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Are there any elements of juridicity beyond positive law in Robert Alexy’s non-positivism?

Petar Popović

Abstracts

The aim of this article is to assess Alexy’s non-positivist account of the law’s dual nature from the viewpoint of the question of whether he permits the existence of the elements of juridicity that do not meet the criteria for identifying valid positive law. An affirmative answer to that question would fit within the ordinary non-positivist stance that denies the positivists’ thesis that “all law is positive law”. In the article, I argue that Alexy, however, systematically denies the existence of non-posited elements of juridicity. I first explore Alexy’s foundational commitment to the social thesis in describing law’s nature. Next, I present his claim that the principles of justice cannot themselves constitute law without meeting the requirements of source-based positivity of legal norms. Finally, I clarify that, regardless of the non-positivist structure of his crucial arguments, Alexy does not ultimately hold that law may be “in” non-posited realities.

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1 Introduction

  • 1 See, for example, Alexy 2021a: 9-10. For the claim that Alexy’s legal-philosophical account does “n (...)
  • 2 Alexy 2002: 5.
  • 3 Alexy 2021b: 64.
  • 4 Alexy and Marmor 2005: 770.
  • 5 Alexy 2002: 3.
  • 6 Alexy 2002: 4.
  • 7 Alexy 2021c: 36.
  • 8 “In the definition of law, the factual dimension is represented by the elements of authoritative is (...)

1Robert Alexy, surely one of the most prominent legal philosophers of the last half century, frequently highlights that his research aims to explain nothing less than the very nature or concept of law,1 that is, the essential features of the legal phenomenon at the highest level of analysis. The line of argument at this level of analysis always denotes an answer to the fundamental legal-philosophical question concerning the nature of law, variously worded as, “what is law?”,2 “what is the essence of law?”,3 or “what it is that is necessarily included in the concept of law?”4 This last version of the question comes closest to capturing Alexy’s approach to understanding law’s nature, especially if we know that, as he says, “the central problem in the debate surrounding the concept of law is the relationship of law and morality”.5 Since his solution to this problem is that “the concept of law is to be defined such that moral elements are included”,6 the main direction of Alexy’s legal-philosophical analysis is determined by the question of the ways in which morality may be said to be necessarily included in the concept of law. Thus, in his view, as is well known, law has a dual nature: “both a real or factual dimension and an ideal or critical one” are “necessarily” included in the ontology of law.7 The “real” or “factual” dimension corresponds to law’s source-based social facticity or positivity, while the “ideal” or “critical” dimension denotes the inclusion and continuous presence of moral elements, even of substantive morality, in law’s nature.8

  • 9 Alexy 2021c: 36.
  • 10 Alexy 2002: 7.
  • 11 Alexy and Marmor 2005: 769.

2Alexy claims that his proposal results in a “non-positivistic concept of law”9 and that its fundamental aspects represent versions of a “classic non-positivistic argument”10 (“non positivism” is, as he clarifies, synonymous with “anti-positivism”11). In a sense, his assessment is correct, since the argument in favour of a necessary inclusion of certain evaluative features that also comprise the values of substantive morality in the very nature of law is indeed in contrast with a central tenet of legal positivism, namely, the thesis on the separation or at least the separability (i.e., no necessary connection) between law and substantive morality. In a framework where the legal-philosophical analysis amounts to the inquiry of whether and how morality may (or may not) be said to be included in the nature of law, Alexy should certainly be enlisted among non-positivists.

  • 12 Alexy and Marmor 2005: 769. See also Alexy 2021b: 64.
  • 13 For examples of this line of argument, see Spaak and Mindus 2021: 9-11. Some authors, perhaps most (...)
  • 14 Alexy (2021b: 64) certainly thinks that they are: “In order to answer the question of what the esse (...)

3However, I would like to advance and explore certain arguments according to which Alexy’s non-positivism or anti-positivism is more limited than he seems to acknowledge. To ground these arguments, I will have to assess Alexy’s theory from a viewpoint that is different from the question of whether and how morality may be included in law. In the past few decades, the elucidation of law’s nature from the viewpoint of the question “is morality somehow in law?”, has indeed become more complex and less conducive to clear and definitive conclusions. Alexy himself noticed that “positivism nowadays says a lot about the close relation between law and morality”,12 and, indeed, some contemporary legal positivists argue that there are certain – purely systemic, procedural, formal, or extra-conceptual (i.e., essentially external to what law is) – important connections between law and morality.13 Perhaps the fundamental aspects of the question of the (no) necessary connection between the content of law and substantive morality, and the corresponding dependence of the former on the latter for the constitution of the juridical status of legal norms, are still sufficiently intelligible for a clear demarcation between positivism and non-positivism.14 Regardless, I propose that there exists a parallel strategy of assessing an account of the nature of law for categorizing that account as pertaining to the family of positivistic or anti-positivistic legal theories, that is, a way that is irreducible to both the separability and the necessary connection thesis.

  • 15 Green 2021: 39.
  • 16 Green 2021: 39-40 (emphasis original). For Green’s earlier claim that “someone who thinks all law i (...)
  • 17 Mackie 1977: 232-33 (emphasis added).

4For the purposes of this paper, it is best to start the presentation of this parallel way by identifying another central tenet of legal positivism, ideally with the help of a prominent positivist. Thus, Leslie Green holds that “it is hard to find contemporary positivists who still hold […] that there are no necessary connections between law and morality”.15 Nonetheless, as Green adds, it is possible to identify another central claim that assists us in infallibly identifying a legal positivist: “But one doctrine remains essential: any theory of law that a positivist would be willing to call ‘positivist’ endorses a version of the following claim: All law is positive law”.16 John L. Mackie highlights this formulation of a central tenet of legal positivism with even more precision: “Law is, as I have maintained that morality also is, a human product. […] This amounts to saying that all law is positive law: it is law wholly in and by being ‘posited’ by some society or institution”.17

  • 18 Alexy 2021a: 10.
  • 19 Alexy 2021d: 97.

5This central tenet of legal positivism answers a legal-philosophical question different from the query of whether and how morality (or anything else, really) is, so to speak, “in” law. Here is a simple formulation of this parallel question: What is law “in”? The answers to this latter question seek to explain whether and how exactly it is possible to claim that law is identifiable in certain realities or entities and only in those (thus, not in other) realities and entities. Alexy is familiar with this basic legal-philosophical question, since he notes that one of the problems around which the arguments about the nature of law revolve is denoted by the following query: “In what kind of entities does the law consist, and how are these entities connected such that they form an overarching entity we call ‘law’”?18 An important aspect of same question is echoed in another question that Alexy seeks to answer: “Is there an outermost border of law?”19 In other words, is it possible – and according to what criteria – to definitively identify the existence of law in certain realities or entities and to assert that there is a limit (an “outermost border”) beyond which law can no longer be found in these or other realities and entities, thereby categorizing these latter as “non-law”?

  • 20 Throughout the paper I will use the term “juridicity” (or the adjective “juridical”) to denote the (...)

6As we have seen, the positivist answer to the question of what law is “in” is that all law is necessarily posited law, that is, law’s nature is, as Mackie claims, wholly “in” posited law. Said differently, what is not posited is not law, not part of the legal world, it is “non-law”. Now, what would constitute an anti-positivist position with regard to this positivist tenet? I propose that an anti-positivist position amounts to the claim (1) that there are, indeed, certain elements of genuine juridicity20 (and not merely morality) beyond, parallel to, or not necessarily “in” posited law, that is, beyond the scope of the criteria for recognizing or identifying valid positive law, and (2) that these non-posited elements of juridicity significantly modify the ontological fabric of law. This anti-positivist position would then have to explain what these elements of juridicity are “in”, according to what criteria we may identify them and delimit them from “non-law”, and how exactly they alter law’s ontological features.

