The Sheffield School and Discourse Theory: Divergences and Similarities in Legal Idealism/Anti‐Positivism*

Abstract. When first I began this paper, I envisaged it as a fairly straightforward exercise in comparison between the Sheffield School’s and Discourse Theory’s varieties of legal idealism or anti‐positivism (these terms being synonymous for the types of theory that contest positivism’s separation thesis, that is, the contention that there is no necessary conceptual connection between law and morality). One obvious distinction, for example, is between the moral substance at the heart of these respective theories: the Sheffield School’s legal theory being founded on Alan Gewirth’s Principle of Generic Consistency, and Alexy’s theory focusing on Radbruch’s intolerable degree of injustice. However, the more I thought about the two respective theories, the more interested I became in one particular issue: the denial of the separation thesis that constitutes legal idealism. Here, I present a paper which is not so much concerned with the substance of two different types of legal idealism or anti‐positivism, but which focuses on the question of whether and in what way either or both of the theories can correctly be characterised as legal idealist or anti‐positivist. I focus in this paper on two works in particular: Deryck Beyleveld and Roger Brownsword’s Law as a Moral Judgment (1994), and Robert Alexy’s The Argument from Injustice (2002).     

The Moral Foundation of Law and the Ethos of Liberal Democracies

This paper deals with the connection between law and morality. Such a connection is relevant for political theory, since demonstrating that law necessarily implies a claim to justice would require fundamental rights to be considered the horizon of any legal system, instead of being considered as dependent on the axiological context of liberal democracies. The paper approaches the controversy starting from an overview of the work of the German philosopher Robert Alexy, in particular his attempt to establish an analytical link between law and morality, and to this end considers law as a speech act with a claim to correctness. It then examines the critique put forward by Joseph Raz, that points out the lack of objectivity of this claim to correctness. In order to establish a moral foundation for law, the paper argues that it is necessary to take account of Karl‐Otto Apel's attempt to establish the transcendental foundation of language, as well as of Habermas' critique of that attempt. In conclusion, it is argued that the debate about a possible link between law and morality sheds new light on contemporary debates on liberal justification in political theory.     

Alexy on Necessity in Law and Morals*

Robert Alexy has built his original theory of law upon pervasive claims for “necessary” features of law. In this article, I show that Alexy's claims suffer from two difficulties. First, Alexy is never clear about what he means by “necessity.” Second, Alexy writes as if there have been no challenges to claims of conceptual necessity. There have been such challenges and Alexy needs to answer them if his project is to succeed.     

Legal System and Practical Reason. On the Structure of a Normative Theory of Law*

Abstract
It will be argued, firstly, that there is a link between the legal validity of a norm and the rational justifiability of a requirement that judges should apply this norm, based on a normative conception of legal validity and the postulate that judges should act as rational persons; secondly, that rational justifiability of legal norms requires the construction of a legal system in a model of principles that differs from theories, e.g., of Kelsen, Hart, Dworkin and Alexy, which are not fully adequate for a normative conception of law.     

原则理论与法概念争议

法理学中法概念之争的中心议题在于法律和道德在概念上是否存在必然联系,或者说法律效力和道德正确性之间是否存在必然联系。为了证立联系命题,阿列克西在其早先的原则理论的基础上提出了原则论据,后者包括安置命题、道德命题与正确性命题。在逐一检讨了这三个命题的恰当性以及其与联系命题间的关联度后可以认为,原则论据无法用来证立联系命题。但这并不表示联系命题就必然失败,因为原则理论可以别的方式来证明它。法概念的争议是有关法律效力判准的争议,最终是政治哲学上的争议。     

Resuscitation of a Phantom? On Robert Alexy’s Latest Attempt to Save His Concept of Principle

