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The Argument From Injustice: A Reply to Legal Positivism

Oxford University Press UK (2002)

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  1. Validity, Rule of Recognition and Stability: Revisiting Analytical Concepts From the Law‐Morals Connection.Miguel Álvarez Ortega - 2012 - Ratio Juris 25 (2):247-262.
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  • Concretized Norm and Sanction Qua Fact in the Vienna School's Stufenbaulehre.Martin Borowski - 2014 - Ratio Juris 27 (1):79-93.
    At the bottom level of the hierarchical structure of the legal system, the transition from “ought” to “is” has not been given its due. I argue that an additional level, that of fully concretized norms, belongs in the hierarchy. This sheds light on precisely where and how the transition from “ought” to “is” takes place. Whereas the fully concretized norm marks the bottom level in the hierarchy of norms, the coercive act or sanction qua fact is not found in the (...)
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  • Corrective Justice Among States.Pavlos Eleftheriadis - 2020 - Jus Cogens 2 (1):7-27.
    The debate concerning solidarity and justice among states has missed the key contribution made to international affairs by corrective justice. Unlike distributive justice, which applies within states, corrective justice applies among states. It applies in particular to cooperative arrangements creating interdependence among them. Corrective justice does not require fairness in outcomes. It requires redress in cases of loss caused by unfairness. An illustration of corrective justice among states is the Eurozone’s response to the financial crisis. The assistance offered to the (...)
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  • Robert Alexy and the Dual Nature of Law.Torben Spaak - 2020 - Ratio Juris 33 (2):150-168.
    Robert Alexy maintains that law has a dual nature, in the sense that it necessarily has both a real and an ideal dimension, and that this feature is “the single most essential feature of law”. He explains that the elements of authoritative issuance and social efficacy constitute the real dimension of law, whereas the claim to moral correctness makes up the ideal dimension. And, he points out, the dualnature thesis implies nonpositivism. I argue that Alexy’s correctness thesis is defensible, and (...)
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  • Schauer's Anti‐Essentialism.Torben Spaak - 2016 - Ratio Juris 29 (2):182-214.
    In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties, and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti-essentialism is a defensible position fails, because his one main argument is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument is false.
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  • Legal Certainty and Correctness.Robert Alexy - 2015 - Ratio Juris 28 (4):441-451.
    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, (...)
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  • A Typological Reading of Prevailing Legal Theories.Marko Novak - 2014 - Ratio Juris 27 (2):218-235.
    A classic debate in the history of philosophy is that between rationalists and empiricists concerning the “true” source of human knowledge. In legal philosophy this debate has been reflected in the classic opposition between natural law and legal positivist perspectives. Even the currently predominant inclusivist perspectives on the nature of law, such as inclusive legal positivism and inclusive legal non-positivism, are not immune to such a dichotomy. In this paper I attempt to present an understanding of specific cognitive characteristics of (...)
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  • On the Nature of Norms.Peter Koller - 2014 - Ratio Juris 27 (2):155-175.
    This paper deals with the question of how norms are to be conceived of in order to understand their role as guidelines for human action within various normative orders, particularly in the context of law on the one hand and conventional morality on the other. After some brief remarks on the history of the term “norm,” the author outlines the most significant general features of actually existing social norms, including legal and conventional norms, from which he arrives at two basic (...)
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  • Positivism, Legal Validity, and the Separation of Law and Morals.Giorgio Pino - 2014 - Ratio Juris 27 (2):190-217.
    The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post-Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...)
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  • Practical‐Political Jurisprudence and the Dual Nature of Law.Sarah Nason - 2013 - Ratio Juris 26 (3):430-455.
    Law contains many dualities, though most, if not all, of these dualities resolve into one complex puzzle: To what extent is law a matter of pure social facts, or moral value untethered to social facts? I argue that each concept of law reconciles this duality in a different way on the basis of certain beneficial consequences that might result. Instead of pitting concepts against one another universally, we should accept that the balance between law's social fact and moral value dimensions (...)
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  • The Objectivity of Beliefs, Reasonable Disagreement and Political Deliberation.Felipe Oliveira De Sousa - 2013 - Ratio Juris 26 (2):262-281.
    This paper is part of a broader argument that seeks to offer a justification for political authority. It aims to investigate the role of truth in political argument and to place the problem of reasonable disagreement. The argument focuses on the possibility of political deliberation, that figures as a stage of political decision-making. It has to do with a confrontation between incompatible substantive beliefs which, however, all seem to be reasonable. How can citizens holding incompatible beliefs engage in an enterprise (...)
