her e I rely loosely on H ani-Geor g Gadamer** exploration of 'Play as the du e to ontological e xplanation ';

see Gadamer, Thah and Mtthod (1981 ; trans of the German 2n d edn of 1965) at 91-1 08 . Heller's argument forsomething which has to be brought into existence and maintained as such by human activity, but whose existenceis ontologically prior in mat it makes it possible to engage in that activity, has, I believe, much in common withthis exploration, in particular, in Heller's application of the idea of organization to the topic of constitutionalism;see SL a t 3 8 5 - 9 5 .67 SLat351.


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WINTER 1996 Hermann Heller and the Legitimacy ofLegality 655organizations and groups if he is to secure the obedience that makes his ruleviable. Hence, Heller claims that Spinoza's maxim applies even to the rule ofsuch a ruler.68

Heller also maintains that law is the means any ruler must adopt in orderpublicly to manifest his will. He approves an understanding of politics as the artof 'transforming social tendencies into legal form'.69 And since the autocraticruler will, among other things, promulgate laws, it might seem that H eller cannotwithhold the title of Rechtsstaat, the state bound by the rule of law, from anautocratic state. Nevertheless, he pours scorn on Kelsen's claim that every stateis a Rechtsstaat; this claim, he says, will be the 'best pacemaker for dictatorsh ip'.70Heller emphasizes that the necessity for a state-controlled social order issomething that is established prior to any particular conception of legal ornormative order. And for him the Rechtsstaat is a very particular form of legaland normative order. What distinguishes the Rechtsstaat from absolutist formsof state is that it exhibits a division of powers between legislature, executive, andjudiciary, which equips the bond between ruler and ruled with legal sanctions.71And it is these sanctions which operationalize what Heller calls the 'polemicalprinciple' of democracy or of the sovereignty of the people. That principle isthat power in a democracy should go from bottom to topall power resides inthe people. The Rechtsstaat institutionalizes that principle by requiring that lawbe m ade by elected representatives, whose accountability to the people is legallyensured, and that same law must be implemented and interpreted by officialsand judges who are similarly accountable to the law.72That this principle is a polemical one has, I think, to be understood in tworespects. First, it opposes directly the autocratic principle which seeks, as far aspossible, to unite all power in the hands of the ruler. Secondly, it points to theinevitable and sometimes very large gap in any Rechtsstaat between ideal andreality. In this second respect, the importance of its being seen as a polemicalprinciple is that the fact that it is institutionalized should require a constantattempt to narrow the gap unde r the impulse of interpretations of the principle.It is this idea of the institutionalization of a polemical principle of people'ssovereignty that distinguishes Heller from democratic statutory positivism. For,as I shall now show, its institutionalization goes beyond th e positivist requirem entof judicial fidelity to statutes. It also requires dem ocratic accountability ensuredby what I shall call the democratization of reason.

5 The Democratization of ReasonO n Heller's view, as soon as absolutist or autocratic rulers became at all subjectto the law, so that they could no longer be said to be entirely unconstrained by

* 'Politische Demokratie', above n 64 at 426.K S L a t 3 1 3 .7 0 'Europa und der Fascismus', fim pub 1931, in Oaammtkt Sdtriftm, above n 1, vol 2, 463 at 529." 'Politische De mo kn tie', above n 64 at 42 6; SL at 359-61.12 Ibid.


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656 Oxford Journal ofLegal Studies VOL. 16law, the mechanism is in place which can be developed into the legal apparatusof the Rechtsstaat. In such a situation, rulers must be able to justify their actionsby referring to some legal warrant and that is the beginning of what one mightthink of as political, even democratic, accountability.