This paper is my contribution to round three of a longstanding debate between Robert Alexy and me about the principles theory’s concept of principle. In the first round, Alexy—bucking tradition—proposed a nongradualist distinction between rules and principles that divided the ontology of norms into two categorically distinct norm‐types. He connected this norm‐theoretical analysis with a theory of fundamental rights according to which such rights had to be understood as principles and thus interpreted as optimization requirements. In the first round I objected to the norm‐theoretical assumptions and questioned the doctrinal merit of the principles theory approach. Unlike Alexy, I saw no merit in his notion of principle over and above optimization requirements, which by that time Alexy, too, regarded as rules. In round two, Alexy defended his concept of principle by taking refuge in the notion of an ideal ought, which he defined as a command to be optimized. In this second round, I criticized the new attempt to save his view of principles on the ground that the norms Alexy had in mind optimized not commands but states of affairs and thus were ordinary norms or rules according to the misguided taxonomy of the principles theory. Alexy opened round three of our exchange by admitting that my critique of round two was justified and that he had erred in identifying principles as ideal commands to be optimized. He now proposes an index theory of principles. In the paper, I recapitulate the motive and the main points of our debate and scrutinize Alexy’s latest innovation.     

法律论证:一个关于司法过程的理论神话——以王斌余案检验阿列克西法律论证理论

阿列克西的法律论证理论无力为司法程序和司法判决提供有用的启示和指导,这种理论的前提缺乏经验基础,论证也出现了自相矛盾,并且由于忽略了司法过程中的交易成本和权力运作而从总体上误解了司法过程所追求的现实目标。当法官从实在法范围内无法获得令人满意的判决结果时,应当求助于社会科学的论证,而不是道德哲学的论证,后者无力为法律疑难问题提供决策方案,充其量也只能够大致满足公众寻找正当性依据的心理需求。     

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.     

When Is a Regime Not a Legal System? Alexy on Moral Correctness and Social Efficacy

Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress if others act violently towards them otherwise than in accordance with the rules. Alexy is correct in his conclusion that a system of norms that is not by and large socially efficacious is not a valid legal system, but wrong insofar as he follows legal positivism in distinguishing this aspect of law's validity from law's claim to moral correctness.     

A Critique of Alexy’s Claim to Correctness

This article offers an overview of the difficulties in Robert Alexy’s idea of law’s “claim to correctness.” The inquiry takes us deep into the nature of simple communication, back out to what it means to have a theory about the nature of law, and also in the direction of wondering about the interaction of legal theory and practical reasoning—reasoning about how we should best act. The article offers reasons to question whether law in fact makes claims, at least in any straightforward sense. Even if one brackets that matter, there are reasons to raise doubts about what is in fact implicit in the act of lawmaking. At one level, an act of lawmaking does implicitly assert the authority to act in that way. Whether it also implies that the content of the action is morally good, or at least not clearly morally bad, is, at a minimum, a harder question.     

解读阿列克西的宪法权利规范水平效力理论

阿列克西的宪法权利理论是有关公民宪法权利规范司法适用的理论,是有关公民之间宪法权利冲突与权衡的理论,因此该理论必然是有关宪法权利规范在公民之间进行司法适用的水平效力理论。因此,为使该理论能够成立,阿列克西一定要对其宪法权利规范水平效力的途径、内容、程度与合理性等问题进行理论上的建构。他的宪法权利规范水平效力建构的"三层次"说,是在德国的司法实践和学界的"客观价值辐射理论"和"三种模式"建构基础上所进行的整合与重构,具有很大的独特性、涵盖性与合理性。     

Cosmopolitan Duty and Legitimate State Authority

In this paper I apply a suitably developed version of Joseph Raz’s service conception of authority to the debate over the legitimacy of state action aiming to fulfill cosmopolitan moral obligations. I aim to advance two interrelated theses. First, viewed from the perspective of Raz’s service conception of authority, citizens’ moral duties to non-compatriots are an appropriate ground for authoritative intervention by agents of the state. Second, international law based on these duties can also enjoy moral authority over government decision makers. An important source of the moral force of international law is derived from the power of international law to improve officials’ ability to recognize and conform to the totality of their reasons, which contributes to their states’ legitimacy.     

法律实证主义的强立场——兼评拉兹《法律的权威》

在法律与道德的关系上,拉兹认为有效法律的鉴别标准完全排除道德论证,这就是拉兹的渊源论.渊源论表明所有的法律都具有渊源,渊源论的论据来自权威论.权威以理由为基础,是改变行为理由的能力.法律也要主张权威,法律主张合法性权威是它的一个本质特征.权威性理由是排他性理由,排除了道德因素的可能性,权威论支持了渊源论.权威论受到了来自包容性实证主义者和德沃金的批评,他们的争论共同推进了对法律与道德关系问题的研究.     