  • 21 Hart had said that […] legal systems contain a fundamental, if sometimes complex, social ‘rule of (...)
  • 22 See Hervada 2020: 7-30. Interestingly enough, in his natural-law account of law’s nature John Finni (...)

7Ronald Dworkin’s theory of law is one example of such an anti-positivist position. In Dworkin’s view, law is not only “in” posited legal rules, but also “in” those non-posited moral-evaluative features – the so-called legal principles that point to certain supra-positive political rights – that may be discovered beyond the boundaries of the settled criteria for identifying valid positive law.21 The account of law’s nature provided by one strand of the Thomistic natural-law theory of law, namely, Thomistic juridical realism, represents another example of this anti-positivist stance. According to that account, law is not only “in” certain “things” or realities that are constituted as the objects of justice by those posited legal rules that are identified according to the criteria of validity of positive law, but also and pre-eminently “in” all those outwardly manifestable and essentially interpersonal “things” or realities that are attributed by supra-positive principles of justice to their titleholders and consequently legally owed by all those persons who are in a position to at least potentially interfere with that attribution.22

8In this paper, I will explore Alexy’s answer to the question of what law is “in” and thereby evaluate whether his view on law’s nature is genuinely anti-positivist, that is, whether he significantly differs from legal positivists in their claim that “all law is positive law”. This assessment of Alexy’s theory must yield a definitive reply to the question of whether he recognizes the existence of any elements of genuine juridicity beyond the criteria for the identification of valid positive law.

9In the first section of the paper, I will explore Alexy’s foundational commitment to the claim that the dual nature of law, besides its ideal or moral aspects, necessarily comprises its positivity or social facticity, that is, his dependence on the source thesis. This commitment, crucial for the aim of my paper, is sufficiently explicit and clear in Alexy’s writings, but the full range of its consequences for his account of law’s nature, especially with regard to the main question of this paper, has not as yet been fully explored. Next, I will analyse the extent to which his account of the nature of law depends on his understanding of justice, including substantive justice, the core of which consists in a set of basic human rights, in order to show that this component of his theory does not amount to supra-positive elements of juridicity. Finally, I will address the arguments from Alexy’s theory that could perhaps be presented in favour of the claim that he ultimately supports the existence of certain elements of juridicity beyond the reach of the criteria for the identification of valid positive law, namely, (1) his occasional mention of a “supra-positive law” that causes the collapse of valid but radically unjust legal norms into “non-law”, (2) his doctrine of legal principles, and (3) his thesis that law is a part or a special case of general practical discourse, which is also related to aspects of practical reasoning and morality (and that, in this sense, law is “in” morality). Taken together, these stages of inquiry will lead to the conclusion that Alexy’s system does not permit him to support the claim for the existence of non-posited elements of genuine juridicity and that, regardless of his endorsement of non-positivism, he may be said to subscribe to the central tenet of legal positivism according to which, ultimately, “all law is positive law”.

2 The importance of law’s positivity in Alexy’s theory

10Regardless of his strong emphasis on the role of law’s ideal dimension, which constitutes an essential feature of the nature of law that lays the foundations for the necessary intralegal connection between law and morality, Alexy is equally committed to the thesis that law’s nature indispensably also comprises its real dimension, that is, its source-based social facticity or positivity. His somewhat peculiar conceptualization of law within the framework of the duality of law’s real-ideal nature may cause his commentators and critics to focus predominantly on the analysis of law’s ideal dimension and on the conditions for the inclusion of that moral-evaluative dimension in the concept of law. However, a comprehensive grasp of his theory requires taking into serious consideration his explicit commitment to the full range of law’s essentially posited features.

  • 23 Alexy and Marmor 2005: 769-70. “This version of non-positivism shares with positivism a sources the (...)
  • 24 Alexy, 2005: 738. “To be sure, the version of non-positivism that I defend contains strong positivi (...)

11Thus, Alexy highlights that his position belongs to the so-called “source family” since it “includes the thesis that law must be based on sources”.23 He further confirms that “positivism and non-positivism share what [Joseph] Raz calls the ‘social thesis’, but they do it in different ways” – the main difference being that non-positivism advocates that the “existence and content of law necessarily depends not only on social facts [as positivists maintain] but also on moral ideas”.24 Notwithstanding this evident and significant difference, Alexy’s non-positivism subscribes to the thesis that law must necessarily be “embodied”, so to speak, in source-based social-factual features, that is, that it must be posited, and he is, as we have already seen, quite explicit about his awareness that he shares this position with legal positivists.

  • 25 “In the definition of law, the factual dimension is represented by the elements of authoritative is (...)
  • 26 Alexy 2021e: 29; Alexy 2021c: 36.
  • 27 Alexy 2021e: 24. “My thesis is that a […] construction that, from the very beginning, gives more we (...)
  • 28 Alexy 2021b: 64.
  • 29 Alexy 2021b: 79.
  • 30 Alexy 2002: 4.

12Law’s positivity is thus not an optional feature of the existence of the juridical phenomenon but an essential and indispensable aspect of its nature. From this it follows that, for Alexy, law may be found only in those entities and realities that possess the features of law’s positivity, namely, the features of source-based social-factual “authoritative issuance” and “social efficacy”.25 When explaining that law’s positivity is an indispensable character of its nature, Alexy frequently highlights, (1) that positivity is a “necessary” property of law,26 (2) that real and ideal dimensions “belong to law from the beginning”,27 (3) that the factual dimension is “internally connected” with the ideal dimension,28 or (4) that “law would not be law” if it did not comprise both the real and the ideal dimension.29 The inclusion of moral elements in the definition of the concept of law, he claims, never amounts to the thesis according to which a non-positivist would aim to prescind from law’s positivity: “No serious non-positivist is thereby excluding from the concept of law either the element of authoritative issuance or the element of social efficacy”.30

  • 31 As Spaak (2020: 152) also notes, it is precisely “the social thesis which constitutes the backbone (...)
  • 32 Alexy 2021c: 42.
  • 33 Alexy 2021d: 91.
  • 34 Alexy 2021d: 91.
  • 35 Alexy 2021d: 91.
  • 36 Alexy 2002: 51-53; Alexy 2021c: 43.