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  • When Is a Regime Not a Legal System? Alexy on Moral Correctness and Social Efficacy.David H. McIlroy - 2013 - Ratio Juris 26 (1):65-84.
    Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress (...)
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  • Law, Morality, and the Existence of Human Rights.Robert Alexy - 2012 - Ratio Juris 25 (1):2-14.
    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 (...)
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  • Correctness and Cognitivism. Remarks on Robert Alexy's Argument From the Claim to Correctness.George Pavlakos - 2012 - Ratio Juris 25 (1):15-30.
    The argument from the claim to correctness has been put forward by Robert Alexy to defend the view that normative utterances admit of objective answers. My purpose in this paper is to preserve this initial aspiration even at the cost of diverting from some of the original ideas in support of the argument. I begin by spelling out a full-blooded version of normative cognitivism, against which I propose to reconstruct the argument from the claim to correctness. I argue that the (...)
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  • Neil MacCormick's Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View.Aldo Schiavello - 2011 - Ratio Juris 24 (2):140-155.
    This paper offers a diachronic reconstruction of MacCormick's theory of law and legal argumentation: In particular, two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick's gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick's acceptance (...)
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  • The Dual Nature of Law.Robert Alexy - 2010 - Ratio Juris 23 (2):167-182.
    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 (...)
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  • Norm Enactment and Performative Contradictions.Antonino Rotolo & Corrado Roversi - 2009 - Ratio Juris 22 (4):455-482.
    In this paper we investigate the role of performative contradictions in legal discourse. First of all we identify the argumentative roles of performative contradictions and two possible interpretations of them. With this done, we show that one use of performative contradictions can be fruitfully applied in analysing normative speech acts implementing norm enactment, namely, those speech acts that are designed to produce new legal norms. We conclude the paper by showing that our analysis provides strong support for Robert Alexy's claim-to-correctness (...)
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  • On the Concept and the Nature of Law.Robert Alexy - 2008 - Ratio Juris 21 (3):281-299.
  • Taking Rights Less Seriously. A Structural Analysis of Judicial Discretion.Matthias Klatt - 2007 - Ratio Juris 20 (4):506-529.
  • Non-Individualism, Rights, and Practical Reason.George Pavlakos - 2008 - Ratio Juris 21 (1):66-93.
  • Two Schools of Legal Idealism: A Positivist Introduction.Tony Ward - 2006 - Ratio Juris 19 (2):127-140.
    This article provides a critical introduction to an issue fo Ratio Juris concerend with two contrasting schools of legal idealism: the so-called Sheffield School (Beyleveld, Brownsword and colleagues) and the “discourse ethics” school of Habermas and Alexy. The article focusses on four issues: (1) whether a "claim to correctness" is a necessary feature of law, (2) the connection between correctness and validity, (3) Alexy's argument for a "qualifying connection" between law and morality, and its counterpart in the Sheffield School's approach, (...)
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  • The Concept of Law and Its Conceptions.Peter Koller - 2006 - Ratio Juris 19 (2):180-196.
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  • Effects of Defects-Action or Argument? Thoughts About Deryck Beyleveld and Roger Brownsword's Law as a Moral Judgment.Robert Alexy - 2006 - Ratio Juris 19 (2):169-179.
  • The Sheffield School and Discourse Theory: Divergences and Similarities in Legal Idealism/Anti-Positivism.Bev Clucas - 2006 - Ratio Juris 19 (2):230-244.
  • On Two Distinct and Opposing Versions of Natural Law: "Exclusive" Versus "Inclusive".Massimo la Torre - 2006 - Ratio Juris 19 (2):197-216.
  • The Limits of Institutionalised Legal Discourse.Emmanuel Melissaris - 2005 - Ratio Juris 18 (4):464-483.
    . One of the most powerful accounts of the necessary connection between law and morality grounded on the openness of communication is provided by Robert Alexy, who builds a discourse theory of law on the basis of Habermas’ theory of general practical discourse. In this article I argue that the thesis based on the openness of legal discourse is problematic in that it does not provide a convincing account of the differentiation of legal discourse from other practical discourses. I offer (...)
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  • Gustav Radbruch Vs. Hans Kelsen: A Debate on Nazi Law.Frank Haldemann - 2005 - Ratio Juris 18 (2):162-178.
    . Can the label “law” apply to rules as amoral as the enactments of the Nazis? This question confronted the courts in Germany after 1945. In dealing with it, the judges had to take sides in the philosophical debate over the concept of law. In this context, the prominent voices of the legal philosophers Gustav Radbruch and Hans Kelsen could not go unheard. This paper draws on what could have been the “Radbruch‐Kelsen debate on Nazi Law.” In examining the debate, (...)