It makes sense to see this as the beginning of democratic accountability fortwo connected reasons. First, the subjection of rulers to the law is part ofthe historical development which includes the establishment of representativeassemblies with some role to play in legislation. Secondly, once the idea isdislodged that the authority of rulers and their law is divine, rulers must findsome other mode of justification. Under the influence of thinkers like Bodin andHobbes, this results in the search for an immanent and rational justification forpolitical authority.73 Even if, as in Hobbes, the rational justification is one whichis for absolutist rule and hostile to democracy, what is important is its appeal tothe reason of its audience. Such an appeal sets in motion a process which makesit difficult to resist what we can think of as the democratization of reason.

In this development, classical liberalism plays an important role. It bothrelentlessly requires the subjection of political power to the law enacted by arepresentative assembly and it tries to halt the democratization of reason bysetting the limits of reason in the class of those who possess both property andeducation.74 But because these limits are out of step with the idea of individualequality, liberalism cannot stop this process culminating in the Rousseauian ideathat the will of the actual majority must be endorsed, rationally speaking, as thewill of each.

And this process is not just a matter of formally extending the franchise untilit is universally held. The idea that political power must appeal to the reason ofeach individual is generally founded in some conception of the equality of eachindividual reasoner. And this foundation leads to social division rather than co-operation in the face of large discrepancies in social and material equality. Helleris not the kind of liberal who believes that liberalism must compromise with theprinciple of people's sovereignty if it is to survive. He is first and foremost asocial democrat who believes that the individual rights discovered by liberalismmust be an integral part of social democracy. If the process of the democratizationof reason is to avoid self-destructing, it must turn the formal Rechtsstaat ofliberalism into the material or social Rechtsstaat. This is a state which strives toattain a degree of 'social homogeneity' for all the citizens of a particular state.7'

It is only when such a degree of social homogeneity is achieved, argues Heller,that one has in place the basis for governing society through the institutions ofdemocratic parliamentarianism. What makes parliamentary debate the ap-propriate way of deciding on the content of legislation is not the liberal beliefthat rational debate, by which liberals mean debate between liberals, produces

" SL at 108-9 .u As I shall suggest below, this holding attempt has its echo in contemporary political philosophy as liberalthinkers such as Rawls and Dworkin seek to have liberal political philosophy determine the limits of reason.75 'Polrtijche Demokrit ie' , above n 64.


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WINTER 1996 Hermann Heller and the Legitimacy of Legality 657truth. It is the social basis of the debate which makes it possible for the debateto reach a highly contested but legitimate conclusion. Heller argues againstRousseau that what makes the conclusion legitimate is not any fiction that thewill of each has been rationally transsubstantiated into one identical with thatof the majority. Rather it is that while a majority asserts its view, those who havelost still think that they have had fair play.76Further, this is a debate between the representatives of citizens who are notthe passive legal subjects of liberal thought, subjects who require of the stateonly tha t it provides them with secure and stable legal bou ndaries to their privatelives. Citizens, for Heller, are those who 'themselves arrange their social andpolitical order' at the same time as they live with the order that is in factproduced.77

Thu s far I have sketched two different aspects of the democratization of reasondetected by Heller. The first culminates in universal franchise. The secondrequires attention to social inequality as an impediment to what can be taken asthe rationale for the process of democratizationthe vision of the citizen asauthor of his or her social and political order. These two aspects are givenexpression in the legal order of the Rechtsstaat in a way which provides the basisfor Heller's claim about the legitimacy of legal order. In order to understandthis basis, one has to take into account yet another aspect of the democratizationof reason, what we can term its sociological aspect.Recall that positivists recognize both that rulers will claim that their rule isjustified and that this claim must meet some recognition among the generalpopulation if their rule is to be at all stable. But this is merely a sociologicalphenom enon for positivists, by which they m ean it has no bearing on the debateabout the nature of law. Indeed, positivists add to their theories of law theobservation that for any legal system to exist there m ust be sufficient compliancewith its laws to give it some degree of efficacy. But they then hasten to say thatsince compliance can be produced just as well through threats and sanctions asthrough the belief that a legal order is legitimate, the ethical justification of thelaw need not figure in an account of its validity. Hence the positivists' focus onthe law's co-ordinatory function rather than on its role in bringing about co-operation and their understanding of legitimacy as belief in legitimacy, whichmay or may nor be widespread and may or may not be justified. 78Heller argues that the sociological basis for the legitimation of legal order hasto figure in an accoun t of the validity of law. His cen tral insight here is contained7 6 I b i d a t 42 7 .7 7 'We cal l r it turu the individu al* w h o them se lv es arrange the ir soc ia l an d pol i t i ca l order . Ou r re sp ec t for the

