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)
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)
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)
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)
In any country where there is a Bill of Rights, constitutional rights reasoning is an important part of the legal process. As more and more countries adopt Human Rights legislation and accede to international human rights agreements, and as the European Union introduces its own Bill of Rights, judges struggle to implement these rights consistently and sometimes the reasoning behind them is lost. Examining the practice in other jurisdictions can be a valuable guide. Robert Alexy's classic work reconstructs the reasoning (...) behind the jurisprudence of the German Basic Law and in doing so provides a theory of general application to all jurisdictions where judges wrestle with rights adjudication. -/- In considering the features of constitutional rights reasoning, the author moves from the doctrine of proportionality, procedural rights and the structure and scope of constitutional rights, to general rights of liberty and equality and the problem of horizontal effect. A postscript written for the English edition considers critiques of the Theory since it first appeared in 1985, focusing in particular on the discretion left to legislatures and in an extended introduction the translator argues that the theory may be used to clarify the nature of legal reasoning in the context of rights under the British Constitution. -/- This book will be of central interest to all legal and constitutional theorists and human rights scholars. (shrink)
Abstract. 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)
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.
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.
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)
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)