The Argument from Injustice A Reply to Legal Positivism

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

• ISBN13: 9780199584215
• ISBN10: 0199584214
• Format: Paperback
• Copyright: 2010-02-22
• 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 the

Author Biography

Robert Alexy has been Professor of Public Law and Legal Philosophy at Christian Albrechts University, Kiel, since 1986. He was President of the German Section of the International Association for Philosophy of Law and Social Philosophy (IVR) from 1994-1998. Other books published by OUP include A Theory of Legal Argumentation and A Theory of Constitutional Rights.

Table of Contents

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