In this paper we investigate the role of performative contradictions in legal discourse. First of all we identify the argumentative roles of performative contradictions and two possible interpretations of them. With this done, we show that one use of performative contradictions can be fruitfully applied in analysing normative speech acts implementing norm enactment, namely, those speech acts that are designed to produce new legal norms. We conclude the paper by showing that our analysis provides strong support for Robert Alexy's claim-to-correctness (...) thesis, according to which speech acts of the norm-enacting kind raise a claim to correctness. (shrink)

The paper aims at a critical discussion of Alexy’s conception of the relationship between law and morality, which is known to insist on their necessary connection. After a brief recapitulation of this conception, the author scrutinizes three of its essential elements: the thesis of the dual nature of law, the argument from law’s claim to moral correctness, and the idea of an objective morality. Finally, he sketches his own position which, in some respects, resembles Alexy’s view, but also differs from (...) it in certain relevant points. (shrink)

Robert Alexy’s theory of legal argumentation is among the notable contributions made to mainstream jurisprudence in the last three decades. Remaining true to its rational discursive mission, it engages with both analytical positivism and natural law theories. A recent collection of essays edited by George Pavlakos explores Alexy’s theory from a number of philosophical standpoints, revealing its theoretical potential and flaws. By doing so, this volume helps us to gain a better understanding of the implications of Alexy’s theory of legal (...) argumentation, but also to identify new areas of research within the discourse theory of law. Although this collection is concerned with a critical examination of various aspects of Alexy’s work, it nonetheless draws attention to the dual characteristics of positive law, that is, the problematic separation of facts from values, law from morality, legal certainty from justice, which continue to preoccupy legal theory. In what follows I shall attempt to examine the debate between Alexy and the contributors to Pavlakos’s volume in order to gain a deeper understanding of the role of dichotomies in legal theory. Part 1 starts by explaining the theoretical background against which I have read the debate on Alexy’s theory of legal argumentation. I have explored the role of dichotomies in socio-legal research elsewhere. However, in the following pages, I shall use Alan Norrie’s critical examination of antinomies to throw light on some of the shortcomings of Alexy’s theory and also to discuss the concerns of mainstream jurisprudence. In that sense, this essay presents both Norrie’s and Alexy’s works, using the former to critically assess the latter. In Part 2, I briefly sketch the layout of Pavlakos’s collection to provide an overview of the type of questions that are discussed by the various contributors. Parts 3 and 4 bring into focus two issues that loom large in the collection. The first issue is Alexy’s central thesis on law’s claim to correctness, while the second concerns the duality of law exemplified by the attempts of mainstream jurisprudence to cope with the tension between the positivist notion of law and the idea of justice. In Part 5, I conclude the essay by reflecting on some of the implications of Alexy’s thesis. (shrink)

. One of the most powerful accounts of the necessary connection between law and morality grounded on the openness of communication is provided by Robert Alexy, who builds a discourse theory of law on the basis of Habermas’ theory of general practical discourse. In this article I argue that the thesis based on the openness of legal discourse is problematic in that it does not provide a convincing account of the differentiation of legal discourse from other practical discourses. I offer (...) an understanding of the institutionalisation of legal discourse as the tacit commitment of the participants to their shared normative experience and in particular in: 1) the possibility of containing normative force in space, 2) the possibility of transforming word into deed, 3) the possibility of grasping and controlling time and 4) the possibility of transforming deed into word. That commitment of participants in legal discourse is revealed as a set of fundamental assumptions embedded in all legal utterances, which provide the necessary bedrock that makes communication possible. It also provides a basis for the institution of legal discourse, to the effect that their problematisation signifies a departure from the latter. (shrink)

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 (...) all by moral defects or demerits (super‐inclusive legal non‐positivism). The dual nature of law is expressed, on the one hand, by the Radbruch formula, which says that extreme injustice is not law, and, on the other, by the correctness argument, which says that law's claim to correctness necessarily includes a claim to moral correctness. Thus, what the law is depends not only on social facts, but also on what the law ought to be. (shrink)

