At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessary connections between law and morality and, second, normative reasons for including moral elements in the concept of law. While the conceptual argument alone is too limited to establish a sufficiently strong connection between law (...) and morality, and the normative argument alone fails to address the nature of law, the two arguments together support a nonpositivistic concept of law, toppling legal positivism qua comprehensive theory of law. (shrink)

This book analyses the general structure of constitutional rights reasoning under the German Basic Law. It deals with a wide range of problems common to all systems of constitutional rights review. In an extended introduction the translator argues for its applicability to the British Constitution, with particular reference to the Human Rights Act 1998.

Robert Alexy develops his influential theory of legal reasoning exploring the nature of legal argumentation and its relation to practical reasoning. In doing so he sheds light on fundamental questions of law and rationality, which are as crucial to practising lawyers and law students as they are to scholars of legal theory.

The argument of this article is that the dual-nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation (...) to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law. (shrink)

The central argument of this article turns on the dual‐nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual‐nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non‐positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non‐positivism) or, alternatively, is affected in no way at (...) all by moral defects or demerits (super‐inclusive legal non‐positivism). The dual nature of law is expressed, on the one hand, by the Radbruch formula, which says that extreme injustice is not law, and, on the other, by the correctness argument, which says that law's claim to correctness necessarily includes a claim to moral correctness. Thus, what the law is depends not only on social facts, but also on what the law ought to be. (shrink)

The article begins with an outline of the balancing construction as developed by the German Federal Constitutional court since the Lüth decision in 1958. It then takes up two objections to this approach raised by Jürgen Habermas. The first maintains that balancing is both irrational and a danger for rights, depriving them of their normative power. The second is that balancing takes one out of the realm of right and wrong, correctness and incorrectness, and justification, and, thus, out of the (...) realm of the law. The article attempts to counter these objections by showing that there exists a rational structure of balancing that can be made explicit by a “Law of Balancing” and a “Disproportionality Rule.” These rules show, first, that balancing is not a danger for rights but, on the contrary, a necessary means of lending them protection, and second, that balancing is not an alternative to argumentation but an indispensable form of rational practical discourse. (shrink)

There are two basic views concerning the relationship between constitutional rights and proportionality analysis. The first maintains that there exists a necessary connection between constitutional rights and proportionality, the second argues that the question of whether constitutional rights and proportionality are connected depends on what the framers of the constitution have actually decided, that is, on positive law. The first thesis may be termed ‘necessity thesis’, the second ‘contingency thesis’. According to the necessity thesis, the legitimacy of proportionality analysis is (...) a question of the nature of constitutional rights, according to the contingency thesis, it is a question of interpretation. The article defends the necessity thesis. | A previous version of this article was published in Chinese Yearbook of Constitutional Law, Vol. 2010, 221–235. (shrink)

The author's thesis is that there is a conceptually necessary connection between law and morality which means legal positivism must fail as a comprehensive theory. The substantiation of this thesis takes place within a conceptual framework which shows that there are at least 64 theses to be distinguished, concerning the relationship of law and morality. The basis for the author's argument in favour of a necessary connection, is formed by the thesis that individual legal norms and decisions as well as (...) whole legal systems necessarily make a claim to correctness. The explication of this claim within the frame of discourse theory shows that the law has a conceptually necessary, ideal dimension, which connects law with a procedural, universalistic morality. (shrink)

The article begins with an outline of the balancing construction as developed by the German Federal Constitutional court since the Lüth decision in 1958. It then takes up two objections to this approach raised by Jürgen Habermas. The first maintains that balancing is both irrational and a danger for rights, depriving them of their normative power. The second is that balancing takes one out of the realm of right and wrong, correctness and incorrectness, and justification, and, thus, out of the (...) realm of the law. The article attempts to counter these objections by showing that there exists a rational structure of balancing that can be made explicit by a “Law of Balancing” and a “Disproportionality Rule.” These rules show, first, that balancing is not a danger for rights but, on the contrary, a necessary means of lending them protection, and second, that balancing is not an alternative to argumentation but an indispensable form of rational practical discourse. (shrink)

