The Argument from Injustice A Reply to Legal Positivism

by Alexy, Robert; Paulson, Bonnie L.; Paulson, Stanley L.

• ISBN13: 9780198259879
• ISBN10: 0198259875
• Format: Hardcover
• Copyright: 2003-03-13
• Publisher: Oxford University Press

Summary

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 necessaryconnections 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 and morality, and the normative argument alone fails to address thenature of law, the two arguments together support a nonpositivistic concept of law, toppling legal positivism qua comprehensive theory of law.The author makes his case within a conceptual framework of five distinctions that can be variously combined to represent a multiplicity of presuppositions or perspectives underlying the enquiry into the relationship of law and morality. In this context, it can indeed be shown that there areperspectives that bespeak solely a positivistic concept of law. The decisive point, however, is that there is a perspective, necessary to the law, that necessarily presupposes a nonpositivistic concept of law. This is the perspective of a participant in the legal system, asking for the correctanswer to a legal question in this legal system. The participant-thesis is demonstrated by appeal to Gustav Radbruch's formula (extreme injustice is not law) and to the judge's balancing of principles in deciding a concrete case. The author arrives at a concept of law that systematically linksclassical elements of legal positivism - authoritative issuance and social efficacy - with the desideratum of nonpositivistic legal theory, correctness of content.

Table of Contents

Abbreviations	ix
Foreword	xv
Foreword to the English Edition	xvii
The Problem of Legal Positivism	1	(10)
The Basic Positions	3	(2)
The Practical Significance of the Debate	5	(6)
Statutory Injustice	5	(3)
Judicial Development of the Law	8	(3)
The Concept of Law	11	(72)
Central Elements	13	(1)
Positivistic Concepts of Law	14	(6)
Primarily Oriented toward Efficacy	14	(1)
External Aspect	14	(2)
Internal Aspect	16	(1)
Primarily Oriented toward Issuance	16	(4)
Critique of Positivistic Concepts of Law	20	(63)
Separation Thesis and Connection Thesis	20	(3)
A Conceptual Framework	23	(1)
Concepts of Law Omitting Validity and Embracing Validity	23	(1)
Legal Systems as Systems of Norms and as Systems of Procedures	24	(1)
Observer's and Participant's Perspectives	25	(1)
Classifying and Qualifying Connections	26	(1)
Conceptually Necessary and Normatively Necessary Connections	26	(1)
Combinations	26	(1)
The Observer's Perspective	27	(1)
Individual Norms	28	(3)
Legal Systems	31	(4)
The Participant's Perspective	35	(1)
The Argument from Correctness	35	(5)
The Argument from Injustice	40	(28)
The Argument from Principles	68	(15)
The Validity of Law	83	(42)
Concepts of Validity	85	(4)
The Sociological Concept of Validity	85	(2)
The Ethical Concept of Validity	87	(1)
The Juridical Concept of Validity	87	(2)
Collisions of Validity	89	(6)
Legal and Social Validity	89	(1)
Systems of Norms	89	(2)
Individual Norms	91	(1)
Legal and Moral Validity	91	(1)
Systems of Norms	92	(1)
Individual Norms	93	(2)
Basic Norm	95	(30)
The Analytical Basic Norm (Kelsen)	96	(1)
Concept	96	(2)
Necessity	98	(4)
Possibility	102	(2)
Content	104	(1)
Tasks	105	(2)
Status	107	(9)
The Normative Basic Norm (Kant)	116	(5)
The Empirical Basic Norm (Hart)	121	(4)
Definition	125	(6)
Index of Names	131	(2)
Index of Subjects	133