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Discourse, Principles, and the Problem


of Law and Morality: Robert Alexy's
Three Main Works
a
Martin Borowski
a
Reader in Law, University of Birmingham, UK.
Published online: 07 May 2015.

To cite this article: Martin Borowski (2011) Discourse, Principles, and the Problem of Law and
Morality: Robert Alexy's Three Main Works, Jurisprudence: An International Journal of Legal and
Political Thought, 2:2, 575-595, DOI: 10.5235/204033211798716899

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(2011) 2(2) Jurisprudence 575595

Discourse, Principles, and the Problem


of Law and Morality:
Robert Alexys Three Main Works

A Theory of Legal Argumentation (Oxford University Press, 2009) ISBN: 978-0199584222


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A Theory of Constitutional Rights (Oxford University Press, 2009) ISBN: 978-0199584239


The Argument from Injustice (Oxford University Press, 2009) ISBN: 978-0199584215

Martin Borowski*

Robert Alexy counts as one of Germanys most influential contemporary legal


philosophersboth at home and abroad. His work on discourse theory, on princi-
ples theory, and on the problem of law and morality has received considerable
attention for decades. Prompted not least by the publication of translations of two
of Alexys books into English in 2002,1 interest in his theory in the Anglo-Saxon world
has grown by leaps and bounds. It will suffice to mention the debate between
Joseph Raz and Alexy, documented in an exchange in a collection of papers from
2007 (Law, Rights, and Discourse, edited by George Pavlakos (Hart Publishing)).
Another collection of papers devoted to the work of Alexy (Institutionalized Reason,
edited by Matthias Klatt (Oxford University Press)) is about to appear.
Oxford University Press has now published translations of Alexys three main
books in paperback. Even though Alexy has refined and developed further many ele-
ments of his theory in numerous articles and book chapters, these three treatises
represent the core of his work. They lay the foundation for the three main strands
in his uvre: discourse theory, principles theory, and a non-positivistic concept of law.
This article is devoted to a critical introduction to these three motifs as they have
been developed by Alexy.

* Reader in Law, University of Birmingham, UK.


1 In 2002 English translations of Alexys second and third books were published: (1) Robert Alexy, A
Theory of Constitutional Rights, Julian Rivers (trans) (Oxford University Press), and (2) Robert Alexy,
The Argument from Injustice: A Reply to Legal Positivism, Bonnie Litschewski Paulson and Stanley L Paul-
son (trans) (Clarendon). The translation of his first book had already appeared in 1989: Robert Alexy,
A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, Ruth Adler
and Neil D MacCormick (trans) (Clarendon).

575
576 Jurisprudence

I. DISCOURSE THEORY: A THEORY OF LEGAL ARGUMENTATION 2

Alexys first book, A Theory of Legal ArgumentationThe Theory of Rational Discourse as


Theory of Legal Justification, was first published in German by Suhrkamp in 1978. The
German edition has been reprinted several times over the past three decades and
has been translated into a number of foreign languages.3 The translation into Eng-
lish was undertaken by Ruth Adler and Neil D MacCormick; it appeared with
Clarendon Press in a hardcover edition in 1989.

(i) Discourse Theory

Central to Alexys approach to legal argumentation is discourse theory. This theory


was originally developed in German philosophyparticularly by Karl-Otto Apel, Jr-
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gen Habermas and Robert Alexyin the 1960s and 1970s, and it has been discussed
ever since. Discourse theory manifests the principles of universality and autonomy.
A rational discourse is a vindication of reasons set out on behalf of a claim of valid-
ity.
Two main assumptions are characteristic of the theory of rational discourse. The
first is that agreement in the discourse turns on arguments rather than intuitions.
The second is expressed by Habermass discourse principle, endorsed by all sup-
porters of discourse theory: Just those action norms are valid to which all possibly
affected persons could agree as participants in rational discourses.4 Alexys approach
reflects Jrgen Habermass writings along with other approaches in analytic moral
philosophy, in particular Richard Hares theory and the new rhetorics of Chaim
Perelman.
Discourse theory is a procedural theory. A normative assertion is correct if it can
be seen as the result of a discourse qua procedure. The procedure is defined by the
conditions of discursive rationality; Alexy characterises these conditions by means of
28 rules and forms of general practical discourse.5 He distinguishes different meth-
ods for the justification of these rules. The transcendental-pragmatic method counts as
the most powerful; it is, however, by far the most complex method, which gives rise
to various questions and problems.6 The key to this method is the thesis that some
rules are conditions of the possibility of linguistic communication.
Alexy distinguishes six groups of discourse rules. To begin with, there are basic
rules whose validity counts as a precondition for the possibility of every linguistic com-

2 Hereinafter Legal Argumentation. All references are to the 2009 edition.


3 Translations into English, Spanish, Italian, Portuguese, Lithuanian, Chinese and Korean have already
been published. A translation into Japanese is in progress.
4 Jrgen Habermas, Between Facts and Norms, William Rehg (trans) (Polity, 1996) 107.
5 These rules and forms are listed in an appendix; see Legal Argumentation 297302.
6 On the transcendental-pragmatic method, see Karl-Otto Apel, Das Apriori der Kommunikations-
gemeinschaft und die Grundlagen der Ethik in Transformation der Philosophie vol 2 (Suhrkamp, 1973)
358435; Karl-Otto Apel, Sprechakttheorie und transzendentale Sprachpragmatik zur Frage ethis-
cher Normen in Sprachpragmatik und Philosophie (Suhrkamp, 1975) 10173. See also the contributions
in Andreas Dorschel, Matthias Kettner, Wolfgang Kuhlmann and Marcel Niquet (eds), Transzenden-
talpragmatik (Suhrkamp, 1993).
Discourse, Principles, and the Problem of Law and Morality 577

munication,7 among them the rule that no speaker may contradict himself. Second,
rationality rules demand that every assertion must be justifiable and establish the
equal standing of discourse participants, universality and freedom from coercion.8
The system is completed by rules for allocating the burden of argument, an analysis of the
argument forms characteristic of practical discourse, the justification rules, and finally
the transition rules, rules for the transition from general practical discourse to an
empirical discourse, a linguistic-analytical discourse, or a discourse-theoretical dis-
course.9
In A Theory of Legal Argumentation Alexy leaves open the question of whether nor-
mative statements can be true or false rather than only correct and incorrect.10
In a recent article he answers this question affirmatively. Arguing on behalf of what
he terms weak realism, Alexy claims that the existence of a normative fact depends
on the justifiability of a corresponding sentence.11 Another development in Alexys
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theory that has taken place after the publication of his first monograph is his
emphasis, beginning in the 1990s, on substantive implications of the procedural the-
ory by employing his version of discourse theory for the justification of human rights
as moral rights.12

(ii) Alexys Theory of Legal Argumentation

Alexys theory of general practical discourse serves as the foundation of his theory
of legal argumentation. He characterises legal discourse as a special case of general
practical discourse.13 This special case thesis, which he has defended subsequently
in various articles,14 has sparked lively debate.15 The claim to correctness plays a key
role in Alexys justification of this thesis.16 The fact that the claim to correctness is