w a y o f li fe o f c i t iz e ns h i p i s e ve r pr opor t i on at e t o t he m ot i ve s f or t h i s or de r i ng . W e m a y no t r e f use t h i s r e s pe c t t ot he c it i z e n w h o c le ar l y s e e s t he soc i a l and h i st or i c a l r t l a t r w t y o f i i m o i n and h t w and ne v e r t he l e s s s ubj e c t s h l w w l ft o t h e m , b o c a u M h e k n o w s th e h u m a n a ll t o o h u m a n n a t u r e o f t h e c o m m o n l if e o f h u m a n b e i n g s . ' S e e ' B u r g e run d B ou r ge o i s ' , f ir st pu b 1 93 2 , i n Gaammdu Sckriftat, a b o v e n 1 , v o l 2 , 6 2 5 a t 6 2 8 .

7 1 P os i t i v i s t s w ho w or k w i t h i n t he W e be r i an p r ob l e m a t i c ho l d t ha t i f l e ga l s ubj e c t s be l i e v e t he law t o be l e g i t i m at e ,t he n i t i s . A n g l o - A m e r i c a n pos i t i v i s t s ho l d t ha t w h at e ve r t he be l i e f i n l e g i ti m ac y , ac t ua l l e g i t i m ac y de p e nd s o nwhether the law meet s cr i t er ia of sound moral i ty . What they share i s the c laim that as far as the val idi ty of law i sc on c e r n e d , a l l t ha t c ou nt s f or l e g i t i m ac y , and t h e n i n a w h o l l y e x t r i ns i c w ay , i s be l i e f i n l e g i t i m ac y .


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658 Oxford Journa l of Legal Studies V O L . 1 6in his claim that what might appear from above to rulers as an order that theywish to issue through the legal system must appear from below as a norm if itis to succeed. That is, it must appear from below as a sound standard ofconduct.7 'Now it might be a very limited audience for which the rulers' orders have thequality of norms, the quality of being not mere demands for compliance backedby sanctions but standards with which there should be compliance. But it m attersa great deal that there must be some public to which the law is addressed,some public which believes that the law is legitimate. And the process of thedemocratization of reason progressively enlarges that public until it includes allthose who are embraced in a universal franchise. The law has now to seemjustified to this universal public, one which will be often be deeply divided onthe issue with which the particular law deals.

He ller's view of the relationship between political dieory and p ractice comm itshim to the position that this process will happen only if political struggles makeit happen. But he also wishes to emphasize that theory, in this case a theorybased on the equality of individual reasoners, opens up the conceptual space fora certain practical course of action.80Heller does not suppose that all particular laws are generally justified. Anyparticular law will evince a range of motives for compliance, from endorsementbecause it seems morally sound to compliance because of the fear of sanctions.81But once the process of democratization is underway, it is important diat anylaw must strive for as wide a legitimation as possible. And the legitimation mustbe based on reasons which provide a sound basis for the claim of the legitimacyof law which the rulers inevitably m ake. Th at is, the claim for ethical justificationmust appeal to a basis which is not only sound but which is considered to besound by its audience.

