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)

Two claims lay the foundation for Beyleveld and Brownsword’s legal theory. The first says that immoral laws cannot be law, the second that rights to freedom and welfare can be proven to be logically necessary given merely the phenomenon of agency. The author argues that both claims are too strong. The first is an overidealization of law, which fails to do justice to its double nature as a real as well as an ideal phenomenon. The second must fail, for a (...) moral “ought” cannot be deduced from a merely instrumental “ought.”. (shrink)

This article provides a critical introduction to an issue fo Ratio Juris concerend with two contrasting schools of legal idealism: the so-called Sheffield School (Beyleveld, Brownsword and colleagues) and the “discourse ethics” school of Habermas and Alexy. The article focusses on four issues: (1) whether a "claim to correctness" is a necessary feature of law, (2) the connection between correctness and validity, (3) Alexy's argument for a "qualifying connection" between law and morality, and its counterpart in the Sheffield School's approach, (...) and (4) Alexy's case for the "Radbruch formula": that "extreme injustice is not law”. While rejecting both versions of the case for legal idealism, I argue that both schools offer vaulable, and broadly similar, insights into what makes a legal system morally legitimate. (shrink)

This article offers a combined reading of Karl Löwith’s and Leo Strauss’s critique of social theory from the point of view of the natural law tradition broadly understood. Within the context of a growing interest in revisiting social theory’s debt to natural law, the piece seeks to unfold the connections between the two traditions without searching to restore any kind of natural law. Rather, it looks at their relationships as one of Aufhebung — the suspension and carrying forward — of (...) natural law premises within modern social theory. The works of these two writers point against conventional wisdom within social theory: Löwith’s secularization thesis calls into question the view of the irreligious nature of modernity’s historical break as well as its faith in immanent progress; Strauss’s reconstruction of natural law (right) gives due credit to the non-religious origins of modernity but at the price of withdrawing even more autonomy from any modern claim to self-assertion. Although some compatibility is recognizable in their critiques, I shall also be arguing that their substantive results point to opposite directions. A critical distance must also be maintained from their interpretations in the spirit of reinvigorating the project of modern social theory. (shrink)