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  1. The Folk Concept of Law: Law Is Intrinsically Moral.Brian Flanagan & Ivar R. Hannikainen - 2022 - Australasian Journal of Philosophy 100 (1):165-179.
    ABSTRACT Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the ‘positivist’ claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion (...)
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  • Negotiating the Meaning of “Law”: The Metalinguistic Dimension of the Dispute Over Legal Positivism.David Plunkett - 2016 - Legal Theory 22 (3-4):205-275.
    One of the central debates in legal philosophy is the debate over legal positivism. Roughly, positivists say that law is ultimately grounded in social facts alone, whereas antipositivists say it is ultimately grounded in both social facts and moral facts. In this paper, I argue that philosophers involved in the dispute over legal positivism sometimes employ distinct concepts when they use the term “law” and pick out different things in the world using these concepts. Because of this, what positivists say (...)
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  • Legal Certainty and Correctness.Robert Alexy - 2015 - Ratio Juris 28 (4):441-451.
    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, (...)
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  • Practical‐Political Jurisprudence and the Dual Nature of Law.Sarah Nason - 2013 - Ratio Juris 26 (3):430-455.
    Law contains many dualities, though most, if not all, of these dualities resolve into one complex puzzle: To what extent is law a matter of pure social facts, or moral value untethered to social facts? I argue that each concept of law reconciles this duality in a different way on the basis of certain beneficial consequences that might result. Instead of pitting concepts against one another universally, we should accept that the balance between law's social fact and moral value dimensions (...)
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  • European Problems in Understanding Human Dignity.Marek Piechowiak - 2022 - Encyclopedia of Contemporary Constitutionalism.
    (Introduction) Dignity is regarded today as a fundamental, or even the most fundamental, value across legal systems, at both international and national levels. It seems to be one of the values which provide a common axiological basis for different constitutional traditions across Europe (de Lange 2007: esp. 3-6). Moreover, taking account of its prominent place in the law of the United Nations, human dignity is one of the values on which the international community rests. The expression “human dignity” belongs to (...)
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  • Kant on Legal Positivism and the Juridical State.Joel T. Klein - 2021 - Kant Yearbook 13 (1):73-105.
    In this paper I argue that Kant’s political and juridical philosophy justifies a type of normative legal positivism that implies specific notions of law and legal freedom which determine and restrict the sphere of action of judges and jurists. Finally, I defend that, according to Kant’s practical philosophy, the normative connection between justice and law is not supposed to be carried out at the juridical level, as a meta-juridical theory, but at the political one, making it a meta-political theory.
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  • Kant’s Non-Positivistic Concept of Law.Robert Alexy - 2019 - Kantian Review 24 (4):497-512.
    The main thesis of this article is that Kant’s concept of law is a non-positivistic one, notwithstanding the fact that his legal philosophy includes very strong positivistic elements. My argument takes as its point of departure the distinction of three elements, around which the debate between positivism and non-positivism turns: first, authoritative issuance, second, social efficacy, and, third, moral correctness. All positivistic theories are confined to the first two elements. As soon as a necessary connection between these first two elements (...)
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  • The dual nature of law.Robert Alexy - 2010 - Ratio Juris 23 (2):167-182.
    The argument of this article is that the dual-nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation (...)
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  • On the concept and the nature of law.Robert Alexy - 2008 - Ratio Juris 21 (3):281-299.
    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 (...)
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  • Why the law is what it ought to be.T. R. S. Allan - 2020 - Jurisprudence 11 (4):574-596.
    When legal practice satisfies certain modest conditions of legitimacy, affirming the equal dignity of persons, the law is what it ought to be. It provides the morally appropriate basis for the reso...
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  • Robert Alexy and the Dual Nature of Law.Torben Spaak - 2020 - Ratio Juris 33 (2):150-168.
    Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophical questions. In this article, I consider some of these questions, such as what the meaning of the correctness thesis is, whether Alexy's discourse theory supports this thesis, and whether the thesis is defensible; whether Alexy's argument from anarchy and civil war supports the claim that law of necessity has a real dimension; and what the implications are of the use of moral arguments, such as the (...)
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  • Scott J Shapiro between Positivism and Non-Positivism.Robert Alexy - 2016 - Jurisprudence 7 (2):299-306.
    In his book Legality Scott J Shapiro presents a large-scale and sophisticated attempt to defend legal positivism in its most outspoken form, namely exclusive legal positivism. This, however, does not mean that morality plays no role in Shapiro’s analysis of the nature of law. On the contrary, he connects law with morality in myriad ways. This gives rise to the question of whether Shapiro’s theory of the nature of law is truly positivistic. In the article I argue that Shapiro’s theory (...)
