Paradigms in Modern European Comparative Law: A History. By Balázs Fekete. [Oxford: Hart Publishing, 2021. xvi + 203 pp. Hardback £70.00. ISBN 978-1-50994-692-1.]

Abstract

that he is Napoleon? Since his claim sits so oddly with his circumstances, we hesitate to treat it as bearing its meaning upon its face. What exactly do the judges mean when they speak of rights and duties? Even if legal rights and duties may generally be viewed as a species of moral right or duty (as Raz claims), this may not be true within a legal system that has manifestly abandoned the pursuit of justice. Might not the obvious injustice of the law drain the vocabulary of its normal moral resonance, converting it into a purely technical language that applies the rules without any claim to justice or moral bindingness? If these interpretative issues could somehow be overcome, a further problem would remain. For, if “claims” can be ascribed to law on the basis of relatively narrow features, independently of the wider context within which those features exist, it is unlikely that any such claims could be regarded as integral to law’s nature. When depicted as depending exclusively upon relatively discrete features abstracted from a wider context, the claims of law come to seem superficial and contingent. Perhaps (as Christoph Kletzer has pointed out) any system of norms (such as the rules of a tennis club) could make the relevant claims, without this affecting the system’s nature in other respects. And, as Finnis has pointed out, a system resembling law in all other respects might choose to make no such claims. Consequently, it could be difficult to treat such claims as essential features of law’s nature. Law does not make claims. But the practices making up a legal order nevertheless express an idea: the idea of law. Those practices are oriented towards the idea of law in much the same way that the relationship of friendship is oriented towards the idea of friendship. Those who are friends value their friendship, and guide their conduct by respect for that value. When they no longer honour the value of friendship, they are no longer friends. Similarly, a system of governance that entirely abandons its concern with justice ceases to be a system of law. For legal thought must be guided by the idea of law, and that is an idea that is intimately bound to justice. In this imperfect world, the demands of legality and of justice may sometimes conflict. But, nevertheless, each is fully attainable only in conjunction with the other. Substantial departures from justice (falling outside the range of good faith moral disagreement but not amounting to a wholesale abandonment of justice as an aspiration) can seriously detract from legality. In such contexts, to honour the value of law, one must sometimes apply the Radbruch formula.