60 found
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  1. The Argument From Injustice: A Reply to Legal Positivism.Robert Alexy - 2002 - Oxford ;: Oxford University Press UK.
    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 (...)
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  2. A Theory of Constitutional Rights.Robert Alexy - 2002 - Oxford University Press UK.
    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.
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  3.  76
    A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification.Robert Alexy - 2009 - Oxford University Press.
    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.
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  4. On Balancing and Subsumption. A Structural Comparison.Robert Alexy - 2003 - Ratio Juris 16 (4):433-449.
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  5. 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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  6. On the concept and the nature of law.Robert Alexy - 2008 - Ratio Juris 21 (3):281-299.
    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 (...)
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  7. The Content and Purpose of a Theory of Constitutional Rights.Robert Alexy - 2002 - In Julian Rivers (ed.), A Theory of Constitutional Rights. Oxford University Press.
     
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  8. Constitutional Rights, Balancing, and Rationality.Robert Alexy - 2003 - Ratio Juris 16 (2):131-140.
    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 (...)
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  9. Constitutional Rights and Proportionality.Robert Alexy - 2014 - Revus 22:51-65.
    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 (...)
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  10. On Necessary Relations Between Law and Morality.Robert Alexy - 1989 - Ratio Juris 2 (2):167-183.
    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 (...)
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  11. The Concept of Coherence and Its Significance for Discursive Rationality.Robert Alexy & Aleksander Peczenik - 1990 - Ratio Juris 3 (s1):130-147.
    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; (...)
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  12. Discourse Theory and Human Rights.Robert Alexy - 1996 - Ratio Juris 9 (3):209-235.
    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.
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  13.  3
    Constitutional Rights, Balancing, and Rationality.Robert Alexy - 2003 - Ratio Juris 16 (2):131-140.
    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 (...)
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  14. 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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  15.  52
    Kant’s Non-Positivistic Concept of Law.Robert Alexy - 2019 - Kantian Review 24 (4):497-512.
    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 (...)
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  16. On the Structure of Legal Principles.Robert Alexy - 2000 - Ratio Juris 13 (3):294-304.
    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 (...)
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  17. 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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  18. Some Reflections on the Ideal Dimension of Law and on the Legal Philosophy of John Finnis.Robert Alexy - 2013 - American Journal of Jurisprudence 58 (2):97-110.
    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 (...)
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  19.  90
    On the Thesis of a Necessary Connection between Law and Morality: Bulygin's Critique.Robert Alexy - 2000 - Ratio Juris 13 (2):138-147.
    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, (...)
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  20. The Nature of Legal Philosophy.Robert Alexy - 2004 - Ratio Juris 17 (2):156-167.
    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 (...)
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  21. A Discourse-Theoretical Conception of Practical Reason.Robert Alexy - 1992 - Ratio Juris 5 (3):231-251.
    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 (...)
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  22.  61
    The Special Case Thesis.Robert Alexy - 1999 - Ratio Juris 12 (4):374-384.
    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, (...)
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  23.  21
    Law, rights and discourse: the legal philosophy of Robert Alexy.George Pavlakos & Robert Alexy (eds.) - 2007 - Oxford ; Portland, Or.: Hart.
    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.
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  24.  28
    The Special Case Thesis and the Dual Nature of Law.Robert Alexy - 2018 - Ratio Juris 31 (3):254-259.
    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 (...)
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  25.  61
    Justification and Application of Norms.Robert Alexy - 1993 - Ratio Juris 6 (2):157-170.
    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.
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  26. The nature of arguments about the nature of law.Robert Alexy - 2003 - In Lukas H. Meyer, Stanley L. Paulson & Thomas Winfried Menko Pogge (eds.), Rights, Culture, and the Law: Themes From the Legal and Political Philosophy of Joseph Raz. Oxford University Press. pp. 3--16.
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  27. Rechtssystem und praktische Vernunft.Robert Alexy - 1987 - Rechtstheorie 18 (4):405-419.
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  28.  4
    The Concept of Jurisprudence.Robert Alexy & Ralf Dreier - 1990 - Ratio Juris 3 (1):1-13.
    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 (...)
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  29. The concept of jurisprudence.Robert Alexy & Ralf Dreier - 1993 - In K. B. Agrawal & R. K. Raizada (eds.), Sociological Jurisprudence and Legal Philosophy: Random Thoughts On. University Book House. pp. 1-13.
  30.  48
    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.
    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 (...)
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  31. The Construction of Constitutional Rights.Robert Alexy - 2010 - Law and Ethics of Human Rights 4 (1):21-32.
    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 (...)
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  32. Basic Rights and Democracy in Jurgen Habermas's Procedural Paradigm of the Law.Robert Alexy - 1994 - Ratio Juris 7 (2):227-238.
  33.  80
    Rights, Legal Reasoning and Rational Discourse.Robert Alexy - 1992 - Ratio Juris 5 (2):143-152.
    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.
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  34.  13
    The Claim to Correctness, Rights, and the Ideal Dimension of Law: A Short Reply.Robert Alexy - 2020 - Ratio Juris 33 (3):283-290.
    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 (...)
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  35.  16
    V. Unbestimmtheit des Rechts und Rationalität der Rechtsprechung.Robert Alexy - 2016 - In Christian Hiebaum & Peter Koller (eds.), Jürgen Habermas: Faktizität Und Geltung. De Gruyter. pp. 85-98.
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  36.  12
    Ralf Dreier: In Memoriam.Robert Alexy - 2019 - Ratio Juris 32 (4):529-530.
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  37.  28
    Giovanni Battista Ratti's Critique of Principles Theory.Robert Alexy - 2023 - Ratio Juris 36 (2):153-159.
    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 (...)
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  38.  61
    On Two Juxtapositions: Concept and Nature, Law and Philosophy. Some Comments on Joseph Raz's "Can There Be a Theory of Law?".Robert Alexy - 2007 - Ratio Juris 20 (2):162-169.
  39. Comments and responses.Robert Alexy - 2012 - In Matthias Klatt (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy. Oxford University Press.
     