The main idea or the concept of coherence can be expressed in the following way: The more the statements belonging to a given theory approximate a perfect supportive structure, the more coherent the theory. The degree of perfection of a supportive structure depends on the degree to which the following criteria of coherence are fulfilled: (1) the greatest possible number of supported statements belonging to the theory in question; (2) the greatest possible length of chains of reasons belonging to it; (...) (3) the greatest possible number of strongly supported statements belonging to the theory; (4) the greatest possible number of connections between various supportive chains belonging to the theory; (5) the greatest possible number of preference relations between various principles belonging to it; (6) the greatest possible number and complexity of reciprocal supportive relations between various statements belonging to the theory; (7) the greatest possible number of universal statements belonging to the theory; the greatest possible number of general concepts belonging to it; the highest possible degree of generality of concepts implemented within it; the greatest possible number of resemblances between concepts used within it; (8) the greatest possible number of conceptual cross‐connections between various theories; (9) the greatest possible number of cases covered by the theory; and (10) the greatest possible number of fields of life covered by the theory. (shrink)

The author's thesis is that human rights can be substantiated on the basis of discourse theory. The argument has two steps. The first step is the justification of the rules of discourse. The second step consists in the foundation of human rights.

The main thesis of this article is that Kant’s concept of law is a non-positivistic one, notwithstanding the fact that his legal philosophy includes very strong positivistic elements. My argument takes as its point of departure the distinction of three elements, around which the debate between positivism and non-positivism turns: first, authoritative issuance, second, social efficacy, and, third, moral correctness. All positivistic theories are confined to the first two elements. As soon as a necessary connection between these first two elements (...) and the third element, moral correctness, is established, the picture changes fundamentally. Positivism becomes non-positivism. There exist two kinds of connections between law and morality: classifying and qualifying connections. This distinction stems from different sorts of effects that moral defects give rise to. A classifying connection leads to the loss of legal validity, whereas a qualifying connection leads only to legal defectiveness. In Kant’s theory of law both connections are found. The qualifying connection is conspicuous throughout Kant’s theory of law, whereas the classifying connection, by contrast, is rare and well hidden. This will suffice to consider Kant as a representative of inclusive non-positivism. (shrink)

What is the relation between legal certainty and correctness? This question poses one of the perpetual problems of the theory and practice of law—and for this reason: The answer turns on the main question in legal philosophy, the question of the concept and the nature of law. Thus, in an initial step, I will briefly look at the concept and the nature of law. In a second step, I will attempt to explain what the concept and the nature of law, (...) thus understood, imply for the relation between legal certainty and correctness. Here three issues will be considered: first, the Radbruch formula as an answer to the problem of extreme injustice; second, the special case thesis, which claims that legal argumentation is a special case of general practical argumentation; and, third, the problem of the judicial development of the law. (shrink)

The author offers a sketch of his thesis that legal principles are optimization commands. He presents this thesis as an effort to capture the structure of weighing or balancing and to provide a basis for the principle of proportionality as it is applied in constitutional law. With this much in place, he then takes up some of the problems that have come to be associated with the optimization thesis. First, he examines the objection that there are no such things as (...) principles, but only different modes of the application of norms. Second, he discusses problems concerning the concept of an optimization command and the character of the "ought" contained in principles. He concludes that the distinction between commands to optimize and commands to be optimized is the best method for capturing the nature of principles. (shrink)

In the debate between positivism and non-positivism the argument from relativism plays a pivotal role. The argument from relativism, as put forward, for instance, by Hans Kelsen, says, first, that a necessary connection between law and morality presupposes the existence of absolute, objective, or necessary moral elements, and, second, that no such absolute, objective, or necessary moral elements exist. My reply to this is that absolute, objective, or necessary moral elements do exist, for human rights exist, and human rights exist (...) because they are justifiable. (shrink)

