Some Problems with Robert Alexy's Account of Legal Validity: The Relevance of the Participant's Perspective*

This article examines Robert Alexy's account of legal validity. It concludes that Alexy's account of legal validity lacks sufficient support given the author's methodological commitments. To reach that conclusion, it assesses the plausibility of simultaneously maintaining that the participant's perspective has conceptual privilege in the explanation of the nature of law, that legal discourse is a special case of general practical discourse, and that unjust considerations can be legally valid norms.     

Neil MacCormick's Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View

This paper offers a diachronic reconstruction of MacCormick's theory of law and legal argumentation: In particular, two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick's gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick's acceptance of the one‐right‐answer thesis and the consequent thinning of the differences between MacCormick's theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent, however, is not only to describe this change in MacCormick's thought, but also to attempt a defence of the original view that we find in Legal Reasoning and Legal Theory.     

Robert Alexy and the Dual Nature of Law

Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophical questions. In this article, I consider some of these questions, such as what the meaning of the correctness thesis is, whether Alexy's discourse theory supports this thesis, and whether the thesis is defensible; whether Alexy's argument from anarchy and civil war supports the claim that law of necessity has a real dimension; and what the implications are of the use of moral arguments, such as the argument from injustice, for the status of Alexy's inquiry.     

An Antinomy in Alexy's Theory of Balancing

This article argues that Robert Alexy's influential theory of balancing is affected by a contradiction that makes it unfeasible as an instrument by which to explain some aspects of law and legal reasoning it aims to clarify. In particular, I will show that one of the premises of Alexy's theory of balancing is incompatible with its conclusion. Alexy's theory is based upon a sharp distinction between rules and principles. However, as my analysis will demonstrate, its conclusion implies that it is impossible to distinguish between rules and principles. This is because the so-called weight formula and the law of colliding principles (i.e., the two main notions used by Alexy to explain balancing) cancel out any difference between these two types of norms.     

The Special Case Thesis

The author outlines his thesis that legal discourse is a special case of general practical discourse ( Sonderfallthese ) and develops it as an attempt to cover both the authoritative, institutional, or real and free, discursive, or ideal dimension of legal reasoning. On this basis, he examines the objections raised by Habermas (1996) to the special case thesis. First, he discusses the reduction of general practical discourse to moral discourses ( genus proximum problem) holding that the former is a combination of moral, ethical, and pragmatic arguments within the priority of just; second, he examines the objection that general practical arguments change their character or nature when employed in legal contexts (subset and specification problem) and the related problems concerning legal validity and unjust law. He concludes proposing a procedural (opposite to a coherential) integration of general practical arguments in the legal context.     

法律原则在法律推理中的地位和作用——一个比较的研究

我国关于法律原则的讨论一般集中在立法过于笼统与立法所规定的法律基本原则这两个方面。这种意义上的法律原则与德沃金所说的法律原则存在重要区别。德沃金关于法律原则的讨论其目的是强调法律的确定性 ,而我们关于法律原则的讨论却在强化法律的模糊性。法律原则的讨论主要涉及法律推理过程中原则与规则之间的关系。基于法治的原因 ,法律推理必须坚持将法律规则作为法律推理的大前提 ;在法律规则含义不明确、模糊或者相互矛盾时 ,可以使用法律原则 ,但是 ,必须经过一定的法律原则的认定程序。     

Alexy's Thesis of the Necessary Connection between Law and Morality

This paper criticizes Alexy's argument on the necessary connection between law and morality. First of all, the author discusses some aspects of the notion of the claim to correctness. Basically, it is highly doubtful that all legal authorities share the same idea of moral correctness. Secondly, the author argues that the claim to correctness is not a defining characteristic of the concepts of “legal norm” and “legal system”. Hence, the thesis of a necessary connection between law and morality based on such claim cannot be accepted. 1 Abstract by Antonino Rotolo.
     

On Necessary Relations Between Law and Morality*

Abstract. The author's thesis is that there is a conceptually necessary connection between law and morality which means legal positivism must fail as a comprehensive theory. The substantiation of this thesis takes place within a conceptual framework which shows that there are at least 64 theses to be distinguished, concerning the relationship of law and morality. The basis for the author's argument in favour of a necessary connection, is formed by the thesis that individual legal norms and decisions as well as whole legal systems necessarily make a claim to correctness. The explication of this claim within the frame of discourse theory shows that the law has a conceptually necessary, ideal dimension, which connects law with a procedural, universalistic morality.     

