Many a „person subject to the law“ is shocked when he hears the phrase „Justice? This is about the law! Justice can only be found in heaven!“

This phrase does not always have to be meant cynically - it can also have something to do with a legal theory (some say: legal philosophy) doctrine: legal positivism.

For a long time, the Faculty of Law at the University of Vienna was regarded as the centre of this legal positivism. More precisely, it was described as the cradle of the „Vienna School of Legal Theory“, a school that is only comparable to the „Vienna School of Medicine“ and the „Vienna School of Music“ in terms of its international standing. Its most famous representatives were Hans Kelsen (the creator of the Austrian Federal Constitutional Law) and Adolf Julius Merkl, more recently, in particular Robert Walter and Heinz Mayer.

What is it all about? Ever since the law has existed, those who are supposed to obey it have been asking themselves, Why they should obey it. So you are asking why the law applies: why do laws apply?

One of the tasks of jurisprudence has always been to demonstrate such a reason for validity. Only if a reason for validity is convincing and therefore socially recognised will a society voluntarily submit to the law. Only then does a legal system „function“.

For a long time, the reason for the validity of legal systems was justified transcendentally: Law originates from God (see, for example, the preamble to the Austrian constitution of 1 May 1934: „In the name of God, the Almighty, from whom all law emanates ...“), originates from nature or is a result of human reason.

It is to the credit of the great Austrian legal scholar Hans Kelsen, to have pointed out the lack of scientific recognisability of these reasons for validity. Since it is in the eye of the beholder what one believes in, what one perceives as natural or considers reasonable, the reasons for the validity of natural law doctrines cannot be verified intersubjectively; they are therefore not scientifically recognisable. We simply do not know what is „just“.

In contrast to the representatives of natural law, who thus assume absolute values as the basis for the validity of law, legal positivists attribute the validity of a legal system to a „basic norm“, the sole content of which is to declare all other norms of this legal system valid. They are well aware that this „basic norm“ is a pure assumption: The „basic norm“ therefore does not really exist! It is merely a vehicle that helps to describe the law established by the respective legislator (=positive law) as valid.

This may seem like a theoretical argument about the emperor's beard. Is it not irrelevant from where one derives the validity of a legal system?

No, it is not! The essential difference between the respective justifications of validity lies in the statement as to whether a certain legal norm should be followed or not. If the validity of a legal system is traced back to God, nature or reason - and therefore to absolute values - this means that every single norm of this legal system is „charged“ with the respective absolute value: anyone who breaks one of these norms (e.g. jaywalking) is violating a divine commandment or is acting unnaturally or unreasonably.

Legal positivists, on the other hand, know that the reason for the validity of „their“ legal system is a fiction - namely a merely imagined basic norm that only states that all other norms of this legal system apply. A legal positivist can therefore only describe a legal norm (Does the norm apply? What behaviour is ordered by this norm? What sanction is threatened if one does not comply with this order?); however, he can never tell a person subject to the law whether he will comply with a legal norm. shall. Scientifically, it is therefore only possible to say what law is, but not whether this law is also „just“. Legal positivism is therefore alien to the claim to the conclusion of law that is inherent in the doctrines of natural law. It is up to each individual to determine their own actions - in free self-determination and in accordance with their own conscience.

It is actually astonishing that such a radically individualistic legal doctrine could develop in a paternalistic welfare state like Austria, which is now characterised by a rampant sense of entitlement ....