13While it is true that non-positivists do not necessarily exclude the element of positivity from their explanations of the properties of law, it is also true, as we saw in the previous section, that one would normally expect an anti-positivist stance to advocate (or at least to hypothesize) the existence of the juridical phenomenon outside of the realm of posited law, that is, to refute the positivist claim that “all law is positive law”.31 What are Alexy’s reasons for defending the element of positivity as something inherent to law’s very nature, and thus for bringing his theory into close proximity with the positivists’ claim that the nature of law is always necessarily manifested in posited law? His justification begins with the argument that the sole ideal dimension, namely, the sphere of morality (or, as he says, moral correctness), is “insufficient” for the existence of the juridical phenomenon, which is why it “necessitates as its complement the existence of the real, that is, the positive dimension of law”.32 The “insufficiency” of the sole moral-evaluative features for their constitution as genuine law stems, as Alexy’s claims, from the fact that “the idea of pure ideality” (or “a purely ideal system of reasons for action”) amounts to nothing more than “moral” knowledge and reasoning.33 Now, the domain of moral reasoning is, or so Alexy claims, inherently inadequate for constituting law because in that domain, (1) “there are a great many practical questions in which no agreement can be arrived at, not even between reasonable persons”, (2) “spontaneous compliance is not enough” for the enforcement of what is only ideal, and thus (3) it is necessary to avoid “anarchy and civil war [by] achieving the advantages of social coordination and cooperation”.34 For these reasons, the institution of the social-factual authoritative issuance of reasons for action, coercive mechanisms for the social efficacy of their enforcement, and the associated forms of legal organization are not only purposeful on the basis of mere utility, but constitute a moral value in itself,35 namely, the value of legal certainty.36

  • 37 Alexy 2002: 13.
  • 38 Alexy 2002: 46.
  • 39 Alexy 1999a: 23.
  • 40 Alexy 2021d: 99. This position is described by Alexy (1999a: 23) as the “most extreme antipode to l (...)
  • 41 Alexy 2007: 335.
  • 42 Alexy 2012b: 323.

14Alexy persistently critiques proposals for the constitution of law’s nature according to the sole reference to the elements of the ideal dimension. He writes: “Attaching no significance whatsoever to authoritative issuance and social efficacy, focusing exclusively on correctness of content, one arrives at a concept of law purely reflective of natural law or the law of reason”,37 and this concept, in his view, is not permissible for the reasons presented above. He warns that the excessive focus on the moral elements in describing law’s nature “runs the risk of uncritically identifying legal with moral requirements”.38 This risk is especially operative in a position that he calls “exclusive non-positivism”, which is held by those who “define the law exclusively by its substantial correctness”39 and thereby “give precedence to justice over legal certainty in all circumstances”.40 The logic of his argument leads Alexy to formulate a rather strong critique of this legal-philosophical position: “Owing to the inherently controversial nature of moral issues, exclusive non-positivism would be tantamount to anarchism”.41 Inversely, in a hypothetical situation wherein “everyone were to recognize in all cases what is correct, and if all citizens were to comply with what they recognize as correct, law would be redundant”; but, as Alexy notes, “these two conditions […] are utopian”.42

  • 43 Alexy 2021d: 97.

15In sum, without its connectedness to law’s real or factual dimension according to the demands of positivity, the ideal or moral dimension remains essentially non-juridical and it does not of itself possess sufficient conditions for the constitution of the juridical phenomenon. Thus, it may be said that, at least at this point of his theoretical account, the absence of positivity generally denotes what he refers to as crossing the “outermost border of law”.43

3 The juridical status of justice in Alexy’s account of the ideal dimension of law

  • 44 For his claim that “the necessity of positivity” does not “imply positivism”, see Alexy 2021c: 43.
  • 45 Alexy 2002: 4; Alexy 2005: 738; Alexy 2021c: 83.
  • 46 Alexy 2005: 738. See also Alexy and Marmor 2005: 770.
  • 47 Alexy 2021a: 15.
  • 48 Alexy 2005: 742.

16What distinguishes Alexy from legal positivists is not, therefore, the degree of importance that he attributes to the real or factual dimension of law, that is, his commitment to the necessity of positivity for the constitution of the juridical phenomenon.44 Rather, it is his argument that the nature of law also necessarily includes the ideal dimension.45 He refers to this position as the “necessarily inclusive social thesis”,46 the object of the “necessary inclusion” being the ideal or moral dimension. Again, the framework that represents the backbone of this position is organized as an answer to the question of what is necessarily included in law’s ontological fabric; Alexy’s answer is that morality is necessarily included in the very nature of law,47 which, in turn, to be truly law, must be ontologically structured according to the properties of positivity. Thus, possible tensions that may exist between the real and the ideal dimension of law are, according to Alexy, “no longer tensions between the law and morality qua something outside the law, but tensions inside the law”48 that is essentially posited.

  • 49 Most notably, justice figures as the central evaluative feature in the anti-positivist accounts of (...)

17For a better understanding of these tensions between the two dimensions of law’s nature, it is important to know what forms part of the content of the ideal dimension of law. There are certainly multiple ways of presenting and assessing Alexy’s account of the elements of law’s ideal dimension. For the purposes of this paper, the most efficient way is to understand the status of justice in his description of the ideal dimension of law, since justice constitutes a central feature in various prominent anti-positivist claims in favour of the existence of elements of juridicity beyond the limits of posited law.49

  • 50 Atienza Rodríguez and Alexy 2001: 684.
  • 51 Alexy 2021e: 31-32; Alexy 2021c: 37, 39-40, 43; Alexy 2021d: 91.
  • 52 Alexy 2003: 161.
  • 53 Alexy 2003: 161.
  • 54 Alexy 2003: 163. For echoes of this definition in his other texts, see Alexy 2021c: 39-40; Alexy 20 (...)
  • 55 Alexy 2003: 161.

18The idea of justice, in Alexy’s estimation, denotes the evaluative point of law: “law necessarily includes an aspiration towards justice”.50 In this sense, justice may be adequately described as the ordering principle for the moral content included in the ideal dimension of law.51 Thus, for a complete understanding of the nature of law it is imperative to comprehend the precise content and the ordering function of the legally relevant idea of justice in Alexy’s system. In a text that contains his most complete account of the idea of justice, Alexy arrives at a working definition of justice by starting from an analysis of the classical Roman jurists’ formula according to which “justice consists in giving to each that which is his own (suum cuique tribuere)”.52 It is precisely this formula, which he seems to hold in high esteem, that marks out the distinctive features that specify justice within the broader domain of moral affairs: “the object of justice is not the whole field of morality, but only that part of morality which concerns the issues of distribution and compensation”.53 Indeed, Alexy’s definition of justice is determined by these same elements: “justice is correctness in distribution and compensation”.54 While justice in distribution concerns a certain quality of the relationships between persons regarding certain “goods or burdens”, justice in compensation regards “the relationship between objects or between things, in the broadest sense of the term”, namely, “between punishment and guilt or illicit acts, between damage and reparation, and between what is given or rendered and what is received in exchange”.55

  • 56 Alexy 2021f: 317.
  • 57 Alexy 2003: 167-171.

19 The fundamental question, however, concerns precisely the quality of these relationships that ultimately renders them just. That is, it concerns the criteria for determining the “correctness” as the defining feature of justice in Alexy’s theory. He makes it clear that “as a general or abstract claim, a claim to justice does not aim at a specific conception of justice”, and that the underlying “criteria for justice and compensation” may be “different”.56 Rather, the criteria that determine what is owed to whom as his own (his suum) and what should accordingly be given to that titleholder, are specified in a procedure of public rational discourse in which different conceptions of justice are gradually balanced so that the outcome reflects the standards of a public conception of justice to which all the participants in the procedure, as members of a free and equal society wherein no particular conception of justice as such is preferred over others, may give their consent. The primary scope of this democratic procedure is to arrive at what Alexy calls a “nucleus of normative stability” at the constitutional level of positive law, a nucleus that consists of a “catalogue of fundamental rights” with regard to which there is a “sufficient level of agreement” between citizens.57

20The details of the stages through which a society arrives at a public agreement regarding fundamental rights in Alexy’s discourse theory is not the primary concern of this paper. However, certain claims that are contained in his line of argument regarding the specification of the criteria of legally relevant justice are indeed relevant for an assessment of his account of law’s nature.