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  • Symposium on Justifying Injustice. Legal Theory in Nazi Germany (CUP 2020): responses to critics.Herlinde Pauer-Studer - 2023 - Jurisprudence 14 (2):291-302.
    In his seminal work The Concept of Law, H. L. A. Hart observed that the ‘law of every modern state shows at a thousand points the influence of both the accepted social morality and wider moral idea...
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  • Disobedience of Judges as a Problem of Legal Philosophy and Comparative Constitutionalism: A Polish Case.Mateusz Pilich - 2021 - Res Publica 27 (4):593-617.
    The article takes up the difficult problem of the so-called disobedience of judges against the background of the experiences of the Polish departure from constitutional democracy in 2015–2020. The special role and responsibility of a judge in the state imposes restrictions on her freedom of opinion in the public sphere. Openly manifesting opposition to government policy, which in the case of an ordinary citizen is only the implementation of human rights and freedoms, may be described as controversial and contrary to (...)
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  • Natural Law Theories.Jonathan Crowe - 2016 - Philosophy Compass 11 (2):91-101.
    This article considers natural law perspectives on the nature of law. Natural law theories are united by what Mark Murphy calls the natural law thesis: law is necessarily a rational standard for conduct. The natural law position comes in strong and weak versions: the strong view holds that a rational defect in a norm renders it legally invalid, while the weak view holds that a rational defect in a legal norm renders it legally defective. The article explores the motivations for (...)
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  • Discourse, Principles, and the Problem of Law and Morality: Robert Alexy's Three Main Works.Martin Borowski - 2011 - Jurisprudence 2 (2):575-595.
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  • Radbruch as an Affirmative Holist. On the Question of What Ought to Be Preserved of His Philosophy.Dietmar von der Pfordten - 2008 - Ratio Juris 21 (3):387-403.
    . Gustav Radbruch is one of the most important German-speaking philosophers of law of the twentieth century. This paper raises the question of how to classify Radbruch's theories in the international context of legal philosophy and philosophy in general. Radbruch's work was mainly influenced by the southwest German school of Neo-Kantianism, represented by Windelband, Rickert, and Lask. Their theories of culture and value show an affirmative-holistic understanding of philosophy as a source of wisdom and meaningfulness. Kant, on the other hand, (...)
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  • A Difficult Legacy: Human Dignity as the Founding Value of Human Rights.Paweł Łuków - 2018 - Human Rights Review 19 (3):313-329.
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  • The Role of the Jurist: Reflections around Radbruch.Roger Cotterrell - 2013 - Ratio Juris 26 (4):510-522.
    Many different kinds of professionals work with law, but often they seek to use law for particular governmental or private purposes, they focus on some specific areas or aspects of its creation, interpretation or application, or they study it for its interest judged by criteria that are given by fields of scholarly practice outside it. Is there a special significance for a role exclusively concerned with analysing, protecting and enhancing the general well-being or worth of law as a practical idea? (...)
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  • The Planning Theory of Law II: The Nature of Legal Norms.David Plunkett - 2013 - Philosophy Compass 8 (2):159-169.
    This paper and its companion (‘‘The Planning Theory of Law I: The Nature of Legal Institutions’’) provide a general introduction to Scott Shapiro’s Planning Theory of Law as developed in his recent book Legality. The Planning Theory encompasses both an account of the nature of legal institutions and an account of the nature of legal norms. The first paper concerns the account of legal institutions. This paper concerns the account of legal norms.
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  • How to Be a Transnational Jurist: Reflections on Cotterrell’s Sociological Jurisprudence.Sanne Taekema - 2019 - Ratio Juris 32 (4):509-520.
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  • On Alexy's Argument from Inclusion.Peng-Hsiang Wang - 2016 - Ratio Juris 29 (2):288-305.
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  • Schauer's Anti‐Essentialism.Torben Spaak - 2016 - Ratio Juris 29 (2):182-214.
    In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties, and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti-essentialism is a defensible position fails, because his one main argument is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument is false.
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  • Positivism, Legal Validity, and the Separation of Law and Morals.Giorgio Pino - 2014 - Ratio Juris 27 (2):190-217.
    The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...)
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  • The Inevitability of Moral Evaluation.Peter Rijpkema - 2011 - Ratio Juris 24 (4):413-434.
    According to contemporary legal positivism, law claims to create obligations. In order for law to be able to create obligations, it must be capable of having authority. Legal positivism claims that for law to be capable of having authority, it only has to meet non-moral or non-normative conditions of authority. In this paper it is argued that law can only be capable of having authority if it also meets certain normative conditions. But if something must meet certain normative conditions in (...)
