The Special Case Thesis. An Assessment of R. Alexy's Discursive Theory of Law

Legal Argumentation Theories seek mainly to develop procedures, criteria and principles which can guarantee a proper justification of legal propositions within modern legal systems. In doing this, those theories solicit in general an interconnection between practical reasoning and legal reasoning. This paper refers mainly to what seems currently to be the most elaborate theory of legal argumentation, that is R. Alexy's Theorie der juristischen Argumentation. Although the discussion is mainly concentrated on critical points of R. Alexy's theory, this paper's scope is slightly broader; it attempts to present an overall view of the current discursive theory of law. This is mainly performed through the critical examination of R. Alexy's Special Case Thesis, which seems to raise a handful of counter arguments on behalf of the other proponents of Legal Argumentation. In the first part the special case thesis is presented, as well as the main objections to it. In the second part the validity of the special case thesis is checked against K. Günther's model of practical discourse, which proves to be more elaborate in certain points, when compared with the corresponding model of R. Alexy. In the third part it is shown that the special case thesis can be accepted consistently only if it is combined with a normative theory of law that advocates the interconnection of the concept of law with the idea of right morality. It is further suggested that legal discourse has to be perceived as a special case of a broader moral-political discourse that “explains” or “justifies” (morally) the various restrictions that the positive legal systems impose on the legal discourse.     

Critical Remarks on Robert Alexy's "Special-Case Thesis"*

Abstract
In this paper the author criticizes the way Robert Alexy reconstructs the relationship between legal and practical reasoning. The core of Alexy's argumentation (Alexy 1978) is considered the claim that legal argumentation is a "special case" of general practical discourse. In order to question this claim, the author analyzes three different types of argument: (1) that legal reasoning is needed by general practical discourse itself, (2) that there are similarities between legal argumentation and general practical discourse, (3) that there is a correspondence between certain types of argument in general practical discourse and in legal argumentation.**     

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.     

Argumentation and Interpretation in Law

Abstract
The author proceeds from a brief elucidation of the concept "argumentation" through a more extended account of substantive reasons in pure practical argumentation and of institutional argumentation applying "authority reasons" as grounds for legal decisions to an initial account of the nature and place of legal interpretative reasoning. Then he explores the three main categories of interpretative arguments, linguistic arguments, systemic arguments and teleological/deontological arguments; and he examines the problem of conflicts of interpretation and their resolution. His conclusion is that legal argumentation is only partly autonomous since it has to be embedded within widerelements of practical argumentation.     

Legal Certainty and Correctness

What is the relation between legal certainty and correctness? This question poses one of the perpetual problems of the theory and practice of law—and for this reason: The answer turns on the main question in legal philosophy, the question of the concept and the nature of law. Thus, in an initial step, I will briefly look at the concept and the nature of law. In a second step, I will attempt to explain what the concept and the nature of law, thus understood, imply for the relation between legal certainty and correctness. Here three issues will be considered: first, the Radbruch formula as an answer to the problem of extreme injustice; second, the special case thesis, which claims that legal argumentation is a special case of general practical argumentation; and, third, the problem of the judicial development of the law.     

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.     

On the Autonomy of Legal Reasoning*

Abstract The paper argues that reasoning according to law is an instance of moral reasoning. Several ways of understanding this claim are distinguished. A number of arguments to the effect that because of the internal logic of the law, or the special skills it involves legal reasoning should be seen as immune to moral considerations are rejected. Nevertheless, the paper affirms the relative and limited autonomy of legal reasoning, and the sui generis role of doctrine in it which is manifested in the many cases in which the moral considerations pertaining to the case underdetermine its result.     

Legal Rights and Moral Rights: Old Questions and New Problems*

Abstract. The author examines the discipline of moral rights and in particular the need to embed them in a consequential system. He argues that the widely held opinion that independence from consequential evaluation is the right way of guaranteeing individual freedom is based on an inadequate appraisal of the role of moral rights in the social context. In this perspective he examines two specific cases: (1) elementary political and civil rights, and (2) the reproductive rights of women in the context of poor countries with the problem of fast population growth. He argues that a coherent goal-rights system which accommodates rights among others goals, can overcome the non-consequential arguments and justify the force of moral rights fully within a consequentiality perspective.     

The Special Case Thesis and the Dual Nature of Law

In this article, I take up two arguments in favor of the discursive model of legal argumentation: the claim to correctness argument and the dual nature thesis. The argument of correctness implies the dual nature thesis, and the dual nature thesis implies a nonpositivistic concept of law. The nonpositivistic concept of law comprises five ideas. One of them is the special case thesis. The special case thesis says that positivistic elements, that is, statutes, precedents, and prevailing doctrines, are necessary for law in order to achieve legal certainty. Without this, law would not be as perfect as it could possibly be. But it says, at the same time, that this alone would not be enough to fulfill the claim to correctness. The claim to correctness refers not only to the real dimension of law, defined by statutes, precedents, and prevailing doctrines, but also to its ideal dimension, defined, first and foremost, by justice. The special case thesis is my oldest thesis. It has remained an essential element of my system over the years. Its connection with four other theses—the Radbruch formula, the human rights thesis, the idea of deliberative democracy, and principles theory—does not change this at all. On the contrary, this connection has lent greater strength to the special case thesis.     