The kind of basis makes a difference to the nature of law. In an era ofmonarchical absolutism, or in a successful dicta torsh ip, the basis for the legitimacythe monarch or the dictator enjoys can plausibly be said to be 'belief in hislegitimacy'. Legal subjects believe either in the monarch's claim to rule by divinegrace or they believe in the dictator. But under democratic conditions, belief isnot the basis of legitimacy. Rather, belief amounts to a conclusion that the claimof the law to be legitimate is justified by the reasonable basis of the claim. 82

As I interpret Heller, this basis is not so much die basis of any particular law,but the basis of the legal order as a whole. The issue is not so much for himone about the legitimacy of law as about the legitimacy of legal order or legality.And this shift in emphasis makes citizens with a right of resistance, and not thepassive legal subject, central to Heller's conception of legal order.

SL at 379.m SL at 154-5.11 SL at 346-7 .See Beetham, Ltgasmanon of Pomr, above n 9, for extensive argument on the topic o f legitimacy and belief.


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W I N T E R 1996 Hermann Heller and the Legitimacy of Legality 6596 The C itizen and the Right of Resistance

For Heller, the basis of legal order is in part a social one, the citizen's sense ofboth the actual level of social equality reached and the commitment of thesociety to social equality. It is in part a political one , the sense of whether or n otpolitics makes room for citizens to be authors of their own political and socialorder, so that citizens are able to influence both legislation and law reform.In the terms Heller uses to describe the citizen, this sense is one of thecontingency of the concrete order established by law. But it is a sense ofcontingency far different than that captured by the disillusioned vocabulary ofdisenchantment. It is contingent in that it is the result of politics, but of politicscondu cted w ithin democratic institutions and thus subject to change. This senseof contingency, that is, requires the institutions of the democratic Rechtsstaat asintrinsic elements of legal order. It requires, as I have already suggested, theinstitution of the polemical principle of democracy. It is one which makes atouchstone of the validity of law the democratic process of its production, itsimplementation and execution through a system of the division of powers, andits openness to reform in the light of citizens' experience of it.Heller does not hold that this basis is a guarantee of the ethical justificationfor particular laws, whether one or many of the laws of a legal order. Theguarantee of ethical justification cann ot be given by institutions or co nstitution s,but only by what he calls the individual 'legal conscience', which has an 'ethicalright of resistance' to laws it finds unjust.83Heller regards it as a necessary paradox of the democratic Rechtsstaat that theethical right of resistance of the legal conscience is something which has weightbut no legal recognition. This is a crucial point for him in the Staaulehre, butone most fraught with ambiguity.As I understand his assertions on this point, that the right is of the legalconscience tells us that it is an essential part of legal order. That the right is anethical and not legal one tells us that it, though an essential part of the legalorder, cannot be given legal expression in the sense of being asserted as part ofa defence in law. Note, however, that ethics and the law though contrasted here,and in a sense in conflict, are not distinct in the clean way which a positivistseparation thesis asserts. For, as we will shortly see, in issue are the ethicalfundamental principles of law. As Heller says generally of such contrasts, ethicsand law are only 'relative antitheses'.84The right of resistance cannot be given legal expression for the reason thatmodern legal orders have to aim to maximize certainty, and certainty requiresthat individuals not be given power to interpret the law for themselves or toenforce it as they see fit. For the sake of certainty, the law cannot permit as ananswer to a charge of lawbreaking that the lawbreaker found the law ethicallyrepugnant. But, Heller is keen to emphasize, legal certainty is not a value in

" SL at 336-9 .1 4 SZ. at 371.


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660 Oxford Journal of Legal Studies VO L.16itself. It has value because that the law establishes a relatively stable and certainframework for individual action is important for what he calls 'the individual asan ethical personality'.85