  • 58 Alexy 2021g: 58–59.
  • 59 Alexy 2021g: 58.
  • 60 “Questions of justice, however, are moral questions”. Alexy 2021c: 40. “Human rights are, first, mo (...)
  • 61 “Human rights as moral rights belong exclusively to the ideal dimension of law”. Alexy 2021c: 47.
  • 62 “The claim to justice does not vanish once law is institutionalized. It remains alive, standing beh (...)

21First, the “core of justice” consists in a cluster of basic human rights that “essentially claim priority with respect to all other norms”.58 Although the idea of justice is broader than the idea of human rights, the two ideas are sufficiently interconnected such that it may be said that every violation of human rights is a violation of the principles of justice.59 The principles of justice and basic human rights, both denoting the correctness of what should be given to each as his own, have only a moral character.60 Their essentially moral character fits perfectly with their belonging exclusively to the ideal dimension of law.61 As such, the principles of justice, together with the basic human rights that denote their core, share the legal status of the dimension that they pertain to, that is, they are not of themselves law and law may not be said to be “in” them unless they meet the demands of the real dimension of law, that is, unless they are positivized. The novelty of Alexy’s account of law’s ideal nature is not in the claim that law may be said to be somehow “in” the principles of justice or in basic human rights, but in the claim that these elements of the ideal dimension of law, when positivized and constituted as real or source-based law (and as real or source-based rights), continue to operate as moral-evaluative features at the same time both “behind” and “in” law.62

  • 63 Alexy 2021c: 43.
  • 64 Alexy 2012a: 227.
  • 65 Alexy 2021c: 43.
  • 66 Alexy 2002: 52.
  • 67 Alexy 2021d: 92.

22Second, the idea of justice is not the only evaluative point of positive law in Alexy’s theory. Legal certainty, namely, the value that can be achieved only by means of law’s positivity,63 constitutes a formal and systemic evaluative point of positive law whose ratio is precisely in the fact that, in Alexy’s estimation, “the idea of justice as such – that is, morality simpliciter – does not […] suffice to resolve problems of social co-ordination and co-operation [and] the moral costs of anarchy can be avoided only by law understood as an enterprise that strives to realize the value of legal certainty”.64 Therefore, the dual nature of law demands that the operativity of the principles of justice and basic human rights qua moral entities within the ideal dimension of law must be seen “in correct proportion” to the value of legal certainty or positivity.65 This correct proportion is crucial for a precise understanding of what law is and what it is not, since the “balancing” (or “weighing”66) between the two values pertains to the very nature of law.67

  • 68 Alexy 2021b: 79. Alexy is always careful to acknowledge that he inherited the second part of this a (...)
  • 69 Alexy 2021d: 98.
  • 70 Alexy 2002: 28.
  • 71 Alexy 2021b: 77.

23Alexy proposes the following solution for cases in which justice and legal certainty collide with regard to a particular legal norm deemed contrary to the principles of justice: “the principle of legal certainty precedes justice even if the law is unjust, save for one sort of case: that in which the threshold of extreme injustice is crossed”.68 The balancing between the two values also provides us with an answer to the question of what law is “not in”. The Radbruch “extreme justice is no law” Formula epitomizes the claim that “an outermost border of law exists”,69 since it allows legal officials to “determine” that a radically unjust law was never law at all but a “non-law” (in German: Unrecht) throughout its posited existence,70 that is, that law was never “in” that radically unjust norm. Alexy holds that one who accepts the Radbruch Formula “has bid farewell to positivism”.71 However, the balancing between the two values – indeed, one of the two values is always legal certainty, achieved only by means of positivity – never leads to a solution where law is “in” the principles of justice or “in” the basic human rights that are not posited, but remain only ideal and exclusively moral. In this sense, although he gives much structural importance to the idea of justice and to basic human rights as the core of that idea, Alexy has never bid farewell to the positivists’ claim that all law is, ultimately, positive law and that there are no elements of real juridicity beyond it.

4 Clarifying some further doubts

24Perhaps as a remainder of anti-positivism’s in-built (or at least highly probable) commitment to the rebuttal of positivism’s “all law is positive law” thesis, Alexy’s writings contain arguments that could perhaps be presented in favour of the claim that he ultimately supports the existence of certain elements of juridicity beyond the reach of the criteria for the identification of valid positive law. The assessment of these arguments will provide a definitive answer to the main question of this paper.

  • 72 “This is a classic non-positivistic argument. An authoritatively issued norm, socially efficacious (...)
  • 73 “Thus, constitutional rights have a dual nature. The reason for this is that, with constitutional r (...)

25Starting with the argument most closely connected to his endorsement of the Radbruch Formula, Alexy sometimes refers to a “supra-positive law”72 in developing his claim that the radically unjust legal norm is “non-law”. This line of argument could imply that the valid legal norm containing extreme substantive injustice is deemed “non-law” on account of the existence of hierarchically superior and fully juridical supra-positive legal norms. Indeed, this thesis would resemble an anti-positivist stance. In a similar fashion, Alexy occasionally refers to “supra-positive rights”73 when he wants to describe the juridical status of basic human rights. I argue that, regardless of the terminological reference to entities that are at the same time both “supra-positive” and “law” (or “rights”), Alexy’s theoretical framework does not allow the expression “supra-positive law” to denote anything more than a strong metaphor or, at best, a virtual (or analogical) “law” that comprises moral elements pertaining only to law’s ideal dimension. Of course, he advocates the existence of supra-positive content of the principles of justice and of the values protected by basic human rights, but, as we saw earlier, this ideal content is of itself insufficient to constitute law. Again, until the two dimensions of law, the ideal and real, are properly united, the juridical phenomenon has not as yet appeared; the ideal elements are still “non-law”, and their status remains purely moral.

  • 74 Sieckmann (2021: 736) argues that, since the values of justice and legal certainty are both ideal v (...)
  • 75 Alexy 2021d: 91.

26In addition, radically unjust legal norms are deemed “non-law” in Alexy’s theory not on account of a “higher” law containing ideal elements that are not posited, but as a result of the tensions between the ideal and the real dimensions – and the prevailing effects of the ideal principles of justice over the real elements of legal certainty in this particular case – that occur at the level of posited law.74 In this particular case, the purely moral features of law’s ideal dimension that are present in law and “remain alive standing behind”75 the posited features of law’s social-factual existence, lead to the declaration that both the content and the formal posited features of a radically unjust legal norm are “non-law”. In sum, the supra-positive normative features that are operative in Radbruch’s formula do not render an unjust legal norm “non-law” because those features are (1) supra-positive and (2) somehow of themselves truly law. Rather, they render that norm “non-law” because in Alexy’s framework they are (1) essentially moral and, precisely as such, (2) intra-positive.

  • 76 Alexy 2002: 68-70.
  • 77 Alexy 2002: 69.
  • 78 Alexy 2002: 129.
  • 79 Alexy 2002: 130.
  • 80 “This claim [i.e., the claim to correctness that is operative in cases that fall within the scope o (...)

