Legality and the Legal Relation

• Date: 01 September 2020
• DOI: http://doi.org/10.1111/raju.12292
• Published date: 01 September 2020
• Author: Alexander Somek

© 2020 The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

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Ratio Juris. Vol. 33 No. 3 September 2020 (307–316)

Legality and the Legal Relation

ALEXANDER SOMEK*

Abstract. According to Immanuel Kant, legality means the quality of an action being merely

and simply in conformity with a law. The article defends the significance of this notion and

explains how it indicates the existence of a legal relation. The legal relation, in turn, is the result

of resolving an antinomy between the social and the substantive dimension of moral judgment.

1. Legality

The term legality can be used in at least two or three different ways. The best-known

Anglo-American usage originates from Lon Fuller’s reconstruction of the “inner” or

“internal” morality of law. In his view, the precepts of this morality are addressed to

people making it their business to “subject human conduct to the governance of rules.”

Fuller refers to these also as “principles of legality” (Fuller 1969, 197–8).1 They erect

some not quite determinate threshold that a standard or social practice has to meet in

order to count as law. Apparently, Anglo-American positivists have whittled down

this notion of “legality” to the point at which is means that some standard possesses

“the quality of being law,” a quality that is usually possessed by rules and decisions—

in their view, regardless of whether they abide by the precepts of Fuller’s internal

morality.

The term legality, however, can also stand for what it has meant ever since

Immanuel Kant introduced the notion to legal philosophy. In this understanding, le-

gality designates the quality of an action of being merely and simply in conformity

1 For a recent and most perceptive work on Fuller, see Rundle 2012. By contrast, American

diehard Hartians, such as Coleman and Shapiro, have altered “legality” into a property that can

be possessed by abstract entities. It is the property of being law. See Coleman 2001, 84; Shapiro

2011, 7. Legality means the quality of whatever belongs to the set of entities called “law.” The

major difference to Fuller’s understanding is that the property “legality” would also extend to

norms that fall short of the standards of the rule of law.

* The following text is based on a keynote lecture delivered in 2018 at the East Asian Conference

on Philosophy of Law in Hong Kong. The author would like to thank Scott Veitch for his generous

hospitality.