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  • Ties that Sever: Losing the Right to Belong in Denmark.Kerstin Bree Carlson - forthcoming - Law and Critique:1-22.
    In 2018, the Danish Supreme Court revoked Adam Johansen’s citizenship in conjunction with his conviction for terrorism. Applying a proportionality test adapted from European Court of Human Rights (ECtHR) jurisprudence for naturalised, not natural, citizens, the Danish court determined that Johansen’s Muslim faith tied him to Tunisia, his father’s country, rather than to Denmark. In March 2022, the ECtHR unanimously upheld this judgment. In so doing, the ECtHR solidified an emerging standard in cases of citizenship revocation for natural citizens, which (...)
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  • Legality policies and theories of legality: From bananas to radbruch's formula.Giovanni Sartor - 2009 - Ratio Juris 22 (2):218-243.
    Abstract. In this paper I shall take an inferential approach to legality (legal validity), and consider how the legality of a norm can be inferred, and what can be inferred from it. In particular, I shall analyse legality policies, namely, conditionals conferring the quality of legality upon norms having certain properties, and I shall examine to what extent such conditionals need to be positivistic, so that legality is only dependant on social facts. Finally, I shall consider how legality is transmitted (...)
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  • Why International Criminal Law Can and Should be Conceived With Supra-Positive Law: The Non-Positivistic Nature of International Criminal Legality.Nuria Pastor Muñoz - 2023 - Criminal Law and Philosophy 17 (2):381-406.
    International criminal law (ICL) is an achievement, but at the same time a challenge to the traditional conception of the principle of legality (_lex praevia_, _scripta_, and _stricta_ – Sect. 1). International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying _ex post facto_ criminal laws. This approach, the relaxation of the concept of law (...)
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  • The reception of Robert Alexy’s work in Anglo-American jurisprudence1.Julian Rivers - 2018 - Jurisprudence 10 (2):133-150.
    ABSTRACTAt first sight, the work of the German legal philosopher and constitutional theorist, Robert Alexy, appears to offer a welcome counter-example to the general insulation of Anglo-American ju...
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  • A Critique of Alexy’s Claim to Correctness.Brian H. Bix - 2020 - Ratio Juris 33 (2):124-133.
    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 (...)
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  • Pauer-Studer and Radbruch’s second thesis.Lars Vinx - 2023 - Jurisprudence 14 (2):282-290.
    Gustav Radbruch’s famous article Statutory Lawlessness and Supra-Statutory Law1 puts forward two key theses. The first of these, which will not concern me here, is a claim about the nature of law....
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  • ¿Fue auschwitz legal? Legalidad, exterminio Y positivisimo jurídico.Antonio Peña Freire - 2016 - Isonomía. Revista de Teoría y Filosofía Del Derecho 45:11-46.
    Con la intención de aclarar el significado de la legalidad y de sus principios, el artículo desarrolla aquellos aspectos de la concepción del derecho de Lon Fuller que demuestran que legalidad y exterminio son incompatibles. Después, cuestiona los planteamientos defendidos por los iuspositivistas en el debate sobre el derecho nazi, porque se basan en una incorrecta identificación entre derecho y orden social, lo que lleva a los iuspositivistas a valorar el derecho exclusivamente en función de su utilidad para el gobernante (...)
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  • A Symposium on Nazi Law.Julian Fink, Carolyn Benson, Kristen Rundle, David Fraser, Herlinde Pauer-Studer & Raymond Critch - 2012 - Jurisprudence 3 (2):341-463.
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  • Radbruch as an Affirmative Holist. On the Question of What Ought to Be Preserved of His Philosophy.Dietmar Vonderpfordten - 2008 - Ratio Juris 21 (3):387-403.
    Gustav Radbruch is one of the most important German‐speaking philosophers of law of the twentieth century. This paper raises the question of how to classify Radbruch's theories in the international context of legal philosophy and philosophy in general. Radbruch's work was mainly influenced by the southwest German school of Neo‐Kantianism, represented by Windelband, Rickert, and Lask. Their theories of culture and value show an affirmative‐holistic understanding of philosophy as a source of wisdom and meaningfulness. Kant, on the other hand, belongs (...)
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  • Transparency of Approaches to International Law: A Short Story of an Unsung Hero.Michał Stępień - 2021 - Studies in Logic, Grammar and Rhetoric 66 (2):309-320.
    This article is about the problem of non-disclosure of an assumed method and approach to international law. That makes some real and current issues of international more difficult to grasp – and how to debate about something if there is a misunderstanding of the basics? The problem is depicted with two examples: the attitude of international law toward the statehood of Taiwan along with the on-going development of the Responsibility to Protect doctrine. Both reveal the clash between so-called black-letterism and (...)
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