7 Legal Argumentation 188.


8 Ibid, 1923.
9 Ibid, 195206.
10 Ibid, 1778 fn 3.
11 Robert Alexy, The Dual Nature of Law (2010) 23 Ratio Juris 16782, 172 fn 4.
12 Robert Alexy, A Discourse-Theoretical Conception of Practical Reason (1992) 5 Ratio Juris 14352;
Robert Alexy, Discourse Theory and Human Rights (1996) 9 Ratio Juris 20935; Robert Alexy, Dis-
course Theory and Fundamental Rights in Agustn Menndez and Erik Oddvar Eriksen (eds), Arguing
Fundamental Rights (Springer, 2006) 129.
13 Legal Argumentation 15, 19, 212.
14 Robert Alexy, Problems of Discursive Rationality in Law in Werner Maihofer and Gerhard Sprenger
(eds), Law and the States in Modern Times (Steiner, 1990) 1749; see also Robert Alexy, Jrgen Haber-
mass Theory of Legal Discourse (1995/96) 17 Cardozo Law Review 102734, 10334; Robert Alexy,
Nachwort (Postscript) in Robert Alexy, Theorie der juristischen Argumentation (Suhrkamp, 3rd edn
1996) 399435, 42635; Robert Alexy, Legal Argumentation as Rational Discourse (1993) 70 Riv-
ista Internazionale de Filosofia 16578, 1718; Robert Alexy, The Special Case Thesis (1999) 12 Ratio
Juris 37484. For a defence of the special case thesis, see also Carsten Bcker, Begrnden und Entschei-
den (Nomos, 2008) 190268. Specifically against Klaus Gnthers criticism, see Ingrid Dwars,
Application Discourses and the Special-Case-Thesis (1992) 5 Ratio Juris 6778.
15 Critical of the special-case-thesis: Habermas (n 4) 18793; Klaus Gnther, Critical Remarks on
Robert Alexys Special-Case Thesis (1993) 6 Ratio Juris 14356; see also Ulfried Neumann, Zur Inter-
pretation des forensischen Diskurses in der Rechtsphilosophie von Jrgen Habermas (1996) 27
Rechtstheorie 41526, 41722; see finally Ulrich Neumann, Discourse Theory in Christopher Berry
Gray (ed), The Philosophy of Law, vol 1 (Garland, 1999) 21214, 213.
16 Legal Argumentation 21417.
578 Jurisprudence

also advanced on behalf of non-positivism17 suggests that there may well be intrin-
sic connections between the special case thesis and non-positivism.
Alexy then outlines his theory of legal argumentation. Following Jerzy
Wrblewski,18 he distinguishes between two aspects of justification of a legal decision,
internal and external justification. Internal justification is concerned with the logi-
cal structure of the premises and the conclusion, external justification with the
correctness of the premises.19 In his analysis of internal justification, Alexy presents
a logical reconstruction of subsumption.20 In his first book Alexy focuses com-
pletely on subsumption as a method of law application. He added the analysis of the
internal justification of balancing judgmentsthe weight formulain later publi-
cations.21 The most recent development in his theory of legal argumentation is an
enquiry into the structure of the comparison of cases or analogy as a third basic
method of law application.22
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The greater part of the remaining pages of Alexys first book is devoted to
outlining six groups of forms and rules of external justification of legal decisions
taken by means of subsumption. To mention only those three that have received
the most attention, Alexy sketches the traditional canons of interpretation, doctrinal
reasoning, and the use of precedent. The section on the canons of interpretation
contains a condensed yet rich reconstruction of the well-known arguments for
interpreting legal rules: semantic arguments (wording), genetic arguments
(legislative intent), historical arguments, comparative arguments, systematic argu-
ments, and finally teleological arguments. Doctrinal reasoningthe expression is
used here to translate dogmatische Argumentationrefers to the conceptual and
systematic analysis of the law in force.23 This dimension of interpretation has been
developed in the German tradition at great length, although it is not confined to this
tradition. Finally, Alexy reconstructs the use of precedent in legal interpretation.
Considering that in the German law tradition precedents count merely as factually
relevant phenomena rather than as a source of law,24 it is noteworthy that Alexy
argues25 on behalf of a burden of persuasion borne by anyone who wishes to depart

17 See section III.


18 Jerzy Wrblewski, Legal Decision and its Justification in Hubert Hubien (ed), Le raisonnement
juridiqueactes du congrs mondial de philosophie du droit et de philosophie sociale (Bruylant, 1971) 409
19, 41112; Jerzy Wrblewski, Legal Syllogism and Rationality of Judicial Decision (1974) 5
Rechtstheorie 3346, 39 et passim. On this distinction see also Aulis Aarnio, The Rational as the Reason-
able (Reidel, 1987) 11920; Jos Juan Moreso, On Relevance and Justification of Judicial Decisions
(1996) 44 Erkenntnis 73100.
19 Legal Argumentation 221.
20 Ibid, 22130. See also Robert Alexy, On Balancing and SubsumptionA Structural Comparison
(1999) 16 Ratio Juris 43349, 4335.
21 See section II(v).
22 Robert Alexy, Two or Three? in Martin Borowski (ed), On the Nature of Legal Principles (Steiner, 2010)
918.
23 Legal Argumentation 251.
24 See eg Karl Larenz, Methodenlehre der Rechtswissenschaft (Springer, 5th edn 1983) 41315.
25 Legal Argumentation 2758. See also Robert Alexy and Ralf Dreier, Precedent in the Federal Repub-
lic of Germany in Neil D MacCormick and Robert S Summers (eds), Interpreting Precedents (Ashgate
and Dartmouth, 1997) 1764, 4347.
Discourse, Principles, and the Problem of Law and Morality 579

from a precedent. This weight, granted to precedents in and of themselves, lends


them a normative status that transcends a characterisation in merely factual terms.

(iii) Towards a Universal Theory of Legal Argumentation

This last point underscores an important characteristic of Alexys theory of legal


interpretation. While his theory reflects the German tradition, it departs a great deal
from what is peculiar to the German legal system. Now that Alexy has added the com-
parison of cases or analogy as a third basic method of law application, alongside
balancing and subsumption,26 the outline of a truly universal theory of legal argu-
mentation emerges, in which the Continental tradition and the Anglo-Saxon
tradition are brought closer together.
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II. PRINCIPLES THEORY: A THEORY OF CONSTITUTIONAL RIGHTS 27

Alexys second book, A Theory of Constitutional Rights, published in German by


Nomos in 1985 and reprinted five times by Suhrkamp, has been translated, to date,
into four languages.28 The translation into English by Julian Rivers was published by
Oxford University Press in 2002.29
This book quickly became the most influential German treatise in the post-War
period on the theory of constitutional rights. Considering the impact that the Ger-
man doctrine of constitutional rights has had on the analysis of European
fundamental rights, not least vis--vis the Charter of Fundamental Rights of the Euro-
pean Union (hereinafter ChFR), Alexys approach has received a great deal of
attention in Europe. The translation contains a postscript30 with replies to critics and
some important innovations, along with an extensive and unusually informative intro-
duction by Julian Rivers, entitled A Theory of Constitutional Rights and the British
Constitution.31

(i) Key Ideas

The linchpin of Alexys treatise is the analysis of the structure of constitutional rights
against the backdrop of balancing according to proportionality. Proportionality, in
turn, is understood against the backdrop of the distinction between rules and prin-
ciples. In the middle of the 1980s, proportionality and balancing had acquired a
central role in German constitutional law, above all in the case law of the German

26 See n 22.
27 Hereinafter Constitutional Rights. All references are to the 2009 edition.
28 English, Spanish, Portuguese, Korean and Polish. Translations into Italian, Japanese and Chinese are
in progress.
29 See n 1.
30 Robert Alexy, postscript to Constitutional Rights 388425.
31 Julian Rivers, A Theory of Constitutional Rights and the British Constitution in Constitutional Rights
xviili.
580 Jurisprudence