This article offers an overview of the difficulties in Robert Alexy’s idea of law’s “claim to correctness.” The inquiry takes us deep into the nature of simple communication, back out to what it means to have a theory about the nature of law, and also in the direction of wondering about the interaction of legal theory and practical reasoning—reasoning about how we should best act. The article offers reasons to question whether law in fact makes claims, at least in any (...) straightforward sense. Even if one brackets that matter, there are reasons to raise doubts about what is in fact implicit in the act of lawmaking. At one level, an act of lawmaking does implicitly assert the authority to act in that way. Whether it also implies that the content of the action is morally good, or at least not clearly morally bad, is, at a minimum, a harder question. (shrink)

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 (...) an ideal or critical dimension. This is not without reason. For as with all law, constitutional rights necessarily raise, in connection with principles theory, a claim to correctness. This claim to correctness leads to a necessary connection between constitutional rights understood as positive rights and human rights understood as moral rights, and, with this, to the dual nature of constitutional rights. (shrink)

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, (...) thus understood, imply for the relation between legal certainty and correctness. Here three issues will be considered: first, the Radbruch formula as an answer to the problem of extreme injustice; second, the special case thesis, which claims that legal argumentation is a special case of general practical argumentation; and, third, the problem of the judicial development of the law. (shrink)

According to Robert Alexy’s dual‐nature thesis, “law necessarily comprises both a real or factual dimension and an ideal or critical one.” I will suggest, first, that various dualisms need to be distinguished, in particular the empirical and the normative, the real and the ideal, the formal (procedural) and the substantive; second, that the dualism of the empirical and the normative and, within the latter, of the real and the ideal “ought,” is not specific to law but pertains to any normative (...) system; and, third, that a dualism that distinguishes law from morality is a dualism of formal and substantive principles, which also serves to explain the authoritative character of law. (shrink)

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 (...) law in order to achieve legal certainty. Without this, law would not be as perfect as it could possibly be. But it says, at the same time, that this alone would not be enough to fulfill the claim to correctness. The claim to correctness refers not only to the real dimension of law, defined by statutes, precedents, and prevailing doctrines, but also to its ideal dimension, defined, first and foremost, by justice. The special case thesis is my oldest thesis. It has remained an essential element of my system over the years. Its connection with four other theses—the Radbruch formula, the human rights thesis, the idea of deliberative democracy, and principles theory—does not change this at all. On the contrary, this connection has lent greater strength to the special case thesis. (shrink)

ABSTRACT Many prominent legal philosophers believe that law makes some type of moral claim in virtue of its nature. Although the law is not an intelligent agent, the attribution of a claim to law does not need to be as mysterious as some theorists believe. It means that law-making and law- applying acts are intelligible only in the light of a certain presupposition, even if a lawmaker or a law-applier subjectively disbelieves the content of that presupposition. In this paper, I (...) aim to clarify what type of moral claim would be suitable for law if law were to make a claim to be morally justified. I then argue that legal practice is perfectly intelligible without moral presuppositions - that is, that the law does not necessarily make moral claims. RESUMO Muitos filósofos do direito proeminentes acreditam que o direito levanta algum tipo de pretensão moral em virtude de sua natureza. Embora o direito não seja um agente inteligente, a atribuição de uma pretensão ao direito não precisa ser tão misteriosa como alguns teóricos acreditam que seja. Significa que atos pelos quais fazemos e aplicamos leis são inteligíveis apenas à luz de uma certa pressuposição, mesmo se um legislador ou um aplicador do direito não acreditar subjetivamente no conteúdo dessa pressuposição. Neste artigo, eu busco esclarecer que tipo de pretensão moral seria adequada ao direito se o direito levantasse a pretensão de ser moralmente justificado. Eu então argumento que a prática jurídica é perfeitamente inteligível sem pressuposições morais - isto é, que não é necessário que o direito levante pretensões morais. (shrink)

This paper offers a critical assessment of the way the influential “conception of law as a shared activity” explains the normative component of law in general and legal obligation in particular. I argue that the conception provides a bipartite account of legal obligation: we have full-blooded legal obligation, carrying genuine practical force, and legal obligation in a perspectival sense, the purpose of which is not to engage with us in practical reasoning, but simply to state what we ought to do (...) if we should take the perspective of individuals subject to the jurisdiction of the legal system. This structural feature makes the whole account disjointed, giving it a lack of unity from which stem what I take to be its three main problems, namely, its limited scope, its failure to recognize the moral features of obligation when made to arise out of law as a shared activity, and its failure to illustrate the sense in which law is widely recognized to be a practical institution. (shrink)