This article defends a non-positivist theory of law, that is, a theory that accepts the necessary connection between legal validity and moral correctness by reference to the work of John Finnis. It begins with the dual nature of law as comprising both a real or factual dimension and an ideal dimension. Important examples show that at least some kinds of moral defect can deprive law of validity from the perspective of a participant in the legal system. The nature of the (...) connection between moral defectiveness and legal defectiveness is specified in terms of three possibilities: exclusive non-positivism, in which all cases of moral defect render law invalid; inclusive non-positivism, in which moral defect renders law invalid in some cases; and super-inclusive non-positivism, in which legal validity is not affected by moral defect at all. The paper argues for inclusive non-positivism as exemplified by the Radbruch Formula, according to which extreme injustice is not law, and which strikes the right balance between the ideal and real dimensions of law, against John Finnis’s account, which can be seen as an example of super-inclusive non-positivism, although his most recent work has tended towards the inclusive version. (shrink)

In this article the author adduces a non‐positivist argument for a necessary connection between law and morality; the argument is based on the claim to correctness, and it is directed to an attack stemming from Eugenio Bulygin. The heart of the controversy is the claim to correctness. The author first attempts to show that there are good reasons for maintaining that law necessarily raises a claim to correctness. He argues, second, for the thesis that this claim has moral implications. Finally, (...) he attempts to refute Bulygin's objection that the claim‐based argument for non‐positivism boils down to contradiction and triviality. (shrink)

Philosophy is general and systematic reflection about what there is, what ought to be done or is good, and how knowledge about both is possible. Legal philosophy raises these questions with respect to the law. In so doing, legal philosophy is engaged in reasoning about the nature of law. The arguments addressed to the question of the nature of law revolve around three problems. The first problem addresses the question: In what kinds of entities does the law consist, and how (...) are these entities connected such that they form the overarching entity we call “law”? The answer is that law consists of norms as meaning contents which form a normative system. The second problem addresses the question of how norms as meaning contents are connected with the real world. This connection can be grasped by means of the concepts of authoritative issuance and social efficacy. The latter includes the concept of coercion or force. The third problem addresses the correctness or legitimacy of law, and, by this, the relationship between law and morality. To ask about the nature of law is to ask about necessary relations between the concepts of normative meaning, authoritative issuance as well as social efficacy, and correctness of content. (shrink)

Contemporary discussions about practical reason or practical rationality invoke four competing views which can be named as follows by reference to their historical models: Aristotelian, Hobbesian, Kantian and Nietzschean. The subject-matter of this article is a defence of the Kantian conception of practical rationality in the interpretation of discourse theory. At the heart, lies the justification and the application of the rules of discourse. An argument consisting of three parts is pre sented to justify the rules of discourse. The three (...) parts are as follows: a transcen dental-pragmatic argument; an argument which takes account of the maximisation of individual utility and an empirical premise about an interest in correctness. Within the framework of the problem of application, the article outlines a justification of human rights and of the basic institutions of the democratic constitutional state on the basis of discourse theory. (shrink)

The author outlines his thesis that legal discourse is a special case of general practical discourse (Sonderfallthese) and develops it as an attempt to cover both the authoritative, institutional, or real and free, discursive, or ideal dimension of legal reasoning. On this basis, he examines the objections raised by Habermas (1996) to the special case thesis. First, he discusses the reduction of general practical discourse to moral discourses (genus proximum problem) holding that the former is a combination of moral, ethical, (...) and pragmatic arguments within the priority of just; second, he examines the objection that general practical arguments change their character or nature when employed in legal contexts (subset and specification problem) and the related problems concerning legal validity and unjust law. He concludes proposing a procedural (opposite to a coherential) integration of general practical arguments in the legal context. (shrink)

This volume reflects the breadth of Alexy's philosophy, identifies new areas of inquiry and offers a new impetus to the discourse theory of law.