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  40. Coherence and Argumentation or the Genuine Twin Criterialess Super Criterion.Robert Alexy - 1998 - In Aulis Aarnio (ed.), On Coherence Theory of Law. Distribution, Akademibokhandeln I Lund. pp. 41--9.
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  41. The ideal dimension of law.Robert Alexy - 2017 - In George Duke & Robert P. George (eds.), The Cambridge companion to natural law jurisprudence. Cambridge University Press.
     
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  42. Ustavna prava i proporcionalnost.Robert Alexy - 2014 - Revus 22:35-50.
    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 (...)
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  43.  3
    Argument From Injustice: A Reply.Robert Alexy - 2009 - Oxford ;: Oxford University Press UK.
    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 (...)
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  44.  13
    A Non-positivistic Concept of Constitutional Rights.Robert Alexy - 2020 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 33 (1):35-46.
    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 (...)
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  45.  26
    Aleksander Peczenik: In Memoriam.Robert Alexy - 2006 - Ratio Juris 19 (2):245-248.
  46.  28
    Acuerdos Y desacuerdos. Algunas observaciones introductorias.Robert Alexy - 2005 - Anales de la Cátedra Francisco Suárez 39:729-742.
    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.
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  47. Cómo proteger los derechos humanos? Proporcionalidad y racionalidad.Robert Alexy - 2017 - In Juan Pablo Alonso & Renato Rabbi-Baldi Cabanillas (eds.), Argumentación, derechos humanos y justicia. Astrea.
     
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  48.  31
    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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  49.  30
    Hans Kelsen's Concept of the 'Ought'.Robert Alexy - 2013 - Jurisprudence 4 (2):235-245.
    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 (...)
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  50.  64
    Henry Prakken (1997), Logical Tools for Modelling Legal Argument. A Study of Defeasible Reasoning in Law.Robert Alexy - 2000 - Argumentation 14 (1):65-72.
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