二元规范理论下的法律原则检讨

当下法律原则理论的论争重心,已从"法律是什么"的概念分析,转向了司法实践中的原则裁判。自德沃金以来的"规则-原则"二元规范理论,对实际的司法裁判的解说力和作用力较为有限,也未能解决原则权衡这一关键性问题。"融贯性"命题和"籍由法政策权衡进行裁判"命题,是原则裁判理论的两大基石。但德沃金对融贯性命题的回答过于抽象,而阿列克希依比例原则和权重公式对权衡命题和原则理论的最新推进,却是一种不成功的自反性进化。这种自反性进化和理论反讽,表明作为一种"过度整合式"的裁判理论,原则裁判已然走到了穷途末路。     

中国传统社会基层治理的法律机制与经验

基层社会治理对于整体社会治理起着重要的基础和支撑作用.在中国传统社会的基层治理中,形成了一套圆融自洽、顺利运行的法律机制,其中蕴含了我国在基层社会治理方面的宝贵经验.传统儒家法与道德相混成,一直将道德教化作为重要的社会治理手段,德治与法治相结合;而基层的自治制度,不论在立法还是司法上,都为国家法律体系的有机组成部分.中...     

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.     

The Structure of Social Practices and the Connection between Law and Morality*

In his work, Jules Coleman has held that the rule of recognition, if conceived of as a shared cooperative activity, should be the gateway through which to incorporate moral constraints on the content of law. This analysis, however, leaves unanswered two important questions. For one thing, we do not know when or even why morality becomes a criterion of legality. And, for another thing, we still do not know what conception of morality it is that we are dealing with. In this article, we will attempt to clarify in greater depth what relations there are between the social practice of law and morality. We will thus see how the cooperative nature of social practices imbues law with a moral force, and how this makes it possible to establish a “weak” connection between law and morality: To see this, we will need to single out some basic features of cooperative social practices, thus setting out a suitable framework for the view just mentioned.     

Consequences of Tit‐for‐Tat Enforcement: Toward a Hippocratic Principle of Regulatory Implementation

The article discusses when tit‐for‐tat enforcement, an important strategy in responsive regulation theory, may generate intended reactions in communities of regulatees. Combining insights from compliance motivation theory, responsive regulation theory, and ethnographic studies of compliance, I hypothesize that tit‐for‐tat enforcement's probability of success depends on regulators’ institutionalized capacity to promote law–morality correspondence. Building such institutionalized capacity—so‐called “embeddedness”—simultaneously increases requirements for inspectorates’ competence. This article addresses three forms of law–morality correspondence: moral support for the law's content, the legislator's authority, and harmony between legal and moral guilt criteria.     

Law and Morality at War

Through a critical engagement with Jeremy Waldron’s work, as well as the work of other writers, I offer an account of the relative scope of the morality of war, the laws of war, and war crimes. I propose an instrumentalist account of the laws of war, according to which the laws of war should help soldiers conform to the morality of war. The instrumentalist account supports Waldron’s conclusion that the laws of war justifiably prohibit attacks on civilians even if it turns out that some civilians lack a moral right not to be killed. Importantly, the instrumentalist account also offers what Waldron thinks impossible: a non-consequentialist defense of the failure of the laws of war to prohibit the killing of nonthreatening combatants. Finally, I argue that new war crimes can be broader than the morality of war as well as established laws of war and that many of the arguments for defining war crimes more narrowly than either the morality of war or the laws of war are unconvincing. In all of these ways, I hope to carry forward Waldron’s project of exploring the relationship between law and morality in war.     

Fundamental Rights: Between Morals and Politics

Starting from the impossibility of understanding fundamental rights from the standpoint of natural law doctrine or positivism, the author tackles the issue of rights from a realistic point of view, that is to say from the perspective of law and politics on the one hand, and from the perspective of public morality, on the other. Thus the foundation of fundamental rights is the meeting point of conceptions of social morality that are current in the modern world and the political aspect of the conception of pluralist democracy. Moreover, fundamental rights are considered an instrument to enable the social and moral development of human beings.