27Next, the status of the so-called “principles” in Alexy’s theory might, on first sight, lead to a conclusion that these principles denote non-posited elements of juridicity. It is Alexy’s thesis that in an “open-texture” situation (or the “open area of positive law”), where legal officials cannot “base a decision on the positive law” (on account of various reasons, such as “the vagaries of legal language, the possibility of norm conflicts, the absence of a norm”), the decision may also be reached by invoking (and by balancing between) non-posited principles.76 In contrast to legal positivists, who claim that these principles are essentially “non-legal or extra-legal”,77 Alexy maintains that “everything on which an official applying the law in the open area of the law bases and/or must base a decision in order to satisfy the claim to correctness belongs to the law”.78 For the purposes of this paper it is not necessary to enter into the details of what it means to say that principles must “satisfy the claim to correctness”. Suffice it to say that, in Alexy’s estimation, principles, “even when they cannot be identified as legal principles according to the validity criteria”, may be said to “become the components of the law”.79 This part of Alexy’s thesis on principles resembles a classical anti-positivist argument for the existence of non-posited elements of juridicity. However, on closer inspection, it is possible to understand that non-posited principles, which Alexy deems law, are in fact within the reach of posited law and of the criteria for its validity. This is so because, first, the invoking of principles is always contextualized in the process of law application and is necessarily included in its result, that is, in a posited decision made by legal officials.80 Second, and perhaps more importantly, principles may be said to be well within the reach of the criteria of validity for positive law because their non-posited operativity is confined to the “open area” of positive law, that is, to the area where the starting point is always a certain legal situation related to the status of the “texture”, in this case the “open texture”, of positive law. Alexy’s argument from principles thus fits perfectly within the reach of an objection that Hart raised to Dworkin’s non-positivism:

A rule of recognition is necessary if legal principles are to be identified […]. This is because the starting-point for the identification of any legal principle to be brought to light […] is some specific area of the settled law which the principle fits and helps to justify. The use of [Dworkin’s interpretive law-identifying] criterion [which he claims to be non-posited and autonomous from a rule of recognition] therefore presupposes the identification of the settled law, and for that to be possible a rule of recognition specifying the sources of law […] is necessary. (Hart 2012: 266)

  • 81 See Dworkin 2006: 197.
  • 82 Dworkin’s entire legal-philosophical project consists in explaining that the “standing political or (...)

28Now, Dworkin may be said to have at least partly avoided Hart’s objection. This is because, first, Dworkin maintains that the criteria for law-identification do not necessitate the conventional support of legal officials, and accordingly, principles may, even in the situation of disagreement among legal officials regarding their content and relevance,81 be identified as law for rather complex reasons described in Dworkin’s account of law as a part of political morality. Secondly, it is Dworkin’s view that his rights-based non-posited principles are already fully law awaiting discovery by the legal officials – and law is fully “in” them – before, during, and after the moment in which the state of affairs of positive law’s ‘open texture’ is rendered manifest.82 Alexy, however, cannot avoid Hart’s objection, since he disagrees with Dworkin’s above-mentioned theses. In reference to Dworkin’s first thesis, Alexy supports the argument, which he shares with Hart and legal positivists, that the very nature of law necessitates the existence of the shared criteria for law-identification, at least with regard to the validity of law’s real, factual, or posited elements. With regard to Dworkin’s second thesis, Alexy argues that the ideal dimension of principles, in order to possess legal character, must be necessarily connected to the real dimension of law at least with regard to the above-described two points of contact between these dimensions, that is, (1) principles are law only insofar as their existence and operativity forms part of a posited judicial decision and (2) the starting point for the invoking of principles must be an “open area” of positive law.

  • 83 See Alexy 1999b: 374.
  • 84 See Alexy 2021d: 103.
  • 85 Alexy 2021d: 104.
  • 86 “The legal system of the democratic constitutional state is an attempt to institutionalize practica (...)

29Finally, it is at least prima facie possible to read Alexy’s thesis that law is a part or a special case of general practical discourse, which is also related to issues of practical reasoning and morality (together with ethical-political and pragmatic reasons),83 as an argument in favour of the claim that, in this sense, at the highest level of analysis, law may ultimately be said to be somehow “in” morality. Indeed, he highlights that “legal argumentation or legal discourse is a special case of general practical argumentation or discourse”, which also comprises “moral arguments concerning justice and rights”.84 However, he immediately adds that although “general practical argumentation” pertains to what he refers to as law’s ideal dimension, the distinctive feature that makes legal argumentation – and the very nature of law – a “special” case of practical reasoning is precisely the claim that it “concerns justice as well as legal certainty”.85 Again, even if law may be said to constitute a specialized domain within the broader sphere of morality, in Alexy’s framework this means that the dual real-ideal nature of law is precisely the distinctive feature of law within practical reasoning. In sum, law as a special case of practical reasoning may be said to be “in” morality, but only in that morality that ultimately and necessarily meets the requirements of the law’s real dimension (i.e., the positivity of law) and is thereby “institutionalized”.86

5 Conclusion

  • 87 Bertea 2007: 74.

30It is usually thought that Alexy “loosens the link between law and authoritative issuance” by his non-positivist thesis that “the law consists of much more than the structured set of its constituent norms”,87 namely, that it consists also of the elements of the ideal or moral dimension. As I argued in this paper, this common interpretation of Alexy’s legal-philosophical approach needs further elucidation in order to better understand his commitments to both positivism and non-positivism. To assert that “law consists in much more” than merely posited law can mean significantly different things. As I explained in this paper, Alexy understands this claim in the sense that morality may be said to form part of law’s nature – that morality is “in” law – and as such the moral domain also determines what is “non-law” in some cases. However, Alexy does not support the anti-positivist claim that law is “in” any other reality or “thing” that is not within the reach of the criteria for the identification of valid positive law.

31Again, if we assume that the core criterion for the categorization of a legal-philosophical approach on one side of the divide between positivism and non-positivism is the endorsement (or refutation) of the thesis in favour of the necessary inclusion of substantive morality in the criteria for law-identification as a feature that somehow emerges from the very concept of law, then Alexy must surely be enlisted among the non-positivists. In other words, if we ignore the crucial importance of the “all law is positive law” answer to the “what is law ‘in’?” question for legal positivists, it will be difficult to find an argument that would undermine Alexy’s commitments to non-positivism. However, as I have shown in this paper, in order to fully understand his theory of law’s nature, it is necessary to take into account all the relevant starting points from which this theory was elaborated. Alexy’s rather explicit and recurrent emphasis on positivity as a necessary feature of all manifestations of law, that is, his adherence to the thesis that “all law is positive law”, denotes a relevant starting point that has been largely ignored by his commentators and critics. His arguments proceeding from this starting point suggest that there are some important – indeed, typically positivistic – boundaries to his non-positivism, which should not be overlooked in a comprehensive account of his legal-philosophical approach.

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Bibliography

Alexy, R. (1999a). My philosophy of law: the institutionalisation of reason. In L. J. Wintgens (Ed.), The law in philosophical perspectives: my philosophy of law (pp. 23-45). Springer. https://doi.org/10.1007/978-94-015-9317-5_2

Alexy, R. (1999b). The special case thesis. Ratio Juris, 12(4), 374-384. https://doi.org/10.1111/1467-9337.00131

Alexy, R. (2002). The argument from injustice: a reply to legal positivism. Oxford University Press.

