“Unlawful Law”: The Debate between Merkl and Sander within the Vienna School of Jurisprudence

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Every day, decisions of legal officials are criticised both in public and in professional circles, where they are declared to be ‘erroneous’ or ‘wrong’. This often means nothing other than that the criticised legal decisions were made unlawfully. It was precisely on the problem of ‘unlawful law’ that opinions were most widely divided in the tradition of the Vienna School of Jurisprudence around Hans Kelsen (1881–1973). The conceptualisation of this question formed the core of a controversy between two of his students: Adolf Julius Merkl (1890–1970) and Fritz Sander (1889–1939). This controversy, which took issue with the fallibility of law as a man-made tool and mobilised the entire Vienna School in the period from 1918 to 1930, contributed significantly to making the ‘Reine Rechtslehre’ what it eventually became. What was at stake was nothing less than the question of who decides on the lawfulness of a legal decision and what follows from it. While Merkl ascribed primacy to jurisprudence, Sander insisted on the primacy of legal procedure or legal practice. They thus marked the extreme points of a spectrum in which the perspectives of other members of the school can also be located. My work deals with this hitherto unexplored and virtually unknown controversy; it aims to offer a polemography – a legal-theoretical reconstruction of a school-immanent debate informed by the history of ideas and the intellectual history. It is based in part on previously unexplored archival material and claims to yield the following gains of knowledge:1. The polemography is rehashed as a strategy for the study of legal theories in general, as approaches can be more accurately grasped by observing competing models in collision mode.2. The text also offers an interactional history of the Vienna School, bringing fragments of the structure and facets of the discourse dynamics of this research network into a coherent narrative for the first time.3. The legal theories of Merkl and Sander are presented independently for the first time in an original form. Sander’s legal process theory, which has fallen into oblivion, is (re)discovered. Henceforth, the following shall apply: Without taking into account the contributions of Merkl and Sander, the Pure Theory of Law cannot be understood in the requisite depth.4. The plurality and diversity of approaches is expressed in the uncovering of fundamentally different views within the Vienna School: Starting from the same premises, quite different results can be achieved without leaving the ground of a Pure Theory of Law.5. By rediscovering alternative approaches to the daily problem of ‘unlawful law’, my work makes the Pure Theory of Law more accessible for today's legal-theoretical discussion; the primacy of jurisprudence as well as that of legal procedure are made usable as aconceptual scheme for further legal-theoretical research beyond the tradition of the Pure Theory of Law.