Federal Constitutional Court.32 The theory of legal interpretation in Germany at that


time focused, however, on subsumption as the traditional method of law application.
It was then unclear whether and to what extent balancing could count as a rational
method of applying the law rather than a mere faade for pure decisionism. Alexys
ingenious idea was to establish a connection between (1) the distinction between
rules and principles, developed in the debate on the concept of law in legal philos-
ophy,33 and (2) the principle of proportionality in constitutional law. Principles,
according to Alexy, are characterised by their dimension of weight34 and by the need
in their application for balancing.35 Balancing competing rights and goods is also
characteristic of the third stage of applying proportionality in its broader sense. This
led Alexy to the following key tenet: The nature of principles implies the principle
of proportionality and vice versa.36 This is to say that the application of principles
implies the application of proportionality, and that where proportionality is applied,
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principles are applied. Given the ubiquity of proportionality in German constitu-


tional law (and beyond), this insight makes clear that constitutional law is in good
part balancing rather than only subsumption. To be sure, this does not mean that
everything becomes a matter of balancing, as critics of this approach would have us
believe.37 If one wants to take provisions in written constitutions seriously, one has
to interpret them, according to Alexy, as containing a level of rules that is defini-
tively binding in the application of the law.38 This level of rules is complemented by
a level of principles that fills in the frame created by the rules.39 The fact that, as a
rule, both levels are combined establishes the double aspect of constitutional rights
provisions.40
After laying a number of theoretical foundations in the first two chaptersnot
least his semantic concept of norms, according to which a norm is the meaning of
a normative statement41Alexy develops at length his approach to the structure of
legal norms that grant constitutional rights, with the distinction between rules and

32 The idea of proportionality continues to win support, both in Europe and internationally. It plays a
key role in the case law of the European Court of Human Rights in Strasbourg and in the case law
of the European Court of Justice in Luxembourg. On the German origins of proportionality see Paul
Craig and Grinne de Brca, EU Law: Text, Cases and Materials (Oxford University Press, 5th edn 2011)
526: most fully developed within German law. See also Moshe Cohen-Eliya and Iddo Porat, Amer-
ican Balancing and German Proportionality: The Historical Origins (2010) 8 International
Constitutional Law 26386, 2716. On the importance of proportionality from an international point
of view see David M Beatty, The Ultimate Rule of Law (Oxford University Press, 2004).
33 The distinction between rules and principles was introduced into the modern debate on the concept
of law by Ronald Dworkin in his attack on HLA Harts positivistic theory; see R Dworkin, The Model
of Rules (1967) 35 University of Chicago Law Review 1446, 2229; reprinted as a chapter 2 in R
Dworkin, Taking Rights Seriously (Harvard University Press, 1977).
34 On the dimension of weight as a characteristic of principles see also Dworkin, Taking Rights Seriously,
ibid, 2627.
35 Constitutional Rights 5056.
36 Ibid, 66.
37 See eg Ralf Poscher, Grundrechte als Abwehrrechte (Mohr Siebeck, 2003) 81.
38 Constitutional Rights 8284.
39 Ibid, 8086.
40 Ibid, 84, emphasis omitted.
41 Ibid, 2125.
Discourse, Principles, and the Problem of Law and Morality 581

principles at its centre. Other important elements of Alexys general theory of con-
stitutional rights are the analysis of these rights as subjective rights or claim-rights,42
a critical reconstruction of Georg Jellineks influential theory of legal status,43 which
forms the basis of a reconstruction of different categories of rights in traditional bills
of rights, and, finally, a reconstruction of the phenomenon of the limitation of
rights.44

(ii) The General Right to Liberty

In the following three chapters, Alexy takes up the structure of three categories of
rights against the backdrop of the model developed thus far: liberty rights, equality
rights, and positive rights. To begin with, Alexy analyses and defends the general right
to liberty.45 International instruments on the protection of human rights usually do
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not explicitly protect such a right, and philosophical justifications of human rights
do not always extend to this right.46 Specific liberty rights or negative rights, such as
the right to life or freedom of expression, are usually in the limelight. The German
Federal Constitutional Court has, however, interpreted the right to the free devel-
opment of the individual according to Article 2(1) Basic Law ever since the famous
Elfes decision of 1957 as granting the prima facie right to general liberty.47 Despite spo-
radic critical voices48 this interpretation has met with general approval among
commentators in German constitutional law. Neither the European Convention on
Human Rights (ECHR) nor the ChFR has an explicit provision protecting the gen-
eral right to liberty. A generous interpretation of the scope of Article 8 ECHR and

42 Ibid, 11120.
43 Ibid, 16377.
44 Ibid, 178222.
45 Ibid, 22359.
46 For example, John Rawls clarifiedagainst the backdrop of Harts criticismthat liberty as such
does not count as a basic liberty in the sense of his first principle of justice. John Rawls, Political Lib-
eralism (Columbia University Press, 1992) 2912. See also John Rawls, Justice as Fairness (Belknap, 2001)
44. See also Dworkin, Taking Rights Seriously (n 33) 267: [I]t seems absurd to me to suppose that men
and women have any general right to liberty at all. The reason for Rawlss reluctance is the absolute
priority that he attributes to his basic liberties following his first principle of justice (on this
absolute priority see Rawls, Political Liberalism (ibid) 6 et passim; Rawls, Justice as Fairness (ibid) 4647
et passim). Such absolute priority of liberty as such is hardly reasonable. The same applies to a strong
presumption in favour of liberty as such, which Dworkins idea of rights as trumps would suggest
(see Ronald Dworkin, Rights as Trumps in Jeremy Waldron (ed), Theories of Rights (Oxford University
Press, 1984) 15368). If, however, one is willing to accept that rights can have a prima facie priority
rather than absolute priority, and that such prima facie priority can be weak rather than strong, then
liberty as such can indeed be protected by a fundamental or constitutional right. Interestingly, Rawls,
after having declined the idea of liberty as such as a basic liberty, continues: There is, to be sure,
a general presumption against imposing legal and other restrictions on conduct without sufficient
reasons (Political Liberalism (ibid) 292). The general right to liberty reflects precisely this pre-
sumption.
47 BVerfGE (Decisions of the Constitutional Court of the Federal Republic of Germany) 6, 32 (37). Con-
firmed in BVerfGE 80, 137 (1523).
48 Konrad Hesse, Grundzge des Verfassungsrechts (CF Mller, 20th edn 1995) 1835; Hans Peters, Das Recht
auf freie Entfaltung der Persnlichkeit in der hchstrichterlichen Rechtsprechung (Westdeutscher, 1963).
582 Jurisprudence

Article 7 ChFR covers, however, in good part the most important aspects of a gen-
eral right to liberty. If one takes liberty seriously, there is hardly a convincing
argument not to require public authority to justify any interference with the indi-
viduals liberty properly49no more is required by the general right to liberty.