On the Necessity of the Interconnection between Law and Morality*

Abstract. By taking issue with Robert Alexy's claim to correctness, I attempt to cast light on the nature of the necessity that pertains to the claim. With respect to it, I argue that it should be understood as deriving from the metaphysical requirements for normative knowledge in general. These requirements are shown to include a general norm of autonomy which is a priori and necessary, and comprises a minimal morality. The line of reasoning is compatible with discourse theory, but does not presuppose it; therefore more far‐reaching conclusions can be drawn.     

从法律原则到个案规范——阿列克西原则理论的民法应用

司法中针对某具体个案适用法律原则的通常情形是,没有既有规则可以适用(即"穷尽规则"),或者尽管有规则,但因其与原则相冲突而被排除适用。这两种情形的规范表现在实质上均可理解为原则之间的冲突。在相冲突的原则中确定何者最终适用于该具体个案,恰是阿列克西原则理论(尤其是其"竞争法则")所要解决的问题。适用"竞争法则"的核心在于找寻与确立优先条件或变量,相较于阿列克西的比重公式,参照生活常情或"事物本质"能为其找寻与确立提供更为具体的实践操作路径,因为优先条件或变量的确立由此转变为找寻连接基本案件事实与优先原则的中点(此即"裁判案件要确定的核心要素")。以"竞争法则"为理论根基,再辅之以确立优先条件或变量的具体路径,原则的规则化便水到渠成:即通过具体的优先条件或变量确立相冲突原则中优先适用的原则(即优先原则),适用优先原则的结果便是创设一个规则(即个案规范),优先条件或变量进而成为该个案规范的构成要件。个案规范才是裁判该具体个案的直接依据。     

Norm Enactment and Performative Contradictions

In this paper we investigate the role of performative contradictions in legal discourse. First of all we identify the argumentative roles of performative contradictions and two possible interpretations of them. With this done, we show that one use of performative contradictions can be fruitfully applied in analysing normative speech acts implementing norm enactment, namely, those speech acts that are designed to produce new legal norms. We conclude the paper by showing that our analysis provides strong support for Robert Alexy's claim‐to‐correctness thesis, according to which speech acts of the norm‐enacting kind raise a claim to correctness.     

Biographing Realist Jurisprudence

This essay reexamines realist jurisprudence through a review of two biographies of leading realists: Dalia Tsuk Mitchell's Architect of Justice: Felix Cohen and the Founding of American Legal Pluralism (2007), and Spencer Waller's Thurman Arnold: A Biography (2005). The essay argues that when biographies of legal realists are considered alongside their academic writing, a more robust jurisprudence emerges. Realist lives crystallize the intuition that the major innovation of legal realism was not, as generally assumed, its attitude toward judges and adjudication. Instead, realist jurisprudence is an institutionalist view of law with a focus on groups rather than individuals. Realist jurisprudence understands courts, legislatures, administrative agencies, and nongovernmental groups as important loci of law, lawmaking, and legal reasoning.     

Putting interpretation in its place

What can a philosophical analysis of the concept of interpretation contribute to legal theory? In his recent book,Interpretation and Legal Theory, Andrei Marmor proposes a complex and ambitious analysis as groundwork for his positivist assault on “interpretive” theories of law and of language. I argue (i) that the crucial element in Marmor's analysis of interpretation is his treatment of Ludwig Wittgenstein's remarks on following rules, and (ii) that a less ambitious analysis of interpretation than Marmor's can take better advantage of those insights about rules. I explore some implications of such an analysis for the role of interpretation in legal reasoning.     

The Powers of Application

This paper studies the formality of law and legal reasoning. It argues that, though the law (and its application) is indeed formal in that it does not take into account a significant number of considerations that should in principle be relevant for an all–things–considered decision, this is not to be explained on the basis of some ontology of rules (i.e., rules as exclusionary reasons), but upon the nature of legal discourse when viewed as a social practice. How the law is applied to particular cases, when substantive considerations not referred to by the rules are important enough to defeat their application to the case and questions of this kind are not answered by the legal material (which includes or might include rules, principles etc.), but by beliefs that underlie legal practice, beliefs about the world and its relation to human beings and society. Insofar as these beliefs have impact upon practices we recognise as legal they are termed "images of law." Legal reasoning cannot be understood without paying due attention to the nature and evolution of images of law.     

Law and Identity in Colonial South Asia

This essay articulates the contributions of Mitra Sharafi's study of Parsi legal culture to colonial legal studies. Situated at the intersection of the literature on legal pluralism and legal institutions, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947 (2014) uses a range of new legal sources and case law to recover a remarkable history of collective identity that emerged via the medium and infrastructure of law. The Parsis' active participation in colonial legal institutions not only reshaped their normative worlds but also de‐anglicized imperial law.     

