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This article asks how to integrate value decisions – which are inevitable in the process of legal reasoning by academic lawyers as well as by legal practitioners – into a scientific theory of law. The common distinction between a cognitive interpretation of existing law on the one hand and a volitive invention of new law on the other hand excludes value decisions from scientific legal reasoning and understands those decisions as mere exercises of discretion by regarding them as consequences of extra-legal standards which each lawyer selects according to his political opinions. Contrary to that common distinction it is argued here that legal decisions especially in hard cases always and necessarily include value decisions. The understanding of value decisions as legal findings makes it necessary to expand the concept of law beyond positive law: A legal system has to be grounded on a non-positive root principle serving as a basic criterion for the critical assessment of positive law.
