Unlawful Law? A Review of Rodrigo G. Cadore’s “Rechtswidriges Recht” (2024)

Abstract

Rechtswidriges Recht (2024), by Rodrigo G. Cadore, offers an in-depth analysis of the Vienna School grounded in the controversy between Adolf Julius Merkl and Fritz Sander concerning the correctness of legal decisions: Who, after all, determines whether these decisions are correct or erroneous, and with what consequences?. By employing the method of “polemography”, the author systematically reconstructs the debate, situating it within both the intellectual-historical context and the theoretical frameworks of the protagonists. The first part of the book examines the origins of the problem of “unlawful law” in Hans Kelsen’s thought and the internal dynamics of the Vienna School. The subsequent two parts focus on the theoretical core of the dispute: while Merkl assigns legal scholarship the role of identifying and correcting errors in the application of law, Sander, advancing a radical positivist position, affirms the primacy of legal practice, thereby rendering the notion of “error” articulated by either legal doctrine or legal theory irrelevant to the legal  process. The study also engages with contributions by other figures of the Vienna School, such as Elisabeth Ephrussi, Fritz Schreier, and Alf Ross, and analyses how the controversy influenced the later development of Kelsen’s theory, particularly his formulation of the “tacit alternative authorization” (Alternativermächtigung). Cadore does not advance an explicit normative position. The book stands out for its rigorous, detailed, and original reconstruction of the debate, establishing itself as one of the most comprehensive recent contributions to the international scholarship on the Vienna School.