Legal Positivism and the Claim to Correctness

50 Pages Posted: 13 Oct 2011

Date Written: October 13, 2011

Abstract

Robert Alexy maintains that law necessarily raises a claim to correctness, that the content of this claim is partly moral, that this means that there is a conceptual connection between law and morality, and that therefore the separation thesis espoused by legal positivists is false. I argue, however, that while Alexy may be right that law necessarily raises a claim to correctness, it does not follow from this that the separation thesis is false. First, the claim to correctness lacks moral content and so it cannot establish a conceptual connection between law and morality. Secondly, even if the claim to correctness did have moral content, the conceptual connection between law and morality that Alexy aims to establish with the argument from correctness, and secure with the help of the argument from principles, does not concern the right morality, but only some morality; and this is not denied by legal positivists.

Alexy introduced the correctness thesis – that is, the thesis that law necessarily raises a claim to correctness – in Theorie der juristischen Argumentation (1991[1978]) and discussed it further in an article on the necessary connections between law and morality (1990), in his book Begriff und Geltung des Rechts (1994[1992]), in an article on law and correctness (1998), and again, in his book The Argument from Injustice (2002), which is a slightly revised version of Begriff und Geltung des Rechts. In what follows, I shall focus on Alexy’s presentation of the correctness thesis in The Argument from Injustice.

I begin by presenting Alexy’s thoughts on the debate about the concept of law (Section 2) and the conceptual framework that Alexy introduces in order to state and discuss the correctness thesis with precision (Section 3). I then consider his discussion of the idea that there is a conceptual connection between law and morality, first, in light of the perspective of an observer (Section 4), and then in light of the perspective of a participant (Section 5). Having done that, I turn to consider certain difficulties with the three main arguments that Alexy adduces in support of his claim that law and morality are conceptually connected when seen from the perspective of a participant, that is, the argument from correctness (Section 6), the argument from injustice (Section 7), and the argument from principles (Section 8). I conclude the chapter with some thoughts on the relation between the perspective of an observer and the perspective of a participant (Section 9), and on the relation between Alexy’s and Lon Fuller’s claims that there is a conceptual connection between law and morality (Section 10). Concluding remarks follow in Section 11.

Suggested Citation

Spaak, Torben, Legal Positivism and the Claim to Correctness (October 13, 2011). Available at SSRN: https://ssrn.com/abstract=1943521 or http://dx.doi.org/10.2139/ssrn.1943521

Torben Spaak (Contact Author)

Stockholm University ( email )

S-106 91 Stockholm
Sweden
46 8 16 45 89 (Phone)
46 8 612 41 09 (Fax)

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