In this article, I take up two arguments in favor of the discursive model of legal argumentation: the claim to correctness argument and the dual nature thesis. The argument of correctness implies the dual nature thesis, and the dual nature thesis implies a nonpositivistic concept of law. The nonpositivistic concept of law comprises five ideas. One of them is the special case thesis. The special case thesis says that positivistic elements, that is, statutes, precedents, and prevailing doctrines, are necessary for (...) law in order to achieve legal certainty. Without this, law would not be as perfect as it could possibly be. But it says, at the same time, that this alone would not be enough to fulfill the claim to correctness. The claim to correctness refers not only to the real dimension of law, defined by statutes, precedents, and prevailing doctrines, but also to its ideal dimension, defined, first and foremost, by justice. The special case thesis is my oldest thesis. It has remained an essential element of my system over the years. Its connection with four other theses—the Radbruch formula, the human rights thesis, the idea of deliberative democracy, and principles theory—does not change this at all. On the contrary, this connection has lent greater strength to the special case thesis. (shrink)

According to the author there is no doubt that one has to distinguish between the justification and the application of norms. Problems are seen only to arise if one asks what exactly the distinction is and which consequences have to be drawn from it. Recently, Klaus Günther, in particular, has searched for this distinction and connected it with far‐reaching conclusions concerning the theory of norms, arguments, and morals. His theses are the object of the author's considerations.

The first part of this article contains (i) considerations as to the relationship between jurisprudence and legal dogmatics, legal philosophy, and sociology of law; (ii) considerations about the status of jurisprudence both as a meta‐ and an object‐theory. These lead to the suggestion that jurisprudence should be defined as a general juristic theory of law and legal science. In the second part, the character and elements of this definition are explained systematically. The article's main thesis is that jurisprudence is not (...) distinguished from legal philosophy and sociology of law by its subject or its method, but by the specifically juristic research aspect or perspective it is based upon. (shrink)

Two claims lay the foundation for Beyleveld and Brownsword’s legal theory. The first says that immoral laws cannot be law, the second that rights to freedom and welfare can be proven to be logically necessary given merely the phenomenon of agency. The author argues that both claims are too strong. The first is an overidealization of law, which fails to do justice to its double nature as a real as well as an ideal phenomenon. The second must fail, for a (...) moral “ought” cannot be deduced from a merely instrumental “ought.”. (shrink)

The first part of this article contains an analysis of the concept of a right, which implies a rational structure of reasoning about rights, elaborated in the second part. In the third part both the concept of a right and reasoning about rights are connected with the theory of rational discourse. The author's thesis is that there exists an internal relation between the theory of rights and the theory of legal reasoning.

These are the answers I gave to Brian Bix, Peter Koller, Ralf Posher, Torben Spaak, Timothy Endicott, and Jan Sieckmann at the end of a splendid conference day in 2018. The critique given to me concerned important aspects of three main themes in my work: the claim to correctness, human and constitutional rights, and the ideal dimension of law. In the last decades I have attempted to connect these themes systematically. The result is the idea of democratic constitutionalism as an (...) institutionalization of practical reason. (shrink)

This article calls for the construction of constitutional rights as principles, rather than as rules. The rule construction conceives subsumption or classification as the appropriate form for the application of constitutional rights. It attempts, in this way, to avoid the problems associated with balancing. By contrast, the principles construction argues that balancing is inevitable and unavoidable. Balancing is at the very core of the proportionality test. The debate over the construction of constitutional rights is, therefore, first and foremost a debate (...) over proportionality analysis. The central objection to the principles construction is that balancing and, with it, the proportionality test, is irrational. This irrationality objection is countered by analysis of the formal structure of balancing; the analysis shows that balancing is a case of rational legal argument that is explicated by means of an arithmetic formula: the Weight Formula. The Weight Formula provides a demonstration of how and why balancing is possible as a form of rational legal argument. It also makes it possible to show that proportionality analysis endangers neither the power nor the force of constitutional rights. (shrink)

Ratti has attacked principles theory in two respects. The first is that it is impossible to distinguish between rules and principles. The second is that the main thesis of principles theory, which says that balancing is the specific way of applying principles, is wrong. The result of Ratti's critique is his thesis that principles theory founders on a contradiction or, as Ratti calls it, an antinomy. All of this is based on two arguments: Ratti's disapplication argument and his law of (...) concretization. I attempt to reject this analysis, for it is incomplete. It claims to be an analysis of balancing, but it misses the decisive point of balancing. Informed by this background, I defend the distinction between rules and principles as a distinction of the real and the ideal “ought.”. (shrink)