But, on Heller's view, it is equally important to the individual as an ethicalpersonality that the law which establishes that framework does not lead to the'disintegration' of what he calls the individual's 'state-formative power'.8* Bythis, he m eans the rights of citizenship as well as the right to determ ine th e goodfor oneself.87For H eller, the ideas of individual freedom and plan, by which he means state-established legal order, are, like the ideas of ethics and law, only 'relativeantitheses'.88 In other words, individual freedom is possible only under the ruleof law. But individual freedom means more than what we can think of as therights of private autonomythe traditional liberal rights of the individual todetermine his or her own good for herself.89 Individual freedom includes therights of public autonomythe rights of the citizen, acting in concert with othercitizens, to determine the content of the law under which all individuals are toexercise their freedom. Th e law mu st m ake bo th kinds of freedom possible, sinceboth are aspects of one's ethical personality.We can, therefore, explain Heller's view on the legitimacy of law as follows.It is only if the law aims at realizing ethical personality that it can be said to' bejustified or to have authority. When it does so aim, the way in which its aimsare concretized in the law has moral weight for the citizen who understands theduties of citizenship. But he or she must also keep in mind that it is part of theduties of citizenship to evaluate the concretized or positive law against anunderstanding of the ideal which the state should be serving. And if there is awide discrepancy between ethical ideal and actuality he or she is faced with whatHeller terms a tragic conflict of duties.This conflict is the 'necessary and untranscendable conflict between legalityand legal certainty'. It is necessary because within a 'vital' citizenry 'completeagreement can never rule over the content and application of valid fundamentallegal principles'. It is untranscendable 'because both the state and the individualare alive only in the relationship of tension in which positive law and the legalconscience find themselves'.90The conflict is, then, inevitable within legal order and yet unsolvable by legalorder. And it arises from the same sourceit is a conflict within the legalconscience of the citizen. That Heller calls it a tragic conflict must stem, I

15 SL at 336." I b i d .87 So much U clear from the text to which he refers in a footnoteH. J. Laski, A Grammar of Politics (1925)96. In the next two paragraphs, I bale my elaboration of Heller's point about state-formative power in part onLaslri's text.** SL at 389. For the importance of the idea of planning among Heller's generation of democratic socialists,see D. White, Lost Comrades: Socialists ojtiu Front Generation, 1915-1945 (1992) ." Com pare Habermas, above n 26, ch 3. In 'Legality and Legitimacy1, above n 26,1 argue that Heller's accountof these issues is in many respects superior to Habermas's. I also trace there some significant similarities betweenHeller and Fuller.K SL at 336.


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WINTER 1996 Hermann Heller and the Legitimacy ofLegality 661believe, from the combination of these features of inevitability and source. Tha tis, what m akes it tragic is that in the democratic Rechtsstaat citizens must accordmoral weight to the law even when they strongly disagree with it, because theymust see themselves as authors as well as subjects of the law."The gap between ethics and the law which this conflict reveals is not the gapof the positivist separation thesis which presupposes that ethical or moral validityand legal validity attach to different realms of value. Rather, it is the gap betweenthe ideal and the actuality of law which are in complementary relationship witheach other. The gap opens up because 'all realization of law remains imprisonedby the demonic element of power'.92It is important to see that for Heller this conflict inheres in the structure ofthe Rechtsstaat. But, as I shall now show, it does not thereby speak against thecoherence of the Rechtsstaat.

7 Ethical Fundamental Principles of LawThe coherence of the Rechtsstaat, its aspiration to be a gapless and contradictionfree system of laws, lies at the heart of what Heller calls juristic dogmaticstheinterpretation of the law within particular fields on the assumption that the lawforms a seamless whole. But that assumption is best seen, as I have suggested,as an aspiration. H eller is clear that coherence is an ideal which one can approachby successive approximations, but never in fact reach.

93It is also important to see that for Heller coherence is not just coherence ofpositive laws with each other, bu t w ith the fundam ental ethical principles of law.Positive law can and will violate these principles, thus establishing conflict withinthe law.94 The conflict on which he focuses between the ideal and the actualityof law arises when and only when it is meaningful to speak of the duties ofdemocratic citizenship. To the ex tent that one can see the beginnings of politicaland hence democratic accountability in the subjection of the ruler to law, itmakes sense to attach some moral weight to law even when it is unjust.95 But itis only in the democratic Rechtsstaat, where the law must perforce aim at justicein a way recognizable by its citizens, even if it falls far short in the opinion ofsome or many of them, that the conflict becomes a tragic one.However, despite this emphasis on the tragedy of the conflict, Heller doesnot wish to overdramatize it. For by its nature, the democratic Rechtsstaat is