(iii) The General Right to Equality

While the fundamental structure of liberty rightsscope, interference, and justifi-


cation of the interferenceis beyond controversy, the structure of equality rights is
far less clear. Alexy carefully analyses the case law of the German Federal Constitu-
tional Court on the general right to equality according to Article 3(1) Basic Law
against the backdrop of his general model of equality rights, which is based on prin-
ciples theory.50 This is to say that the application of the general right to equality
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requires balancing. Since equality represents complex issues, the question as to what
is balancednot only on the side of the limiting reasons, but also on the side of
equalityarises in a sharp form. Alexy underscores the crucial distinction between
legal and factual equality. Legal equality requires prima facie equal treatment; it is act-
related. Factual equality, he continues, is concerned with the factual consequences
of state action; it is consequence-related.51 If it is necessary to treat people differ-
ently (eg to support a certain group of people to a greater extent than others) with
an eye to bringing about equal consequences, factual equality requires prima facie a
different treatment. Alexy refers to the fact that legal and factual equality often point
prima facie in different directions as the paradox of equality.52 He argues on behalf
of a model that also embraces the principle of factual equality, although a consid-
erable presumption in favour of legal equality is understood.53 Even if Alexys
outline of the structure of equality rights falls short of a fully and comprehensively
developed doctrinal model, and even if he does not analyse special equality rights
at all, the basic idea of reconstructing the application of equality rights as balancing
principles has been powerfully confirmed by the success of the idea of applying pro-
portionality in the context of equality rights. If and when courts ask whether the
reasons for treating persons differently outweigh the interest of individuals in being
treated equally, they undertake a balancing according to proportionality. The case
law of the European Court of Human Rights in Strasbourg on equality rights can be
read along these lines,54 and this approach has also been confirmed for more than

49 See also John Rawlss general presumption against imposing legal and other restrictions on conduct
without sufficient reasons as cited in n 46. The idea of a general right to liberty is also endorsed by
Jrgen Habermas (n 4) 122. See furthermore HLA Hart, Are there Any Natural Rights? in Jeremy
Waldron (ed), Theories of Rights (Oxford University Press, 1984) 77109, 77: [I]f there are any moral
rights at all, it follows that there is at least one natural right, the equal right of all men to be free.
50 Constitutional Rights 26087.
51 Ibid, 276.
52 Ibid, 277.
53 Ibid, 27885.
54 See Aalt Willem Heringa and Fried van Hoof, Prohibition of Discrimination (Article 14) in Pieter
van Dijk, Fried van Hoof, Arjen van Rijn and Leo Zwaak (eds), Theory and Practice of the European Con-
vention on Human Rights (Intersentia, 4th edn 2006) 102751, 1041 (with references to the case law).
Discourse, Principles, and the Problem of Law and Morality 583

three decades by the new formula of the German Federal Constitutional Court in
the interpretation of the general right to equality according to Article 3(1) Basic
Law.55 It is reasonable to expect that Article 20 ChFR will be understood in the same
way.

(iv) Positive Rights

Finally, the structure of positive rights is unclear and contested. Alexy distinguishes
three categories of positive rights, which share the same general structure, although
they are very different from a normative point of view: protective rights, social
rights, and rights to organisation and procedure. Protective rights are rights against
the state to be protected from interferences by third parties.56 Protective rights
stand in the tradition of liberalism; they protect the individuals liberty in circum-
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stances in which the individual is not in a position to protect himself. Protective


rights, unlike social rights, do not give rise, in principle, to an appreciable financial
burden.57 Just as with liberty rights or negative rights, Alexy also reconstructs posi-
tive rights as principles.58 He emphasises their main structural difference by
comparison with negative rights or liberty rights: While negative rights or liberty
rights demand that the state refrain from any unjustified interference, positive
rights demand that some one sufficient positive action be taken.59 This difference has
implications for the application of proportionality in the context of positive rights,
which Alexy did not, however, explore in greater detail in his treatise.60
In the final chapter Alexy returns to general issues. In the first section, horizontal
effect or the Third Party Effect of constitutional rights takes centre stage,61 followed
by a section on the characteristics of constitutional rights in legal argumentation.62

(v) The PostscriptDiscretion, Formal Principles, and the Weight Formula

The translation of Alexys second book into English contains a postscript, specifically
written for this translation published in 2002.63 There Alexy defends his theory
against criticism and develops further some elements of his reconstruction of con-

55 For a structural analysis of the new formula in the interpretation of Article 3(1) Basic Law, see Mar-
tin Borowski, Grundrechte als Prinzipen (Nomos, 2nd edn 2007) 41316.
56 Constitutional Rights 300.
57 This actually depends on the means required for the protection of the holder of the protective right.
Often protection can be achieved by a prohibition of certain behaviour on the part of a third party,
for example, the prohibition of murder in criminal law. Such a prohibition requires enforcement,
which, in turn, requires financial resources. Compared to the redistribution of wealth that social rights
require prima facie, the financial support required for respecting protective rights is, however, mod-
est.
58 Constitutional Rights 309, 343 et passim.
59 Ibid, 308.
60 On proportionality in the application of protective rights, see Robert Alexy, On Constitutional Rights
to Protection (2009) 3 Legisprudence 117.
61 Constitutional Rights 35165.
62 Ibid, 36587.
63 See n 30.
584 Jurisprudence

stitutional rights. Not least, he enquires comprehensively into different forms of dis-
cretion. In particular, the objection has been raised that constitutional review of
parliamentary statutes cannot be reconciled with democracy.64 The authority of the
democratically elected legislature requires, so say the critics, that parliamentary
statutes be respected. In legal systems in which a constitutional court or a Supreme
Court is explicitly empowered to review statutes,65 the authority of statutes cannot
be absolute. A reasonable compromise between the authority of the democratically
elected parliament and the power of the courts to review the constitutionality of
statutes is required. According to Alexy, the import of this compromise can be recon-
structed in a model of balancing substantive and formal principles. Substantive
principles66 count as reasons for a decision, reasons that reflect the substantive con-
tent of the principle. By contrast, formal principles were introduced into principles
theory with an eye to reconstructing the authoritative dimension of certain decisions,
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eg authoritative decisions of the legislature and of the courts. Related to this idea
of formal principles are Dworkins conservative principles, which incline towards
the status quo.67 Alexy had mentioned the distinction between substantive and for-
mal principles briefly in the original text of his treatise;68 he develops it further,
however, in the postscript.69
Formal principles are indeed crucial for a reconstruction of the legal system of
liberal democracies, for authoritative decisions form an essential element in these
legal systems. Opinion on formal principles is, however, divided. Some commenta-
tors reject the idea of formal principles altogether.70 Even among those who support
it, quite different models of considering formal principles in the balancing are pro-
posed. Jan-Reinard Sieckmann has advanced a model of balancing formal principles
with each other.71 Others, among them Alexy, propose, however, a model in which
a formal principle is considered in the balancing of substantive principles.72

64 See Habermas (n 4) 23886; Jeremy Waldron, Law and Disagreement (Clarendon, 1999) 2914 et pas-
sim; Jeremy Waldron, The Core of the Case Against Judicial Review (2006) 115 Yale Law Journal
13461406, 138695.
65 Examples are national legal orders with a constitutional court such as the German legal order, the
legal order of the European Union with the European Court of Justice empowered to review legal
acts of the Union, and, in a sense, the legal orders of the Member States of the ECHR, since the Euro-
pean Court of Human Rights in Strasbourg is empowered to review national acts of public authority
by the yardstick of the Convention rights.
66 The expression substantive principle appears for the first time in Dworkin, Taking Rights Seriously
(n 33) 38.
67 Ibid, 3738. Insofar as the status quo is based on an authoritative decision, formal principles in Alexys
sense and Dworkins conservative principles point in the same direction.
68 Constitutional Rights 58, 82.
69 Postscript to Constitutional Rights 41522.
70 See Ralf Poscher, Insights, Errors, and Self-Misconceptions of the Theory of Principles (2009) 22
Ratio Juris 43955, 444 with further references.
71 See Jan-Reinard Sieckmann, Regelmodelle und Prinzipienmodelle des Rechtssystems (Nomos, 1990) 1624;
Jan-Reinard Sieckmann, Recht als normatives System (Nomos, 2009) 2004.
72 Alexy, postscript to Constitutional Rights 414 et passim. For a different model of balancing formal and
substantive principles, see Martin Borowski, The Structure of Formal Principles in M Borowski (ed),
On the Nature of Legal Principles (Steiner, 2010) 1935, 2535.
Discourse, Principles, and the Problem of Law and Morality 585