Dva su osnovna shvatanja odnosa između ustavnih prava i analize proporcionalnosti. Prvo drži da postoji nužna veza između ustavnih prava i proporcionalnosti; drugo tvrdi da pitanje o tome da li su ustavna prava i proporcionalnost povezani zavisi od toga šta su ustavotvorci zapravo odlučili, tj. zavisi od pozitivnog prava. Prva teza se može označiti kao “teza o nužnosti”, druga se može označiti kao “teza o kontingentnosti.” Prema tezi o nužnosti, legitimnost proporcionalnosti je pitanje prirode ustavnih prava, dok je prema tezi (...) o kontingentnosti legitimnost proporcionalnosti pitanje tumačenja. U članku se zastupa teza o nužnosti. | Prethodna verzija ovog članka je objavljena u Chinese Yearbook of Constitutional Law (2010). 221–235. (shrink)

At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessary connections between law and morality and, second, normative reasons for including moral elements in the concept of law. While the conceptual argument alone is too limited to establish a sufficiently strong connection between law (...) and morality, and the normative argument alone fails to address the nature of law, the two arguments together support a nonpositivistic concept of law, toppling legal positivism qua comprehensive theory of law. (shrink)

There are two fundamentally different conceptions of the nature of constitutional rights: a positivistic conception and a non-positivistic conception. According to both, constitutional rights are part of the positive law. The difference is that in the positivistic conception, constitutional rights are only or exclusively positive law, whereas in the non-positivistic conception positivity represents but one side of constitutional rights, that is to say, their real or factual side. Over and above this, constitutional rights, according to the non-positivistic conception, also have (...) an ideal or critical dimension. This is not without reason. For as with all law, constitutional rights necessarily raise, in connection with principles theory, a claim to correctness. This claim to correctness leads to a necessary connection between constitutional rights understood as positive rights and human rights understood as moral rights, and, with this, to the dual nature of constitutional rights. (shrink)

That two theories of law are different does not imply that they differ in all aspects. Far more likely is the opposite state of affairs, namely, that there are some common points along with some points of disagreement. I will start with three points in which there seems to be at least some connection between Joseph Raz’s opinions and my own. In a second step, I will consider what is, perhaps, the most fundamental difference.

En el debate entre el positivismo y el no-positivismo el argumento del relativismo tiene un papel fundamental. Tal y como es presentado, por ejemplo, por Hans Kelsen, este argumento señala, en primer lugar, que una conexión necesaria entre el derecho y la moral presupone la existencia de elementos morales objetivos, absolutos y necesarios, y, en segundo lugar, que estos elementos morales objetivos, absolutos y necesarios no existen. Mi respuesta a esto es que los elementos morales absolutos, objetivos y necesarios existen, (...) porque los derechos humanos existen, y éstos existen porque son fundamentables. In the debate between positivism and non-positivism the argument from relativism plays a pivotal role. The argument from relativism, as put forward, for instance, by Hans Kelsen, says, first, that a necessary connection between law and morality presupposes the existence of absolute, objective, or necessary moral elements, and, second, that no such absolute, objective, or necessary moral elements exist. My reply to this is that absolute, objective, or necessary moral elements do exist, for human rights exist, and human rights exist because they are justifiable. (shrink)

Focusing on Hans Kelsen's concept of the 'ought', the main problem is whether the 'ought' qua obligation or the 'ought' qua empowerment or competence serves as his fundamental normative concept. Stanley L Paulson has adduced strong textual arguments for the thesis that the fundamental role played by empowerment represented Kelsen's opinion ever since the late 1930s. But to accept the thesis of the fundamental character of empowerment as an interpretive thesis is not, eo ipso , to accept it as a (...) norm-theoretic thesis. In light of this background, I take up three arguments for conceiving the modality of obligation as being at least as fundamental: the chain argument, the argument from unlawfulness, and the argument from overload. This leads to the conclusion that Kelsen's 'ought' would be incomplete if it did not comprise obligation as a modality that is at least as fundamental as the modality of empowerment or competence. (shrink)