The Argument from Injustice: A Reply to Legal Positivism

by Robert Alexy, Stanley Paulson, Bonnie Paulson

Overview

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.

The author makes his case within a conceptual framework of five distinctions that can be variously combined to represent a multiplicity of presuppositions or perspectives underlying the enquiry into the relationship of law and morality. In this context, it can indeed be shown that there are perspectives that bespeak solely a positivistic concept of law. The decisive point, however, is that there is a perspective, necessary to the law, that necessarily presupposes a nonpositivistic concept of law. This is the perspective of a participant in the legal system, asking for the correct answer to a legal question in this legal system. The participant-thesis is demonstrated by appeal to Gustav Radbruch's formula (extreme injustice is not law) and to the judge's balancing of principles in deciding a concrete case. The author arrives at a concept of law that systematically links classical elements of legal positivism - authoritative issuance and social efficacy - with the desideratum of nonpositivistic legal theory, correctness of content.

Product Details

ISBN-13:	9780199584215
Publisher:	Oxford University Press
Publication date:	02/22/2010
Pages:	160
Product dimensions:	5.40(w) x 8.40(h) x 0.20(d)

About the Author

Robert Alexy has been Professor of Public Law and Legal Philosophy at Christian Albrechts University, Kiel, since 1986. He was President of the German Section of the International Association for Philosophy of Law and Social Philosophy (IVR) from 1994-1998. Other books published by OUP include A Theory of Legal Argumentation and A Theory of Constitutional Rights.

Table of Contents

Abbreviations ix

Foreword xv

Foreword to the English Edition xvii

I The Problem of Legal Positivism 1

1 The Basic Positions 3

2 The Practical Significance of the Debate 5

A Statutory Injustice 5

B Judicial Development of the Law 8

II The Concept of Law 11

1 Central Elements 13

2 Positivistic Concepts of Law 14

A Primarily Oriented toward Efficacy 14

(i) External Aspect 14

(ii) Internal Aspect 16

B Primarily Oriented toward Issuance 16

3 Critique of Positivistic Concepts of Law 20

A Separation Thesis and Connection Thesis 20

B A Conceptual Framework 23

(i) Concepts of Law Omitting Validity and Embracing Validity 23

(ii) Legal Systems as Systems of Norms and as Systems of Procedures 24

(iii) Observer's and Participant's Perspectives 25

(iv) Classifying and Qualifying Connections 26

(v) Conceptually Necessary and Normatively Necessary Connections 26

(vi) Combinations 26

C The Observer's Perspective 27

(i) Individual Norms 28

(ii) Legal Systems 31

D The Participant's Perspective 35

(i) The Argument from Correctness 35

(ii) The Argument from Injustice 40

(iii) The Argument from Principles 68

III The Validity of Law 83

1 Concepts of Validity 85

A The Sociological Concept of Validity 85

B The Ethical Concept of Validity 87

C The Juridical Concept of Validity 87

2 Collisions of Validity 89

A Legal and Social Validity 89

(i) Systems of Norms 89

(ii) Individual Norms 91

B Legal and Moral Validity 91

(i) Systems of Norms 92

(ii) Individual Norms 93

3 Basic Norm 95

A The Analytical Basic Norm (Kelsen) 96

(i) Concept 96

(ii) Necessity 98

(iii) Possibility 102

(iv) Content 104

(v) Tasks 105

(vi) Status 107

B The Normative Basic Norm (Kant) 116

C The Empirical Basic Norm (Hart) 121

IV Definition 125

Index of Names 131

Index of Subjects 133