Alexys model of balancing formal and substantive principles raises a number of


questions. He explicitly advances the Law of Combination, according to which for-
mal principles can override substantive constitutional rights principles only in
connection with other substantive principles.73 This is to say that you need at least
two competing substantive principles and one formal principle, which adds weight
to one of the competing substantive principles. But a problem arises. Alexy himself
seems to violate this law by setting out in opposition only a single formal and a sin-
gle substantive principle a couple of pages earlier.74 Alexys reconstruction that has
him introducing the formal principle into the weight formula raises more ques-
tions. He had demonstrated the weight formula75 earlier in his postscript by using
the Titanic case decided by the German Federal Constitutional Court.76 In this
case, freedom of expression according to Article 5(1) Basic Law and an individuals
general personality right according to Article 2(1) coupled with Article 1(1) Basic
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Law were balanced. These two principles are substantive principles. In the weight
formula, they are represented by Pi and Pj, and Alexy distinguishes two quanti-
ties for attributing weight to these two principles in a given case: (1) the abstract
weight of the principle,77 and (2) the intensity of interference with the principle78
or the importance of satisfying the other principle.79 Taking this formula as given,
one would expect Alexyagainst the backdrop of the Law of Combination, which
he introduces a dozen pages later80to introduce the formal principle as a third
principle in the balancing matrixas Pk or the like. However, instead of expand-
ing the weight formula in this way, he rather adds a third quantity for attributing
weight to the two principles Pi and Pj: R for the reliability of the empirical assump-
tions that are relevant to the balancing.81 What is more, Pi and Pj no longer
represent two substantive principles. In analysing formal principles, Alexy introduces
two principles in opposition: (1) the formal principle of the democratically legiti-
mated decision-taking competence of the legislature82 and (2) one constitutional
rights principle. He continues: [T]he formal principle competes with the substan-
tive constitutional rights principle. The latter prima facie excludes the competence
of the legislature to base its decision on uncertain empirical premises unfavourable
to the constitutional right; the former prima facie requires just this competence.83
It is submitted that Alexys reconstruction of the consideration of formal prin-
ciples in the balancing confuses two issues, both of which are in themselves

73 Postscript to Constitutional Rights 423.


74 Ibid, 41619. On this problem, see Borowski (n 72) 3135.
75 On the weight formula, see also Robert Alexy, The Weight Formula, Bartosz Broek and Stanley L
Paulson (trans), in Jerzy Stelmach, Bartosz Broek and Wojciech Zauski (eds), Frontiers of Economic
Analysis of Law: Studies in the Philosophy of Law, vol 3 (Jagiellonian University Press, 2007) 927.
76 Postscript to Constitutional Rights 40310.
77 Ibid, 406 fn 64.
78 Ibid, 406.
79 Ibid, 407.
80 Ibid, 423.
81 Ibid, 419 fn 97.
82 Ibid, 416, emphasis added.
83 Ibid, 417.
586 Jurisprudence

fundamental and important: (1) the issue of whether the reliability of relevant
empirical premises counts as a quantity in attributing weight to principles, and (2)
the consideration of a formal principle in balancing two competing substantive prin-
ciples in reconstructing discretion or deference. It counts as an important insight
that the reliability of relevant empirical premises may well influence the weight that
is attributed to the principles in balancing. This insight does not, however, give rise
to discretion in itself. It only changes the weight of the two substantive principles con-
cerned. For the reconstruction of discretion in balancing it is crucial to consider two
perspectives: the perspective of the person84 who has taken the original decision, and
the perspective of the person who reviews the original decision. The reviewer grants
discretion if a certain difference between the original balancing judgment85 and his
own decision balancing substantive principles is respected. The greater the differ-
ence that is respected, the greater the discretion granted. This difference in
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perspectives needs to be represented by a formal principle that complements the two


substantive principles in the balancing, quite apart from whether the reliability of
the empirical premises plays a role in attributing weight to these substantive prin-
ciples.86
Even if it has become clear that the precise reconstruction of formal principles
in the balancing needs further attention, the key idea in Alexys model, the con-
sideration of a formal principle in balancing substantive principles, is quite
convincing. Such a model provides the foundation for rebutting the democratic
objection to constitutional review. Admittedly, a model of balancing formal and sub-
stantive principles provides a reconstruction rather than a justification of
constitutional review in liberal democracies. In publications subsequent to his trea-
tise, Alexy has developed the idea of argumentative representation as a key element
in the justification of constitutional review.87
To conclude: The ground-breaking structural analysis of constitutional rights as
liberty rights, equality rights and positive rights developed by Alexy in the mid-1980s
has laid the foundations for a general theory of constitutional rights or fundamen-
tal rights in Europe and for liberal democracies generally.

84 To be precise, the relevant decision may have been taken by an institution or an organ of the state.
For the sake of simplicity, I refer in what follows only to persons.
85 Even if the original decision is not explicitly justified in the form of a balancing judgment, it can be
reconstructed in this form.
86 The fact that the question can be asked of whether the reliability of certain empirical premises plays
a role in assessing the weight of the formal principle added to the balancing underscores the fact that
these two operationsintroducing the reliability of empirical premises as a quantity for attributing
weight to the principles and adding a formal principle to the balancingare not identical.
87 In particular, see Robert Alexy, Balancing, Constitutional Review, and Representation (2005) 3 Inter-
national Journal of Constitutional Law 57281, 57881.
Discourse, Principles, and the Problem of Law and Morality 587

III. THE PROBLEM OF LAW AND MORALITY:


THE ARGUMENT FROM INJUSTICE 88

The first imprint of Alexys third book, The Argument from Injustice, appeared with
Alber in German in 1992; it has been reprinted, to date, three times. It has been
translated into a number of languages;89 the translation into English was undertaken
by Bonnie Litschewski Paulson and Stanley L Paulson and was published by Claren-
don Press in 2002.90
Alexys third book is a concise and clear work on the problem of law and moral-
ity. He himself describes it as representing something akin to the axis of my work.91
As the title suggests, the argument from injustice plays a crucial role in his defence
of a non-positivistic concept of law. Alexy advances, however, two other key arguments
on behalf of non-positivism: the argument from correctness and the argument
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from principles. According to him, these three arguments give rise to necessary con-
nections of different kinds between law and morality.

(i) The FrameworkFive Key Distinctions

After having sketched the basic positionspositivism and natural lawand having
exemplified the practical significance of this distinction,92 Alexy outlines different
kinds of legal positivism.93 He then develops a framework of five key distinctions for
an analysis of the concept of law and his critique of legal positivism: (1) the dis-
tinction between concepts of law that omit validity and those that embrace validity,94
(2) between the legal system as a system of norms and as a system of proce-
dures,95 (3) between the observers and the participants perspective,96 (4) between
classifying and qualifying connections between law and morality,97 and finally (5)
between conceptually necessary and normatively necessary connections.98

(a) The first and the second distinction are more or less self-explanatory. This does
not apply, however, to the other ones. To begin with, Alexy points out that the dis-
tinction between the observers and the participants perspective is related to
Harts distinction between the internal and the external point of view;99 he adds, how-

88 Hereinafter Argument from Injustice. All references are to the 2009 edition.
89 Spanish, Portuguese, Italian, Swedish, Romanian, Slovakian, Korean and Arabic. Translations into
Russian and Chinese are in progress.
90 See n 1.
91 Robert Alexy, Reflections on How My Thinking about Law has Changed over the Years (2011) 4 Tam-
pere Club Series (online).
92 Argument from Injustice 310.
93 Ibid, 1419.
94 Ibid, 2324, emphasis omitted.
95 Ibid, 2425.
96 Ibid, 25.
97 Ibid, 26.
98 Ibid.
99 See HLA Hart, The Concept of Law (Clarendon, 2nd edn 1994) 89 et passim.
588 Jurisprudence

ever, that these two distinctions are not identical.100 The observers perspective is
characterised by the question of how decisions are actually made in a certain legal
system, while participants take part in disputation about what is commanded, for-
bidden, and permitted in this legal system and to what end this legal system confers
power.101 The distinction between the observers and the participants perspective
takes the leading role in Alexys subsequent analysis of the concept of law.

