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Robert Alexy (2002). The Argument From Injustice: A Reply to Legal Positivism.

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  1.  34
    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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  2.  12
    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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  3.  2
    Concretized Norm and SanctionquaFact in the Vienna School'sStufenbaulehre.Martin Borowski - 2014 - Ratio Juris 27 (1):79-93.
    At the bottom level of the hierarchical structure (Stufenbau) 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 (...)
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  4.  32
    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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  5.  1
    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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  6.  34
    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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  7.  23
    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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  8.  14
    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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  9.  41
    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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  10. 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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  11.  17
    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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  12.  21
    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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  13.  61
    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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  14. 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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  15.  30
    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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  16. On the Concept and the Nature of Law.Robert Alexy - 2008 - Ratio Juris 21 (3):281-299.
  17.  13
    Non-Individualism, Rights, and Practical Reason.George Pavlakos - 2008 - Ratio Juris 21 (1):66-93.
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  18.  33
    Taking Rights Less Seriously. A Structural Analysis of Judicial Discretion.Matthias Klatt - 2007 - Ratio Juris 20 (4):506-529.
  19.  25
    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.
  20.  13
    The Sheffield School and Discourse Theory: Divergences and Similarities in Legal Idealism/Anti-Positivism.Bev Clucas - 2006 - Ratio Juris 19 (2):230-244.
  21.  8
    The Concept of Law and Its Conceptions.Peter Koller - 2006 - Ratio Juris 19 (2):180-196.
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  22.  13
    On Two Distinct and Opposing Versions of Natural Law: "Exclusive" Versus "Inclusive".Massimo La Torre - 2006 - Ratio Juris 19 (2):197-216.
  23.  26
    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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  24. 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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  25.  88
    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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  26.  77
    The Nature of Legal Philosophy.Robert Alexy - 2004 - Ratio Juris 17 (2):156-167.
  27.  13
    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.