" Compart Fuller, above n4 1 at 656." SL at 338.n SL at 380-1.M Heller, Dit Souverthtttdv Ein Baxrag atr Thtorit da Staaa- und VSUuntcka, first pub 192 7, in GaammtluSchrifun, vol 2, t t 197 -8, 20 1-2 ." 'Even where beyond the reach of legitimacy no thing other than the technical legal form of the process i imaintained, the naked legal form of unjust law creates certain constraints on power, certain limits on arbitrariness,and a certain protection for the norm subjects, in that the form compels the observance of certain of the mostuniversal fundamental principles of law and principles of interpretation. It therefore makes good sense even fromthe standpoint of the one who is thereby burdened, when he fights for the observation of an unjust law or anunjust international treaty.' SL at 201 - 2 .


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662 Oxford Journal of Legal Studies V O L .1 6distinguished by its provision of legal means to reform laws which citizens regardas unjust. The ethical right of resistance seems best understood as a conditionof the legitimacy of law, but one meant more to ensure that law is constandybrought into line with its own ideal than to provoke actual resistance.The right may be said to represent die ethical core of the polemical principleof democracy. Against the different ways in which Schmitt and Kelsen developHobbes's thesis diat audiority, meaning political power, and not moral or ethicaltruth is the mark of law, it seeks to reinstate the natural law idea diat moralsoundness is a mark of law.M But what it borrows from Hobbes against themetaphysics of die natural law tradition is the thought that justification is ahuman and immanent matter.Th is quality of moral soundness is the one recognized by citizens who maintaindieir right to evaluate each and every law at the same time as showing themselvesprepared to obey die law up until the point where it overreaches die reasonablelimits of die legal conscience. But diat point will not involve mere disagreementwith the law. It is die ediical right of resistance of legal consciencedie citizen'ssense that the ediical aims of legal order are being subverted.Such aims are expressed in die ediical fundamental principles of law. Theseare principles which are suprapositive in die sense of being beyond positive law.But they are not supraculturaldiey are principles which formulate the valuesembedded in our cultural practices which die Rechtsstaat institutionalizes.In addition, their suprapositivity is not of die kind which Hobbes supposes.Hobbes talks of 'die" laws of na ture ' as being beyond positive law.97 He alsosupposes diat dieir content is inaccessible to reason. All that reason can settleon is diat they should be given content by an audioritative source. Hence, dieircontent is widiin the absolute power of die political sovereign and die positivelaw becomes an exhaustive guide to diat content.98 Hobbes is die founder ofmore dian die legal positivism endorsed in different ways by Weber, Schmitt,and Kelsen. He is also the founder of die moral positivism which informs theWeberian problematic.99hi Heller's vision, by contrast, the ediical fundamental principles of law arepresupposed by positive law in a dynamic way which makes die principlesaccessible to reason. The principles are given content in die positive law by theprocess of democratic reason and reason is die criterion by which diat contentis elaborated and evaluated. There have to be moments of audioritative in-terpretation, debate stoppers where an exercise of political power is what endsdie debate.10 0 But each interpretation is audioritative only widiin the institutionalstructure of die democratic Rechtsstaat.

* For Schm itt, see my 'No w the Machine Ruin Io elF , above n 23 , and for Kelsen , see F. Gentile, 'Hobbes etKelsen. FJements pour une Lecture Croisee' (1982) 20 CaJatrs VSfndo Panto 3 7 9 ." Hobbes , above n2 2 , ch2 6 ." Ibid.91 For the term 'moral poshrvijt', see Hilary Putnam, 'Are Moral and Legal V tlucl M ade or Discovered?' (1 995)1 Lffal Theory 5 at 8, referring to an unpublished manuscript by Anat Bilctski.Heller sometimes calls these 'authoritarian' moments in order to emphasize the provisional finality of thesemom ents. See, for example, SmmeramtU, above n94 a t 201-2 .