(b) In the debate on necessary connections between law and morality, the expres-
sion connection is commonly understood as referring to a classifying connection: A
relevant moral defect in a norm or system of norms deprives the norm or the system
in question of its legal character or its validity102it does not count as valid law. With
his fourth distinction, Alexy posits another connection in opposition to this classi-
fying connection, the qualifying connection. Such a qualifying connection is reflected
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in the claim that norms or systems of norms that do not meet a certain moral crite-
rion can indeed be legal norms or legal systems, but, for either conceptual or
normative reasons, are legally defective legal norms or legal systems.103 Thus, the
moral defect renders, according to Alexy, the norm or system of norms in question
also legally defectiveit counts as both morally and legally defective. One has to be
aware that such a qualifying connection is much weaker than a classifying connec-
tionif the connection between law and morality is understood in the qualifying
sense, even a norm that does not meet a relevant moral criterion counts as a legal
norm; it does not lose its legal character or its validity.

(c) The most problematic distinction is the fifth distinctionthat between con-
ceptually necessary and normatively necessary connections. To begin with, Alexy
dismisses the idea of an empirically necessary connection between law and moral-
ity in a footnote.104 He regards empirical connections as categorically different
from conceptual or normative connections, since, according to him, empirical con-
nections can only become relevant for the concept of law if they are combined with
conceptual or normative arguments. Alexy is certainly correct in emphasising the cat-
egorical difference between empirically necessary connections and conceptually
necessary connections. One has to add, however, that normatively necessary con-
nections are also categorically different from conceptually necessary connections.
While a conceptually necessary connection can exist completely apart from any
empirical and normative argument, a normatively necessary connection always
refers to a conceptually necessary connection. A normatively necessary connection
between law and morality is nothing other than a normative argument on behalf of
a certain conceptually necessary connection between law and morality, on behalf of

100 Argument from Injustice 25.


101 Ibid.
102 This depends on whether one uses a concept of law that omits validity or a concept of law that
embraces validity; see Argument from Injustice 2324. According to the latter kind of concepts of law,
legal norms are by definition validif they are not valid, they cannot be valid norms.
103 Argument from Injustice 26.
104 Ibid, 2021 fn 39.
Discourse, Principles, and the Problem of Law and Morality 589

the non-positivistic connection thesis.105 Alexy concedes this to some extent when
he writes that a normative necessity is only in a broader sense a necessity.106 To be
sure, if (1) conceptually necessary connections between law and morality and (2)
normatively necessary connections are, in the cold light of day, categorically dif-
ferent, this difference ought to be reflected in the terminology. This suggests that
only conceptually necessary connections may be termed necessary connections, and
that Alexys normatively necessary connections be understood as referring to nor-
mative arguments on behalf of a non-positivistic concept of law.107

(ii) The Concept of Law from the Observers Perspective

Alexy begins his enquiry into the concept of law from the observers perspective.108
This section has two subsections, entitled Individual Norms and Legal Systems.
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For individual norms, viewed from the observers perspective, he regards positivism
as correct: [F]rom the standpoint of an observer who looks at individual norms and
enquires into a classifying connection, the positivistic separation thesis is correct.
This is different, according to him, for legal systems as a whole.109 The claim to cor-
rectness, which he explains in greater detail in a later section, is a necessary
element of the concept of law.110 The necessary connection between law and
morality Alexy sees established by the claim to correctness has classifying signifi-
cance.111 Apart from the fundamental questions of whether law lays claim to
correctness and whether this establishes a connection between law and morality, it
deserves to be emphasised that Alexy does not explore the observers perspective
comprehensively. He leaves open the question of whether individual norms lay
claim to correctness from the observers perspective, and whether this also establishes
a connection between law and morality for individual norms, be they classifying or
qualifying in nature. In fact, in the conclusion to the section on the observers per-
spective, he explicitly denies any relevant connection: According to him, from the
observers perspective the [positivistic] separation thesis does in fact count unre-
stricted where individual norms are concerned.112 Alexy seems to conclude from the
rebuttal of the argument from injustice from the observers perspective for individual
norms that positivism is correcteven without considering the argument from cor-
rectness at all, which he regards as crucial for establishing non-positivism for legal
systems as a whole. What is more, he later explains that, from the participants per-
spective, individual legal norms and legal systems as a whole necessarily lay claim

105 See also ibid, 21: A separation or a connection justified in this way [by a normative argument] may
be called normatively necessary.
106 Ibid, 21 fn 40.
107 Also critical of the idea of a normative necessity between law and morality: Eugenio Bulygin,
Alexys Thesis of the Necessary Connection between Law and Morality (2000) 13 Ratio Juris 1337,
136.
108 Argument from Injustice 2831.
109 Ibid, 31.
110 Ibid, 34.
111 Ibid.
112 Ibid, 35.
590 Jurisprudence

to correctness.113 If so, why should only legal systems as a whole, and not individ-
ual norms, lay claim to correctness from the observers perspective?

(iii) The Concept of Law from the Participants Perspective

The longest part of Alexys book is devoted, however, to a defence of natural law or
non-positivism from the participants perspective. This defence is based on three
arguments: (1)the argument from correctness establishes, according to Alexy, basically
a qualifying connection between law and morality,114 (2) the argument from injustice
establishes a classifying connection,115 and (3) the argument from principles establishes
again a qualifying connection.116 As a consequence, a complex non-positivistic con-
cept of law emerges.
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(a) Alexy points out the laws claim to correctness by referring to what he terms a
performative contradiction. Some speech acts make out a certain claim by virtue of
their formal description. For example, a judicial decision makes the claim that the
law is being correctly applied.117 If the content of the speech act contradicts this
claim, a performative contradiction arises. Alexy distinguishes the conceptual defect
that a performative contradiction represents from merely technical, moral or con-
ventional defects.118 According to him, the argument from correctness establishes
basically119 a qualifying connection between law and moralitythis is to say that in
case the claim is not satisfied, the relevant norm or legal system does not forfeit its
legal character. Alexys argument from correctness has sparked a lively debate,120 and
he has defended the argument in subsequent articles.121 According to Alexy, the
argument from correctness is the basis of the other two arguments122the basis of
the argument from injustice and the argument from principles.