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  • The Nature of Legal Philosophy.Robert Alexy - 2004 - Ratio Juris 17 (2):156-167.
  • Law’s Cultural Project and the Claim to Universality or the Equivocalities of a Familiar Debate.José Manuel Aroso Linhares - 2012 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 25 (4):489-503.
    Do our present circumstances allow us to defend a specific connection (that specific connection) between «legal rules», «moral claims» and «democratic principles» which we may say is granted by an unproblematic presupposition of universality or by an «acultural» experience of modernity? In order to discuss this question, this paper invokes the challenge-visée of a plausible reinvention of Law’s autonomous project (a reinvention which may be capable of critically re-thinking and re-experiencing Law’s constitutive cultural-civilizational originarium in a «limit-situation» such as our (...)
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  • Legal Argumentation and Justice in Luhmann’s System Theory of Law.Francesco Belvisi - 2014 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 27 (2):341-357.
    The paper reconstructs Luhmann’s conception of legal argumentation and justice especially focussing on the aspects of contingency and self-referring operative closure. The aim of his conception is to describe/explain in a disenchanted way—from an external, of “second order” point of view—the work on adjudication, which, rather idealistically, lawyers and judges present as being a matter of reason. As a consequence of some surface similarities with Derrida’s deconstructive philosophy of justice, Teubner proposes integrating the supposed reductive image of formal justice described (...)
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  • The Canberra Plan and the Nature of Law.Torben Spaak - 2016 - In Pawel Banas, Adam Dyrda & Tomasz Gizbert-Studnicki (eds.), Metaphilosophy of Law.
    In this article, I shall consider a method for conceptual analysis which has been called the Canberra Plan and which might perhaps be conceived as an alternative approach to conceptual analysis in the classical sense. The Canberra Plan is not, however, aimed primarily at the elucidation of the relevant concept, but at the metaphysical question of identifying the descriptive property that corresponds to the concept.[1] The idea of the Canberra Plan is, more specifically, to clarify the import of the concept (...)
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  • Moral Cognitivism and Legal Positivism in Habermas's and Kan't Philosophy of Law.Delamar José Volpato Dutra & Nythamar de Oliveira - 2017 - [email protected] - An International Journal for Moral Philosophy 16 (3):533-546.
    The hypothesis of this paper is that legal positivism depends on the non plausibility of strong moral cognitivism because of the non necessary connection thesis between law and morality that legal positivism is supposed to acknowledge. The paper concludes that only when based on strong moral cognitivism is it consistent to sustain the typical non-positivistic thesis of the necessary connection between law and morality. Habermas’s Philosophy of law is confronted with both positions.
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  • Quasi-Expressivism About Statements of Law: A Hartian Theory.Stephen Finlay & David Plunkett - forthcoming - In John Gardner, Leslie Green & Brian Leiter (eds.), Oxford Studies in Philosophy of Law, vol. 3. Oxford University Press.
    Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...)
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  • Философия Права Роберта Алекси.С. І Максимов - 2016 - Вісник Нюу Імені Ярослава Мудрого: Серія: Філософія, Філософія Права, Політологія, Соціологія 1 (28):89-97.
    The article analyzes the main provisions of the Robert Alexy’s philosophy of law as an integrated system, which at the same time remains open for further expansion of meanings. It demonstrates how the main motive of the Alexy’s philosophy of law – «the institutionalization of reason» as a combination of real and ideal dimensions of law in the institutions of liberal democracy – series takes place in the three components of his philosophicallegal system: the theory of legal argumentation, the theory (...)
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  • Five Kinds of Perspectives on Legal Institutions.Corrado Roversi - manuscript
    There is at least one immediate sense in which legal discourse is perspectival: it qualifies acts and facts in the world on the basis of rules. Legal concepts are for the most part constituted by rules, both in the sense that rules define these concepts’ semantic content and that, in order to engage with legal practice, we must act according to those rules, not necessarily complying with them but at least having them in mind. This is the distinctive perspective of (...)
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  • Derecho, moral y la existencia de los derechos humanos.Robert Alexy - 2013 - Signos Filosóficos 15 (30):153-171.
    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, (...)
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  • The Sinews of Peace: Rights to Solidarity in the Charter of Fundamental Rights of the European Union.Agustin Jose Menendez - 2003 - Ratio Juris 16 (3):374-398.
  • Natural Law Theories.John Finnis - unknown - Stanford Encyclopedia of Philosophy.