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WINTER 1996 Herm ann Heller and the Legitimacy of Legality 66 3W hat then is the co ntent of these principles? O n Heller's view, this questionis wrongly posed if it is meant to elicit a list of timeless eth ical or m oral principles.His answer to the request for examples of such principles is to point to the

requirement of equality before the law, and its different interpretations, to thefundamental rights sections of written constitutions, to attempts in constitutionsto articulate distinctively ethical values which should inform, for example, familylife or the relationship between church and state, and to open-ended legalformulations like 'reasonableness' and 'good faith'.101The content of these principles cannot be given in the way the question seemsto require because content is to be found in the cultural practices of theinhab itants of a particular state. Th e principles are those values which the cultureregards as constitutional valuesas the legal foundation of social co-operation.As such, they make up the stock of values which is the 'material constitution inthe narrow sense '. If there is a written constitu tion , it will, in so far as it is possible,try to formulate the values of the material constitution in one document a 'formalconstitution'. And this document may try to rank the values by putting someon a list of basic rights out of the reach of simple parliam entary majorities.102For Heller the distinction between the formal constitution and the materialconstitution is not a hard and fast one, just as he thinks that the general distinctionbetween form and content in law is not hard and fast. But his thesis about formand content is quite different from Kelsen's view that law simply provides theform into which the powerful may pour any content they choose.While Heller does not think that there is a list of timeless ethical or moralfundamental principles of law, he also does not think that just any ideologicalcontent can be injected into the law of a democratic Rechtsstaat. His positionseems altogether contemporary in that it aims to undermine the dichotomybetween moral absolutism and an 'anything goes' kind of relativism. While hedid not live to present this aim in detail, he clearly saw the dem ocratic Rechtsstaatas the institutional expression of this position.For him, the Rechtsstaat is an organization or institutional structure whichseeks to realize the polemical principle of democracy. It seeks to make theexercise of political power accountable to the people by requiring justificationof exercises of such power to them. Exercises of power which, for example,trample on the rights of individuals or seek to escape the constraints of the legalorder of the democratic Rechtsstaat will violate the fundamental principles of lawfoundational of the Rechtsstaat. For that reason, such violations of the law, evenif they are couched positivistically speaking in the correct legal form, fail to havethe authority of law. Heller is clear that the organs of state might have to act inan emergency to uphold law, in the sense of ethical fundamental principles oflaw, in the face of positive law. He is also clear that legal interpretation is to beguided by more than the value of certainty whose interpretative assumption isthe dogmatic one that the legal order is a gap- and contradiction-free system of

101 SL at 369 - 71 .10 2 SL t 385-95.


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664 Oxford Journal of Legal Studies V O L .1 6positive laws. It also has to be guided by the judicial and general juristic senseof the ethical fundamental principles of law which those norms must aspire toconcretize.103