113 Ibid, 3536, emphasis added.


114 Ibid, 39, 127.
115 Ibid, 4062, 91.
116 Ibid, 79.
117 Ibid, 39.
118 Ibid, 3637.
119 The claim to correctness also establishes to a certain extent, according to Alexy, a classifying con-
nection, insofar as legal systems that in no way make the claim do not count as legal systems (39;
see also 34 from the observers perspective).
120 Critical of Alexys argument from correctness: eg Joseph Raz, The Argument from Justice, or How
Not to Reply to Legal Positivism in George Pavlakos (ed), Law, Rights, and Discourse (Hart Publish-
ing, 2007) 1735, 2628; Neil D MacCormick, Why Law Makes No Claims in Pavlakos, ibid, 5967;
John Gardner, How Law Claims, What Law Claims in Matthias Klatt (ed), Institutionalized Reason
(Oxford University Press, forthcoming 2012).
121 See, in particular, Robert Alexy, Law and Correctness (1998) 51 Current Legal Problems 20521; Robert
Alexy, An Answer to Joseph Raz in Pavlakos (n 120) 3755, 4950; Robert Alexy, Thirteen Replies
in Pavlakos (n 120) 33366, 3335, 349, 3526; Robert Alexy, On the Concept and the Nature of Law
(2008) 21 Ratio Juris 28199, 2946; Robert Alexy, The Dual Nature of Law (2010) 23 Ratio Juris 167
82, 16872.
122 Argument from Injustice 35; see also 40, 77.
Discourse, Principles, and the Problem of Law and Morality 591

(b) Alexy then turns to the argument from injustice. This argument goes back to the
formula of Germanys most renowned legal philosopher in the last century, Gustav
Radbruch. The famous Radbruch formula was coined in 1946 in reaction to Nazi Ger-
manys atrocities. It reads: The positive law, secured by legislation and power, takes
precedence even when its content is unjust and fails to benefit the people, unless the
conflict between statute and justice reaches such an intolerable degree that the
statute, as flawed law, must yield to justice.123 Alexy characterises the argument
from injustice as the thesis of forfeiting legal character by crossing a certain
threshold of injustice.124 He undertakes a detailed inquiry into the arguments on
behalf of and against the argument from injustice for individual norms.125 A num-
ber of objections to the Radbruch formula are rebutted, among them objections
raised by HLA Hart in Positivism and the Separation of Law and Morals126 and in
The Concept of Law. In his concluding evaluation of all pros and cons Alexy empha-
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sises the risk effect brought about by the argument from injustice,127 which he had
developed earlier in the sectionofficials of a rogue state face the risk of being pros-
ecuted after the collapse of the rogue state if their acts have to be regarded as
extremely unjust and, therefore, as crossing the threshold of extreme injustice. Thus,
they are deprived of the defence of referring to the positive law of the rogue state,
for this positive law, according to the Radbruch formula, forfeits its legal character.128
If this risk effect is enforced by international criminal law, Harts argument that a
non-positivistic concept of law would hardly have any effect on preventing statutory
lawlessness129 would be rebutted.
Alexy underestimates, however, the loss of legal certainty that the argument from
injustice brings about. One may well agree that the more extreme the injustice, the
more certain the knowledge of it.130 It is also true that the argument from injustice
reflects the weak connection thesis, according to which only extreme injustice
rather than every injustice deprives positive law of its legal character.131 It is not, how-
ever, the certainty of knowledge of injustice that counts. Rather, the decisive
threshold is extremely unjust. One can agree on whether, for example, the shoot-

123 Gustav Radbruch, Statutory Lawlessness and Supra-Statutory Law, Bonnie Litschewski Paulson and
Stanley L Paulson (trans) (2006) 26 Oxford Journal of Legal Studies 111, 7. To be sure, the quotation
expresses only the first part of Radbruchs formula, which has been very much in the limelight in the
debate on positivism and natural law. The second part, which to date has received far less attention,
refers to cases in which there is not even the attempt at justice (ibid, 7). On these two parts of the
formula see Stanley L Paulson, On the Background and Significance of Gustav Radbruchs Post-War
Papers (2006) 25 Oxford Journal of Legal Studies 1740, 2627.
124 Argument from Injustice 28.
125 Ibid, 4062. See also Robert Alexy, A Defence of Radbruchs Formula in David Dyzenhaus (ed),
Recrafting the Rule of Law: The Limits of Legal Order (Hart Publishing, 1999) 1539. Reprinted in Michael
DA Freeman (ed), Lloyds Introduction to Jurisprudence (Sweet & Maxwell, 8th edn 2008) 42643; Alexy,
An Answer to Joseph Raz (n 121) 5054.
126 HLA Hart, Positivism and the Separation of Law and Morals (1957/58) 71 Harvard Law Review 593
629.
127 Argument from Injustice 62.
128 Ibid, 4551.
129 Hart (n 126) 61718; Hart (n 99) 210.
130 Argument from Injustice 52.
131 Ibid, 5152. On this distinction, see also 47.
592 Jurisprudence

ings at the Berlin wall by border patrols of the former German Democratic Repub-
lic were unjust. It is debatable, however, whether they also represented extreme
injustice in the sense of the Radbruch formula.132 Thus, the argument from injus-
tice may take a significantly greater toll on legal certainty than Alexy assumes when
he speaks of at most a minimal loss.133
Even if one disagrees with Alexys evaluation of this or that argument on behalf
of or against the argument from injustice, he explicates the relevant arguments in
a concise and focused fashion. Finally, the section on the argument from injustice
concludes with a subsection in which he considers whether the application of this
argument to legal systems as a whole has consequences that go beyond the appli-
cation to individual norms of this system. The answer is negative.134

(c) Alexys third main argument on behalf of a non-positivistic concept of law is the
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argument from principles. This argument goes back to Ronald Dworkins criticism
of HLA Harts positivistic theory. According to Hart, judges are not legally bound
where their decision falls within the open texture of positive law.135 Dworkin coun-
tered that judges are indeed bound by legal standards even in such instances; he
claimed that they are bound by principles that are structurally different from
rules.136 Based on the distinction between rules and principles, Alexy constructs his
argument from principles in three steps. To begin with, he claims with the incorpo-
ration thesis that every legal system that is at least minimally developed necessarily
comprises principles.137 Principles are applied by balancing, and balancing becomes
necessary, he continues, in hard cases. Thus, balancing in hard cases indicates the
presence of principles in the legal system.138 The question arises, however, of
whether this argument is empirical or conceptual in nature. Alexy explicitly grants
that he does not pursue the interesting empirical question of whether there ever
have been legal systems in which no case was felt to be doubtful, so that in no case
did the question of striking a balance arise.139 His next sentence is telling: In any
event, such a system would not even be a minimally developed legal system.140 This
is to say that in an at least minimally developed legal system hard cases necessarily
arise. If no hard cases arise in a legal system, it is by definition not an at least minimally

132 Opinion is divided on this issue. Alexy is inclined to regard the shootings at the Berlin wall as
extremely unjust in the sense of the Radbruch formula; see Robert Alexy, Mauerschtzen (Vandenhoeck
& Rupprecht, 1993) 2230. Others see a relevant difference between the National-Socialists laws that
represent statutory lawlessness and the laws of real socialism. For them, the latter, unlike the for-
mer, do not cross the relevant threshold of the Radbruch formula. See Knut Seidel, Rechtsphilosophische
Aspekte der Mauerschtzen-Prozesse (Duncker & Humblot, 1999) 2057 with further references.
133 Argument from Injustice 52.
134 Ibid, 6268.
135 See Hart (n 99) 12736, 1457, 150. See also HLA Hart, postscript to The Concept of Law (n 99) 238
76, 2723.
136 Dworkin, Taking Rights Seriously (n 33) 2930, 3439.
137 Argument from Injustice 71.
138 Ibid, 7374.
139 Ibid, 74.
140 Ibid.
Discourse, Principles, and the Problem of Law and Morality 593