Alexy, R. (2003). Justicia como corrección. Doxa, 26, 161-171. https://doi.org/10.14198/DOXA2003.26.09

Alexy, R. (2005). Agreements and disagreements: some introductory remarks. Anales de la Cátedra Francisco Suárez, 39, 737-742. https://doi.org/10.30827/acfs.v39i0.1041

Alexy, R. (2006). Effects or defects – action or argument? Thoughts about Deryck Beyleveld and Roger Brownsword’s Law as a moral judgment. Ratio Juris, 19(2), 169-179. https://doi.org/10.1111/j.1467-9337.2006.00322.x

Alexy, R. (2007). Thirteen Replies. In G. Pavlakos (Ed.), Law, rights and discourse: the legal philosophy of Robert Alexy (pp. 333-366). Hart Publishing. http://dx.doi.org/10.5040/9781472563989.ch-016

Alexy, R. (2011). Begriff und Geltung des Rechts (5th ed.). Verlag Karl Alber.

Alexy, R. (2012a). Between positivism and non-positivism? A third reply to Eugenio Bulygin. In J. Ferrer Beltrán, J. J. Moreso & D. M. Papayannis (Eds.), Neutrality and theory of law (pp. 225-238). Springer. https://doi.org/10.1007/978-94-007-6067-7_11

Alexy, R. (2012b). Comments and Responses. In M. Klatt (Ed.), Institutionalized reason: the jurisprudence of Robert Alexy (pp. 319-356). Oxford University Press. https://doi.org/10.1093/acprof:oso/9780199582068.003.0015

Alexy, R. (2021a). The nature of legal philosophy. In R. Alexy, Law’s ideal dimension (pp. 7-17). Oxford University Press. https://doi.org/10.1093/oso/9780198796831.003.0002

Alexy, R. (2021b). An answer to Joseph Raz. In R. Alexy, Law’s ideal dimension (pp. 64-82). Oxford University Press. https://doi.org/10.1093/oso/9780198796831.003.0006

Alexy, R. (2021c). The dual nature of law. In R. Alexy, Law’s ideal dimension (pp. 36-50). Oxford University Press. https://doi.org/10.1093/oso/9780198796831.003.0004

Alexy, R. (2021d). The ideal dimension of law. In R. Alexy, Law’s ideal dimension (pp. 83-106). Oxford University Press. https://doi.org/10.1093/oso/9780198796831.003.0007

Alexy, R. (2021e). On the concept and the nature of law. In R. Alexy, Law’s ideal dimension (pp. 18-35). Oxford University Press. https://doi.org/10.1093/oso/9780198796831.003.0003

Alexy, R. (2021f). Law and correctness. In R. Alexy, Law’s ideal dimension (pp. 312-326). Oxford University Press. https://doi.org/10.1093/oso/9780198796831.003.0022

Alexy, R. (2021g). Law, morality, and the existence of human rights. In R. Alexy, Law’s ideal dimension (pp. 51-63). Oxford University Press. https://doi.org/10.1093/oso/9780198796831.003.0005

Alexy, R. (2021h). The absolute and the relative dimension of constitutional rights. In R. Alexy, Law’s ideal dimension (pp. 235-252). Oxford University Press. https://doi.org/10.1093/oso/9780198796831.003.0017

Alexy, R., & Marmor, A. (2005). Debate. Anales de la Cátedra Francisco Suárez, 39, 769-793. https://doi.org/10.30827/acfs.v39i0.1042

Arnaud, A-J. (1985). Fact as Law. In D. Carzo & B. S. Jackson (Eds.), Semiotics, law and social science (pp. 129-144). Gangemi Editore.

Arnaud, A-J. (1993). Juridicité. In A-J. Arnaud (Ed.), Dictionnaire encyclopédique de théorie et de sociologie du droit (pp. 322-323). Librairie Générale de Droit et de Jurisprudence.

Atienza Rodríguez, M., & Alexy, R. (2001). Entrevista a Robert Alexy. Doxa, 24, 671-687.

Bertea, S. (2007). How non-positivism can accommodate legal certainty. In G. Pavlakos (Ed.), Law, rights and discourse: the legal philosophy of Robert Alexy (pp. 69-82). Hart Publishing. http://dx.doi.org/10.5040/9781472563989.ch-004

Covell, C. (1992). The defence of natural law: a study of the ideas of law and justice in the writings of Lon L. Fuller, Michael Oakeshot, F. A. Hayek, Ronald Dworkin and John Finnis. St. Martin’s Press.

Dickson, J. (2007). Is the rule of recognition really a conventional rule? Oxford Journal of Legal Studies, 27(3), 373-402. https://doi.org/10.1093/ojls/gql032

Duxbury, N (1989). Juridicity as a theme in French legal philosophy. International Journal for the Semiotics of Law, 2(1), 85-95. https://doi.org/10.1007/BF01106125

Dworkin, R. (1978). Taking rights seriously (2nd ed.). Harvard University Press.

Dworkin, R. (1982). “Natural” law revisited. University of Florida Law Review, 34(2), 165-188.

Dworkin, R. (1986). Law’s empire. Harvard University Press.

Dworkin, R. (2006). Justice in robes. The Belknap Press of Harvard University Press.

Finnis, J. (2011). Natural law and natural rights (2nd ed.). Oxford University Press.

Green, L. (2012). Introduction. In H. L. A. Hart, The concept of law (pp. xi-xii). Oxford University Press.

Green, L. (2021). Positivism, realism and sources of law. In T. Spaak & P. Mindus (Eds.), The Cambridge companion to legal positivism (pp. 39-60). Cambridge University Press. https://doi.org/10.1017/9781108636377.002

Hart, H. L. A. (2012). The concept of law (3rd ed.). Oxford University Press.

Hart, H. L. A. (2016). The new challenge to legal positivism (1979). Oxford Journal of Legal Studies, 36(3), 459-475. https://doi.org/10.1093/ojls/gqw021

Hervada, J. (2020). Critical introduction to natural right (2nd ed.). Wilson & Lafleur Ltée.

Klatt, M. (2012). Robert Alexy’s philosophy of law as a system. In M. Klatt (Ed.), Institutionalized reason: the jurisprudence of Robert Alexy (pp. 1-26). Oxford University Press. https://doi.org/10.1093/acprof:oso/9780199582068.003.0001

Mackie, J. L. (1977). Ethics: inventing right and wrong. Penguin Books.

Radbruch, G. (2006a). Statutory lawlessness and supra-statutory law (1946). Oxford Journal of Legal Studies, 26(1), 1-11. https://doi.org/10.1093/ojls/gqi041

Radbruch, G. (2006b). Five minutes of legal philosophy (1945). Oxford Journal of Legal Studies, 26(1), 13-15. https://doi.org/10.1093/ojls/gqi042.

Sieckmann, J. (2021). Alexy’s critique of legal positivism. In T. Spaak & P. Mindus (Eds.), The Cambridge companion to legal positivism (pp. 720-741). Cambridge University Press. https://doi.org/10.1017/9781108636377.031

Spaak, T. (2020). Robert Alexy and the dual nature of law. Ratio Juris, 33(2), 150-168. https://doi.org/10.1111/raju.12285

Spaak, T., & Mindus, P. (2021). Introduction. In T. Spaak & P. Mindus (Eds.), The Cambridge companion to legal positivism (pp. 1-36). Cambridge University Press. https://doi.org/10.1017/9781108636377.001

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Notes

1 See, for example, Alexy 2021a: 9-10. For the claim that Alexy’s legal-philosophical account does “not primarily concern” more specific questions, such as the issue of “the criteria of legal validity”, but rather “a more general analysis of the nature of law”, see Sieckmann 2021: 726. Klatt (2012: 2-14) correctly notes that Alexy’s books prior to the 1992 first German edition of The Argument from Injustice presuppose a non-positivistic concept of law, but do not develop it. It is only with The Argument from Injustice and subsequent works that Alexy systematically presents the debate between positivism and non-positivism and develops his non-positivist concept of law. Accordingly, in this paper I will predominantly rely on his post-1992 writings, although I will, of course, take into consideration his earlier legal-philosophical arguments, especially as these were further developed in his later works.