Inclusive Legal Positivism,Legal Interpretation,and Value‐Judgments

In this paper I put forward some arguments in defence of inclusive legal positivism. The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism. I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. This is the case, for instance, with regard to the value‐freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value‐judgments in the cognitive activities of jurists and legal theorists.     

The Regular Practice of Morality in Law

Abstract. This article examines the possibility of moral considerations and arguments serving as validity conditions of law in legal positivist theory. I argue that, despite recent attempts, this possibility has yet to be established. My argument turns on a defense of Joseph Raz's Sources Thesis, yet I do not adopt his famous “argument from authority.” Rather, I offer a renewed defense of the distinction between creation and application of law and argue that moral considerations and arguments, whether recognized in law or not, remain arguments about the modification of law.     

Cognitive psychologists as expert witnesses

The first part of this paper defines a central problem for professional ethics: whether agents in professional roles are to act on their own moral perceptions or rather defer to those with special authority to make decisions within particular institutional settings. Specifically, should the psychologist decide for himself whether and how to testify as an expert witness, or should he allow the judge and lawyer to settle these questions for him? I argue that he must decide for himself and attempt to control the nature of his testimony. Given this preliminary conclusion, the second part of the paper argues on direct moral grounds first for a general presumption in favor of psychologists' testimony on the accuracy of eyewitnesses. Such testimony fits the legal criterion of reasonable doubt, if the psychologists' information is more accurate than that of the average juror and lawyer. Second, it is argued that the expert witness must resist intense adversarial pressures and present his testimony as impartially and objectively as possible.     

Retributivism and Legal Moralism

This article examines whether a retributivist conception of punishment implies legal moralism and asks what liberalism implies about retributivism and moralism. It makes a case for accepting the weak retributivist thesis that culpable wrongdoing creates a pro tanto case for blame and punishment and the weak moralist claim that moral wrongdoing creates a pro tanto case for legal regulation. This weak moralist claim is compatible with the liberal claim that the legal enforcement of morality is rarely all‐thing‐considered desirable. Though weak moralism has some plausibility, it does not follow from weak retributivism if legitimate state functions are limited in certain ways.     

Rights, Performatives, and Promises in Karl Olivecrona's Legal Theory

Abstract.  Karl Olivecrona (1971 ) maintains that "right" is a "hollow word," and so also for some other legal terms. "Right," he says, "has no conceptual background." He arrives at this position after an examination of metaphysical and naturalistic accounts, including American legal realism. Some of Olivecrona's arguments will be evaluated here. His position is influenced by Hägerström's theory of legal language, but he argues that Hägerström fails to account for how such terms as "right,""duty," etc. function in legal discourse and why they are useful. A parallel approach is also found in Olivecrona's book The Problem of the Monetary Unit (1957 ). Olivecrona is left with the problem of how such "hollow" terms function. His explanation is largely psychological. Going beyond J. L. Austin's notion of performatory language, he introduces the idea of performatory imperatives. I propose to submit Olivecrona's approach to a critical examination. It is suggested that had he started from everyday, nonlegal promises and commitments he might well have ended up with a different theory of legal language.     

On the Concept and the Nature of Law

Abstract. The central argument of this article turns on the dual‐nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual‐nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non‐positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non‐positivism) or, alternatively, is affected in no way at all by moral defects or demerits (super‐inclusive legal non‐positivism). The dual nature of law is expressed, on the one hand, by the Radbruch formula, which says that extreme injustice is not law, and, on the other, by the correctness argument, which says that law's claim to correctness necessarily includes a claim to moral correctness. Thus, what the law is depends not only on social facts, but also on what the law ought to be.     

Law as Co-ordination

Abstract. The concept of co-ordination problems helps solve the problem of authority and obligation in legal theory, but only if the concept is carefully distinguished from the game-theoretical concept of co-ordination problems and their solutions. After explaining the game-theoretical concept, the author defends its application to legal theory by reviewing the exchange he has had with Joseph Raz about the authority of law. Extending that debate, he argues that criticisms from Raz and others miss the point of the co-ordination thesis; its primary benefit is that it illuminates the source of law's moral authority in the way law enables individuals to co-ordinate their actions for the common good without imposing a national common enterprise upon them.     

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.     

The right,the good and the jurisprude

Legal philosophy must be based on a set of substantive political values about such fundamental matters as the nature of the political community and the meaning of human freedom. This general thesis is illustrated by the analysis of moral discourse about the justification and limits of liberty-rights and equality-rights.The most effective way of arguing about the liberal conception of individual liberties (consistent with the Millian Harm Principle) is by recourse to the priority of the right over the good. But this conception is little more than a restatement of the Harm Principle itself hence, a more fundamental justification for it is required. This can be provided by a substantive conception of equality of individuals as moral agents who are capable of choosing, pursuing and changing their own conceptions of the good, within the parameters of avoiding harm to others.In turn, the basic moral problem about equality-rights concerns the test of the discriminatory character of legal classifications. The insistence that immutable personal characteristics, such as race and sex, are prima facie discriminatory, can only be explained by an appeal to a notion of positive freedom: individuals should not be adversely affected by those characteristics over which they have no control.There is a significant parallelism in the discourse about liberty-rights and equality-rights: one is a mirror image of the other. This indicates that jurisprudence is incomplete without those more fundamental conceptions, such as equality of moral agents and positive freedom, and that a proper discourse about human rights is derivative from the ideal of a just society.I am grateful to Martin Krygier, Grant Lamond and David Mason for their helpful comments.