Institutions,Arrangements and Practical Information*

Abstract. A restatement of an institutionalist theory of law is attempted with particular reference to legal reasoning and legal rights. Use is made of Ota Weinberger's concept of “practical information”, focusing on both its momentary and diachronic aspects. Momentary practical information corresponds to the need to know which conduct is required of us at a given moment. The diachronic practical information becomes relevant whenever we wish to stabilize the practical information and to reduce the likelihood of change regarding our ways of acting. Furthermore, the momentary information is given sense only against the background of the diachronic one. Among the different types of diachronic practical information particular importance is ascribed to legal “institutions” such as contracts and rights. Legal “institutions” are conceived as founded on various sets of rules. Rules may then increase the number of facts in the world: those special kinds of facts which are represented by social phenomena.     

The Limits of Institutionalised Legal Discourse*

Abstract. One of the most powerful accounts of the necessary connection between law and morality grounded on the openness of communication is provided by Robert Alexy, who builds a discourse theory of law on the basis of Habermas’ theory of general practical discourse. In this article I argue that the thesis based on the openness of legal discourse is problematic in that it does not provide a convincing account of the differentiation of legal discourse from other practical discourses. I offer an understanding of the institutionalisation of legal discourse as the tacit commitment of the participants to their shared normative experience and in particular in: 1) the possibility of containing normative force in space, 2) the possibility of transforming word into deed, 3) the possibility of grasping and controlling time and 4) the possibility of transforming deed into word. That commitment of participants in legal discourse is revealed as a set of fundamental assumptions embedded in all legal utterances, which provide the necessary bedrock that makes communication possible. It also provides a basis for the institution of legal discourse, to the effect that their problematisation signifies a departure from the latter.     

法律逻辑：回顾与展望

法律逻辑的历史大致分为三个阶段：第一阶段主要是建立以传统逻辑或一阶逻辑内容为框架的法律逻辑体系,并将这些理论广泛地运用于法律思维领域之中;第二阶段主要是从法律适用问题的研究扩展到了法律发现或获取问题的研究;第三阶段主要是对事实发现、法律获取、诉讼主张与裁决证成的规律、规则与方法进行系统的研究,逐渐地建立以事实推理、法律推理、判决推理与法律论证理论为主要内容的不同于传统逻辑与一阶逻辑框架的法律逻辑体系,并将这些理论应用于事实的发现、法律的获取、诉讼主张与裁决的证立之中。     

The Inevitability of Moral Evaluation*

According to contemporary legal positivism, law claims to create obligations. In order for law to be able to create obligations, it must be capable of having authority. Legal positivism claims that for law to be capable of having authority, it only has to meet non‐moral or non‐normative conditions of authority. In this paper it is argued that law can only be capable of having authority if it also meets certain normative conditions. But if something must meet certain normative conditions in order to be capable of having authority and if it must be capable of having authority in order to be law, then it is only law if it is conceivable that it meets these normative conditions and this can only be ascertained by means of an evaluation. Therefore, legal positivism's claim that determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations (the separation thesis) is incompatible with its claim that law must be able to create obligations. Further, an analysis of Hart's concept of law shows that it is not only possible that the identification of the law depends on moral evaluation, as Hart claims, but that it is conceptually necessary that it does.     

An Integrated Model of Legal and Moral Reasoning and Rule-Violating Behavior: The Role of Legal Attitudes

Legal socialization theory predicts that attitudes mediate the relation between legal reasoning and rule-violating behavior [Cohn, E. S., & White, S. O. (1990). Legal Socialization: A Study of Norms and Rules. New York: Springer-Verlag]. Moral development theory predicts that moral reasoning predicts rule-violating behavior directly as well as indirectly [Blasi, A. (1980). Bridging moral cognition and moral action: A critical review of the literature. Psychological Bulletin, 88, 1–45]. We present and test an integrated model of rule-violating behavior drawing on both theories in a longitudinal study of middle school and high school students. Students completed questionnaires three times during the course of 1 year at 6-month intervals. Legal and moral reasoning, legal attitudes, and rule-violating behavior were measured at times one, two, and three respectively. Structural equation models revealed that while moral and legal reasoning were directly and indirectly related to rule-violating behavior among high school students, legal reasoning bore no direct relation to rule-violating behavior among middle school students. The implications for an integrated model of reasoning and rule-violating behavior are discussed.