2 Alexy 2002: 5.

3 Alexy 2021b: 64.

4 Alexy and Marmor 2005: 770.

5 Alexy 2002: 3.

6 Alexy 2002: 4.

7 Alexy 2021c: 36.

8 “In the definition of law, the factual dimension is represented by the elements of authoritative issuance and social efficacy, whereas the ideal dimension finds its expression in the element of moral correctness”. Alexy 2021c: 36.

9 Alexy 2021c: 36.

10 Alexy 2002: 7.

11 Alexy and Marmor 2005: 769.

12 Alexy and Marmor 2005: 769. See also Alexy 2021b: 64.

13 For examples of this line of argument, see Spaak and Mindus 2021: 9-11. Some authors, perhaps most notably Julie Dickson, added an additional level of complexity to the same line of argument: “We should preserve the relative autonomy of [making moral value judgments about the moral value and justifiability of aspects of law] from the non-morally evaluative task of identifying and explaining law’s essential properties”. Dickson 2007: 399.

14 Alexy (2021b: 64) certainly thinks that they are: “In order to answer the question of what the essence of law is, the positivists refer only to facts, while the non-positivist, in contrast, refers to both facts and ideals. I think that this difference is significant enough to warrant the labels ‘positivism’ and ‘non-positivism’”.

15 Green 2021: 39.

16 Green 2021: 39-40 (emphasis original). For Green’s earlier claim that “someone who thinks all law is posited is a legal positivist”, see Green 2012: xix (emphasis original).

17 Mackie 1977: 232-33 (emphasis added).

18 Alexy 2021a: 10.

19 Alexy 2021d: 97.

20 Throughout the paper I will use the term “juridicity” (or the adjective “juridical”) to denote the specific field that pertains to law and thus not to other, possibly overlapping fields, such as the field of morality. I take juridicity to mean, at the highest level of analysis, a specific quality of a given reality – whether a norm, a “thing” (broadly speaking), aspects of human agency, a state of affairs, etc. – that arises from a fixed set of constitutive properties, which render that determinate reality somehow suitable for being considered to pertain to the domain of law, while other realities that do not possess the aforementioned quality are deemed non-law. At this general level of analysis, the term “juridicity” does not of itself rely on a certain concrete set of such properties, but it is rather presented as a structural vehicle for the subsequent implementations of such properties in a particular theory of what is to count as law, presented at the level of general jurisprudence. Thus, for example, H. L. A. Hart’s idea of a rule of recognition represents a particular theory of the constitutive properties of juridicity. As will be shown in this paper, Alexy also presents his own theory of what is to count as law, that is, his own set of constitutive properties that render certain norms or, broadly speaking, realities unmistakably juridical or enables the identification of these realities or phenomena as juridical. Alexy himself sometimes uses the term “juridical” (in German: juristische) with this meaning in mind, for example when he distinguishes the “juridical [juristische] concept of legal validity” from the “sociological” and the “ethical” concepts of validity, or when he speaks about the “juridical definition of the law”. See Alexy 2002: 87, 127. For the corresponding original German occurrences of the term juristische in Alexy’s text, see Alexy 2011: 142, 199. André-Jean Arnaud (1993: 322-323) emphasizes that the concept of juridicity, predominantly developed in French legal philosophy, aims to “specify the domain of law” by distinguishing it from the field of non-juridical social reality. In Arnaud’s view (1985: 138), the concept of juridicity finds its raison d’être in relation to the “problem of knowing where law, the juridical sphere, starts”; the viewpoint of this problem, indeed, “justifies the emergence of an independent concept of juridicity”. In his brief overview of the concept of juridicity in French legal philosophy, Neil Duxbury (1989: 89) argues that this concept is predominantly used as “a convenient rubric under which purely speculative pronouncements about what are taken to be the essential foundations of law can be made”. My present use of the concept of juridicity largely overlaps with this more abstract stage of the analysis of that concept in French legal philosophy.

21 Hart had said that […] legal systems contain a fundamental, if sometimes complex, social ‘rule of recognition’, which is accepted by substantially all legal actors and which operates for them as a decisive pedigree test of true propositions of law. I argued that this claim neglected the important role of moral principles in legal reasoning [that] figure in judges’ explanations of why the law is as they claim it to be, but they are not themselves identified by any broadly accepted master test of pedigree [because] their identity […] is controversial”. Dworkin 2006: 32.

22 See Hervada 2020: 7-30. Interestingly enough, in his natural-law account of law’s nature John Finnis does not maintain that there are any elements of true juridicity beyond posited law, that is, beyond the criteria for identifying valid positive law. In Finnis’s theory, law in the true sense of the term is always and necessarily connected to positive human law. The moral elements that necessarily constrain the content of positive law, in his view, possess only a moral nature once they are seen as detached from law’s social-factual aspect; thus, these moral elements (i.e., the principles of natural law) are only “analogically” law. See, for example, his definition of law in Finnis 2011: 276-77. For his claim that natural law is only “analogically law”, see Finnis 2011: 280.

23 Alexy and Marmor 2005: 769-70. “This version of non-positivism shares with positivism a sources thesis […]. Membership of the ‘sources family’ is necessary in order to do justice to the factual dimension of law”. Alexy 2006: 172-73.

24 Alexy, 2005: 738. “To be sure, the version of non-positivism that I defend contains strong positivistic elements. It by no means substitutes correctness of content [i.e., elements of law’s ideal dimension] for authoritative issuance and social efficacy [i.e., elements of law’s real dimension]. On the contrary, both are necessarily included”. Alexy, 2012a: 237.

25 “In the definition of law, the factual dimension is represented by the elements of authoritative issuance and social efficacy”. Alexy 2021c: 36. See also Alexy 2002: 4.

26 Alexy 2021e: 29; Alexy 2021c: 36.

27 Alexy 2021e: 24. “My thesis is that a […] construction that, from the very beginning, gives more weight to the factual dimension of law vis-à-vis its ideal dimension […] mirrors […] the nature or essence of law”. Alexy 2006: 171.

28 Alexy 2021b: 64.

29 Alexy 2021b: 79.

30 Alexy 2002: 4.

31 As Spaak (2020: 152) also notes, it is precisely “the social thesis which constitutes the backbone of legal positivism, and there are serious nonpositivist legal philosophers who do not accept the social thesis, at least not fully”. Spaak (2020: 152) points to Dworkin’s thesis that law may include content that “goes beyond the usual sources of law” as an example. In his 2005 debate with Alexy, Marmor (Alexy and Marmor 2005: 774) also highlights that Dworkin represents an example of a non-positivist that “denies the truth of both the social thesis and the separation thesis”.

32 Alexy 2021c: 42.

33 Alexy 2021d: 91.

34 Alexy 2021d: 91.

35 Alexy 2021d: 91.

36 Alexy 2002: 51-53; Alexy 2021c: 43.

37 Alexy 2002: 13.

38 Alexy 2002: 46.

39 Alexy 1999a: 23.

40 Alexy 2021d: 99. This position is described by Alexy (1999a: 23) as the “most extreme antipode to legal positivism”. Dworkin (1978: 339, 342, 344; 1986: 35-36, 97-98, 102) maintains that this same position is especially present in the arguments of the adherents of the “strong”, “orthodox”, or “extreme” versions of natural-law theory, which he criticizes for denying any essential difference between principles of law and principles of substantive morality, or, said differently, for erroneously concluding that substantive moral principles have a legal status simply in virtue of their objective moral truth or merit.

