Relativism in the Philosophy of Law
19 Pages Posted: 4 Mar 2019
Date Written: February 13, 2019
I consider in this chapter the writings of two prominent legal philosophers, Hans Kelsen and Gustav Radbruch. Kelsen espouses a version of meta-ethical relativism and maintains that democracy presupposes such relativism, because it means that what is right today may be wrong tomorrow, and that therefore those who are in the minority today, and who are therefore wrong, ought to have a chance to become – through the democratic procedure – the majority tomorrow and thus to be right. Radbruch, too, espouses a version of meta-ethical relativism and maintains that to determine the content of law one has to consider not only (formal) justice, but also purposiveness and legal certainty, that (formal) justice and legal certainty are absolute values, whereas expediency is only a relative value, and that the judge ought to give priority to legal certainty when there is a conflict between legal certainty and justice because there is no non-relative answer to the question, “What is right?”. I object to both Kelsen’s and Radbruch’s lines of argument, that although they appear to think otherwise, the ‘ought’ in their conclusions can be nothing more than a relative ‘ought’ and that therefore their relativisms are incoherent. I also suggest two topics for further research, namely, relativist accounts of first-order legal statements and of legal disagreement.
Keywords: Relativism, Kelsen, Radbruch, Tolerance, Leal Statements, Disagreement
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