8 ConclusionWe have seen in this sketch of Heller's legal theory tha t Kelsen is his main targetfor legal critique, while Schmitt's political existentialism is his main politicaltarget. But H eller clearly did not think that these targets were d istinct. As I haveshown, he thought tha t each exemplified a tendency which grew ou t of the sameproblematicwhat I have called here the Weberian problematic-In seeing this, we can also see the solution to a puzzle which recent writingon W eimar legal theory has uncovered . This is the puzzle of why Kelsenian legalpositivism should have attracted so much critical notice when the principal legalpositivists of Weimar w ere democratic statutory positivists.104 Why should Heller,and for that matter Schmitt, have taken Kelsen's legal positivism to representthe 'dominant theory* of law?In my view, the answer has to do with Heller's and Schmitt's sense of theliberalism's uneasy relationship with democracy. In their view, the positivistunderstanding of legal order was first put together by Hobbes in order to servethe individual values which are the inspiration of his Leviathan. Hobbes was ananti-democrat. And so he merely placed his hope in the benevolence of theabsolutist rulers w hose law should be taken by legal subjects as definitive of theirmoral obligations.105This set the terms for the relationship of legal positivism with substantivepolitical values. Politics and law are seen as two distinct spheres of value, butthis has the result of making law, positivistically conceived, the mere instrum entof political ideology. This dichotomy persists into the work of dem ocratic statutorypositivists whose positivism is distinguished from Hobb es's only by their differenthopes for it. It also persists into the work of contemporary Anglo-American legalpositivists, despite their amendments to Austin's command theory of law whichare best explained as a response to the requirements of modern democracy.10*Kelsen's Pure Theory has the advantage over both democratic statutorypositivism and Anglo-American legal positivism of fully recognizing the need fora value basis for law internal to legal order. That is, Heller's focus on Kelsenwas justified because Kelsen alone found a value basis for a positivist theory oflaw, one which attempted to be both internal to law and appropriate fordemocracy.107

103 ib.d.104 Set Paulson, above n40, and CaldweU, above n41.105I explore Hobbes's relationship to Anglo-American legal positivism in 'Law and Public Reason' (1993) 38McGiU LJ 3 6 6 .106 S e e , for e x a m p l e , t h e di s c us s i o n in Roger Cot terrdl , 77w Politics of Juruprudma: A Critical Introduction tt>Legal Pttoiophy (19 89 ), ch 4 at 99 -1 00 . I explore this issue in T h e Legality of Legitimacy', above n 2 6 .Kdsen would of course have denied that there was any intrinsic link between the Pure Theory of law andtus understanding of democracy. For argument on this issue, see Truth i Revengt, above n 34.


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WINTER 1996 Hermann Heller and the Legitimacy of Legality 665However, because Kelsen worked within the Weberian problematic he couldnot make the connection with democracy overt. As we might say with the recentRawls, the value basis he found is 'freestanding'. It is, of course, freestanding in

a different way than Rawls's conception of political values that together makeup an 'overlapping consensus' abo ut the basics of political and legal order.108For R awls, these values are substantive but they stand free of comprehensivepositions or individual conceptions of the good life. While such positions perforceclaim truth for themselves if they enter the space of public reason or constitutionaldiscourse, the values which constitute that space claim only reasonableness. Butthe claim to reasonableness is far from modest, since it operates to exclude thetruth claims of comprehensive positions from the public, and requires them tocontest each other only within the space of the social. Rawls, like Hobb es, wantsto prevent the 'wormes' of the social from eating into the 'entrayles' of theState.10 9Kelsen, by contrast, makes no distinction between the public and the social.Indeed, his Pure Theory of law can be understood as showing just how perviousthe public, here identified with the order which law establishes, is (and shouldbe) to the social.Rawls and Kelsen can be seen as exemplifying two moments of a tensionwithin the liberal idea of law which Schmitt wishes to highlight. The rule of lawis said by liberals to have the virtue of leaving it to, and making it possible for,individuals to lead their lives as they see fit. But it appears on Kelsen's positivistconception that laws with any content can fit the criteria for the validity of lawwhich positivists propose. Liberals may try to deal with this problem as do Rawlsand Ronald Dworkin, that is, by proposing criteria of validity which have more(liberal) substance to them. But then they must also insist that these values placea priori limits on democratic legislation, which m eans that they expose a tensionbetween liberalism and democracy.

Heller's profound and enduring contribution to legal philosophy in this centuryis to have sketched a theory of law and state which attempts to make sense oflaw as a democratic enterprise. Heller, like the other socialists of the 'FrontGeneration', was a romantic.11 0 His romanticism took the form of placing a greatdeal of hope in law's potential for creating and sustaining a democracy. But hiswas a hard-headed romanticism. He emphasized frequently that law could playsuch a role only if there was the human will and energy available to developwhat he too

Hermann Heller_ the Legitimacy of Legality

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