41 Alexy 2007: 335.

42 Alexy 2012b: 323.

43 Alexy 2021d: 97.

44 For his claim that “the necessity of positivity” does not “imply positivism”, see Alexy 2021c: 43.

45 Alexy 2002: 4; Alexy 2005: 738; Alexy 2021c: 83.

46 Alexy 2005: 738. See also Alexy and Marmor 2005: 770.

47 Alexy 2021a: 15.

48 Alexy 2005: 742.

49 Most notably, justice figures as the central evaluative feature in the anti-positivist accounts of law’s nature developed within Thomistic juridical realism (as described in the introductory section of this paper), and from a different viewpoint, by Dworkin. For the centrality of justice in Dworkin’s account of the nature of law, see Covell 1992: 145-195.

50 Atienza Rodríguez and Alexy 2001: 684.

51 Alexy 2021e: 31-32; Alexy 2021c: 37, 39-40, 43; Alexy 2021d: 91.

52 Alexy 2003: 161.

53 Alexy 2003: 161.

54 Alexy 2003: 163. For echoes of this definition in his other texts, see Alexy 2021c: 39-40; Alexy 2021f: 317.

55 Alexy 2003: 161.

56 Alexy 2021f: 317.

57 Alexy 2003: 167-171.

58 Alexy 2021g: 58–59.

59 Alexy 2021g: 58.

60 “Questions of justice, however, are moral questions”. Alexy 2021c: 40. “Human rights are, first, moral, second, universal, third, fundamental, and fourth, abstract rights, that, fifth, take priority over all other norms”. Alexy 2021c: 47.

61 “Human rights as moral rights belong exclusively to the ideal dimension of law”. Alexy 2021c: 47.

62 “The claim to justice does not vanish once law is institutionalized. It remains alive, standing behind and found in the law; and it is the main task of the theory of the ideal dimension of law to make this explicit”. Alexy 2021d: 91. “Constitutional rights are part of positive law, namely, positive law at the level of the constitution. […] Constitutional rights may be considered as attempts to transform human rights qua ideal rights into positive law, that is, into real rights. The ideal dimension remains alive after the transformation into the real dimension”. Alexy 2021d: 105. Thus, in Alexy’s view (2021h: 237), constitutional rights participate in law’s dual nature, since these rights encompass both (1) the exclusively moral value of supra-positive human rights (which are transformed into constitutional rights) and (2) the positivity that is also necessary for their inclusion in law (i.e., for their juridicity).

63 Alexy 2021c: 43.

64 Alexy 2012a: 227.

65 Alexy 2021c: 43.

66 Alexy 2002: 52.

67 Alexy 2021d: 92.

68 Alexy 2021b: 79. Alexy is always careful to acknowledge that he inherited the second part of this argument – in its shortest form, that “extreme justice is no law” – from Gustav Radbruch (the so-called “Radbruch Formula”). See Alexy 2002: 28; Alexy 2021c: 45. For the original formulation of Radbruch’s formula, see Radbruch 2006a: 7; Radbruch 2006b:14.

69 Alexy 2021d: 98.

70 Alexy 2002: 28.

71 Alexy 2021b: 77.

72 “This is a classic non-positivistic argument. An authoritatively issued norm, socially efficacious from the time of issuance, is denied validity or […] legal character because it violates supra-statutory law”. Alexy 2002: 7. Alexy’s reference to “supra-positive law” relies on Radbruch’s (2006a: 6-7) more developed (and arguably more juridically fuelled) usage of the same term: “Where there arises a conflict between legal certainty and justice, between an objectionable but duly enacted statute and a just law that has not been cast in statutory form, there is in truth a conflict of justice with itself, a conflict between apparent and real justice”. Radbruch (2006b: 14-15) explicitly identifies supra-positive law with normative content that is usually referred to as “natural law”: “There are principles of law, therefore, that are weightier than any legal enactment, so that a law in conflict with them is devoid of validity. These principles are known as natural law or the law of reason”.

73 “Thus, constitutional rights have a dual nature. The reason for this is that, with constitutional rights, not just any political decision is transformed into positive law; rather, it is human rights qua supra-positive rights that are rendered positive”. Alexy 2021h: 237.

74 Sieckmann (2021: 736) argues that, since the values of justice and legal certainty are both ideal values, the true intralegal conflict between these values is played out solely “within the ideal dimension” of law. Be that as it may, my present claim that both these ideal values collide at the level of necessarily posited law – and not at the level that comprises also non-posited or supra-positive law – still stands.

75 Alexy 2021d: 91.

76 Alexy 2002: 68-70.

77 Alexy 2002: 69.

78 Alexy 2002: 129.

79 Alexy 2002: 130.

80 “This claim [i.e., the claim to correctness that is operative in cases that fall within the scope of the ‘open’ quality of positive law] is because of its necessary connection to the judicial judgment a legal, and not merely a moral claim”. Alexy 2021f: 321.

81 See Dworkin 2006: 197.

82 Dworkin’s entire legal-philosophical project consists in explaining that the “standing political order is a source of judicial rights” by “showing why people can have genuine political rights just by virtue of the actual political history of their community, and why these rights hold with special force in litigation”. See Dworkin 1982: 185. In Dworkin’s view (2011: 402), principles are law even before they are – indeed, even if they never are – posited: “[Interpretivism] argues that law includes not only the specific rules enacted in accordance with the community’s accepted practices but also principles that provide the best moral justification for those enacted rules. The law then also includes the rules that follow from those justifying principles, even if those rules were never enacted”. Regardless of his many objections to Dworkin’s project and his attempts to show that this project may be said to ultimately accommodate the central tenets of inclusive positivism, Hart (2016: 470) clearly acknowledges Dworkin’s claim that non-posited principles are already law: “[Dworkin] maintains that there are objectively certain moral principles that are also law, [and that] these principles owe their legal status neither to any form of incorporation nor to any normative decision or judicial practice, nor to any consensus. Accordingly, they are law even if they are not so identified with reference to the social sources of law”.

83 See Alexy 1999b: 374.

84 See Alexy 2021d: 103.

85 Alexy 2021d: 104.

86 “The legal system of the democratic constitutional state is an attempt to institutionalize practical reason”. Alexy 1999b: 383.

87 Bertea 2007: 74.

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References

Electronic reference

Petar Popović, “Are there any elements of juridicity beyond positive law in Robert Alexy’s non-positivism?”Revus [Online], 49 | 2023, Online since 24 March 2023, connection on 18 April 2024. URL: http://journals.openedition.org/revus/9460; DOI: https://doi.org/10.4000/revus.9460

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About the author

Petar Popović

Associate professor in Philosophy of Law, Faculty of Canon Law, Pontifical University of the Holy Cross, Rome (Italy).

Address: Faculty of Canon Law – Pontifical University of the Holy Cross – Piazza di Sant’Apollinare, 49 – 00186 Rome – Italy

E-mail: p.popovic (at) pusc.it

By this author

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The text only may be used under licence CC BY-SA 4.0. All other elements (illustrations, imported files) are “All rights reserved”, unless otherwise stated.

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