The Argument from Injustice: A Reply to Legal Positivism

Paperback | January 15, 2010

byRobert AlexyTranslated byStanley Paulson, Bonnie Paulson

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At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessaryconnections between law and morality and, second, normative reasons for including moral elements in the concept of law. While the conceptual argument alone is too limited to establish a sufficiently strong connection between law and morality, and the normative argument alone fails to address thenature of law, the two arguments together support a nonpositivistic concept of law, toppling legal positivism qua comprehensive theory of law.The author makes his case within a conceptual framework of five distinctions that can be variously combined to represent a multiplicity of presuppositions or perspectives underlying the enquiry into the relationship of law and morality. In this context, it can indeed be shown that there areperspectives that bespeak solely a positivistic concept of law. The decisive point, however, is that there is a perspective, necessary to the law, that necessarily presupposes a nonpositivistic concept of law. This is the perspective of a participant in the legal system, asking for the correctanswer to a legal question in this legal system. The participant-thesis is demonstrated by appeal to Gustav Radbruch's formula (extreme injustice is not law) and to the judge's balancing of principles in deciding a concrete case. The author arrives at a concept of law that systematically linksclassical elements of legal positivism - authoritative issuance and social efficacy - with the desideratum of nonpositivistic legal theory, correctness of content.

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At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessaryconnections between law and morality and, sec...

Robert Alexy has been Professor of Public Law and Legal Philosophy at Christian Albrechts University, Kiel, since 1986. He was President of the German Section of the International Association for Philosophy of Law and Social Philosophy (IVR) from 1994-1998. Other books published by OUP include A Theory of Legal Argumentation and A Th...
Format:PaperbackDimensions:160 pagesPublished:January 15, 2010Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199584214

ISBN - 13:9780199584215

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Table of Contents

The Problem of Legal Positivism1. The Basic Positions2. The Practical Significance of the DebateThe Concept of Law3. Central Elements4. Positivistic Concepts of Law5. Critique of Positivistic Concepts of LawThe Validity of Law6. Concepts of Validity7. Collisions of Validity8. Basic NormDefinition

Editorial Reviews

Review from previous edition: "... a valuable addition to the English literature ... as a refreshingly balanced view on the virtues and limitations of the positivist project from beyond the trenches of the Anglo-American debate, it should be at or near the top of any reading list on key issuesin contemporary jurisprudence." --Legal Studies 15/09/2004