• 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 & 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 & 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 & Marmor 2005: 769. See also Alexy 2021b: 64.
• 13 For examples of this line of argument, see Spaak & Mindus 2021: 9-11. Some authors, perhaps most no (...)
• 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

• 23 Alexy & Marmor 2005: 769-70. “This version of non-positivism shares with positivism a sources thesi (...)
• 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

• 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 & 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 & 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

• 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.

• 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:

• 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

• 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.