Robert Alexy and the Dual Nature of Law
32 Pages Posted: 9 Apr 2019
Date Written: March 7, 2019
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 an 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 dual-nature thesis implies non-positivism. The dual-nature thesis raises many interesting philosophical questions, but I shall be content to consider just a few of them in this article. I shall consider (i) the meaning and defensibility of the correctness thesis, which has it that law of necessity raises a claim to moral correctness; (ii) the question of whether Alexy’s discourse theory, which allows for so-called discursive possibility, really supports the correctness thesis and, more generally, the claims of normative necessity that are involved in the analysis of the concept of law put forward by Alexy; (iii) the validity of the argument from anarchy and civil war, which Alexy adduces in support of his claim that law has of necessity a real dimension; and (iv) the implications for the status of Alexy’s inquiry of the use of moral arguments, specifically, the argument from injustice, in this inquiry.
I am going to argue (A) that Alexy’s correctness thesis is defensible, and that Joseph Raz’s well-known objection – that the correctness thesis is merely a special case of a more general, conceptual thesis about intentional actions – does not undermine Alexy’s inquiry into the nature of law; (B) that Alexy’s discourse theory – according to which some legal claims, say, “p is obligatory”, are neither discursively necessary (□*Op), nor discursively impossible (-◊*Op), but are instead discursively possible (◊*Op & ◊*-Op), or, as I would say, discursively contingent – does not support the correctness thesis or, more generally, the claims of normative necessity that are involved in the analysis of the concept of law put forward by Alexy; (C) that the argument from anarchy and civil war fails to establish the desired conclusion, that law has of necessity a real dimension; and (D) that Alexy’s use of moral arguments in the analysis is incompatible not only with the view that Alexy is analyzing the concept of law, but also with the view that he is explicating (or rationally reconstructing) said concept.
Keywords: Alexy, dual nature of law, claim to correctness, discourse theory, legal positivism, explication, deontic logic
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