developed legal system. This makes it clear that Alexys incorporation thesis in con-
ceptual in nature.
The second step is the morality thesis, according to which the necessary presence
of principles in the legal system leads to a necessary connection between law and
some morality or another.141 Legally relevant principles are hardly morally indif-
ferent. In some sense, this thesis counts as an application of Alexys special case thesis
in legal argumentation. Legal discourse has special argument forms for applying pos-
itive law. In the open texture of positive law, interpreted by reference to special
argument forms, all argument forms of general practical discourse can be applied.
The argument from principles is completed in the third step by the correctness the-
sis, according to which the claim to legal correctness necessarily attached to the
decision includes a claim to moral correctness.142 Alexy explicitly grants that this the-
sis, the keystone of the argument from principles, is the result of applying the
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argument from correctness within the framework of the argument from princi-
ples.143 This raises the question of whether the argument from principles is found
at the same categorical level as the argument from correctness. Does the argument
from principles really add anything to the argument from correctness, or does the
former only count as an explication, concretisation or application of the latter?
Alexy grants that the connection between law and morality allegedly established
by the argument from principles is rather ethereal: it is simply the claim to justifi-
ability rather than its satisfaction, and despite the emphasis on correct morality,
there is no talk of what correct morality is.144 The argument from principles, Alexy
continues, establishes a qualifying connection or soft connection between law and
morality rather than a classifying or hard connection. A violation of correct moral-
ity by positive law renders the norm or decision in question legally defective rather
than leading to the forfeiture of legal character.145
It ought to be emphasised here that the force of the argument from principles
is limited to cases in which legal methodology requires balancing. Balancing,
required by legal methodology, is the gateway through which the claim to moral cor-
rectness comes into the law. If, however, the case in question falls within the core of
certainty of a legal rule, itself not dependent on legal balancing, cases can be
decided by subsumption by appeal to the rule alone. Legal systems may well contain
legal rules that have been created in the exercise of legal authority alone. Alexy
emphasises in his second book, the treatise on constitutional rights, that not every
application of constitutional rights counts as a matter of balancing. Constitutional
rights, which basically have the structure of principles, also have a level of rules.146
In so far as cases are decided by means of subsumption rather than balancing, the
argument from principles cannot establish any connection between law and moral-
ity, of whatever kind. Thus, the argument from principles cannot establish a

141 Ibid, 75.


142 Ibid, 77.
143 Ibid.
144 Ibid, 78.
145 Ibid, 79.
146 Constitutional Rights 8284.
594 Jurisprudence

connection between morality and law as whole. It can only establish a connection
between morality on one hand and legal principles and their application on the
other.

(iv) The Validity of Law

The third main section of Alexys book is devoted to the validity of law. He distin-
guishes the sociological concept of validity, the ethical concept of validity, and the
juridical concept of validity,147 as well as collisions between these kinds of validity.148
The juridical concept of validity refers to the problem of the basic norm. Alexy pres-
ents a concise analysis of a common reading149 of Hans Kelsens basic norm,150 which
he depicts as analytical by contrast with Kants normative basic norm151 and
Harts empirical basic norm.152 Alexys book on the problem of law and morality
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concludes with a definition of the law.153

(v) The Analytical Force of Alexys Treatise on the Problem of Law and Morality

Whether or not one agrees with Alexys evaluation of the arguments in the debate
on the concept of law, one is struck by the analytical force of his book. Theses and
arguments are presented in a clear and concise fashion. It is a common impression
that the participants in the debate on the concept of law are often talking past each
other. Alexys framework of distinctions for the analysis of the concept of law illus-
trates and reconstructs the complexity of positions in this debate in a very accessible
form.

IV. RECENT STRANDS IN ROBERT ALEXYS WORK:


THE NATURE OF LEGAL PHILOSOPHY AND THE DUAL NATURE OF LAW

Finally, two recent strands in Alexys writings might be highlighted. They are con-
nected with the strands Alexy developed in his three main books, yet they are in some
sense distinct and new.

147 Argument from Injustice 8588.


148 Ibid, 8994.
149 Kelsens theory of the legal basic norm is notorious for its ambiguity. See Stanley L Paulson, Die unter-
schiedlichen Formulierungen der Grundnorm in Aulis Aarnio et al (eds), Rechtsnorm und
RechtswirklichkeitFestschrift fr Werner Krawietz zum 60. Geburtstag (Duncker & Humblot, 1993) 5374;
Stanley L Paulson, A Justified Normativity Thesis in Hans Kelsens Pure Theory of Law? Rejoinders
to Robert Alexy and Joseph Raz, forthcoming in Klatt (n 120).
150 Argument from Injustice 96116.
151 Ibid, 11621.
152 Ibid, 1213. Strictly speaking, there is no basic norm in Harts theory, for his rule of recognition, the
criterion for identifying phenomena as law, is a fact. See Hart (n99) 110: [T]he rule of recognition
exists only as a complex, but normally concordant, practice of the courts, officials, and private per-
sons in identifying the law by reference to certain criteria. Its existence is a matter of fact.
153 Ibid, 12730.
Discourse, Principles, and the Problem of Law and Morality 595

First, Alexy has recently devoted some attention to the nature of legal philoso-
phy. While in most of his earlier writings in legal philosophy the concept of law was
at the centre, the focus has shifted now to the nature of legal philosophy and essen-
tial properties or features of law.154 Second, Alexy has emphasised the dual nature
of law in a number of articles. According to his dual nature thesis, law has a real or
factual dimension and an ideal or critical dimension.155 Alexy ties the ideal dimen-
sion of law strictly to moral correctness: In the definition of law, the factual
dimension is represented by the elements of authoritative issuance and social effi-
cacy, whereas the ideal dimension finds its expression in the element of moral
correctness.156 In this sense, the ideal dimension of law and, therefore,157 the dual
nature of law, becomes a corollary of non-positivism.
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V. CONCLUSION

A comprehensive and detailed appreciation of Alexys entire vre certainly goes well
beyond the scope of this article. All that has been attempted here is a critical out-
line of his three main treatises, including a handful of remarks on connections
between and among themes in these books and themes elsewhere in his writings.
Despite the difficulty of capturing his work in its whole complexity in a simple catch-
phrase, the best effort might be Alexys own expression, the Institutionalisation of
Reason.158

154 Robert Alexy, The Nature of Arguments about the Nature of Law in Lukas H Meyer, Stanley L Paul-
son and Thomas W Pogge (eds), Rights, Culture, and the Law: Themes from the Legal and Political
Philosophy of Joseph Raz (Oxford University Press, 2003) 316; Alexy, On the Concept and the Nature
of Law (n 121). See also Robert Alexy, On Two Juxtapositions: Concept and Nature, Law and Phi-
losophy. Some Comments on Joseph Razs Can there be a Theory of Law? (2007) 20 Ratio Juris
1629.
155 Alexy, On the Concept and the Nature of Law (n 121) 281; Alexy, The Dual Nature of Law (n 121)
167. On the dual nature thesis, see furthermore Robert Alexy, Hauptelemente einer Theorie der Dop-
pelnatur des Rechts (2009) 95 Archives for Philosophy of Law and Social Philosophy 15166.
156 Alexy, The Dual Nature of Law (n 121) 167.
157 It is virtually impossible to deny that law has a real or factual dimension. Thus, if law has an ideal
dimension, it has necessarily both a real and an ideal dimension.
158 Robert Alexy, My Philosophy of Law: The Institutionalisation of Reason in Luc J Wintgens (ed), The
Law in Philosophical Perspectives: My Philosophy of Law (Kluwer, 1999) 2345. In this article one finds
an introduction by Alexy himself to core ideas of his legal philosophy. This overview will be com-
plemented in due course by another article, Reflections on How My Thinking about Law has
Changed over the Years (see n 91). The title of the edited collection on Alexys work that will be pub-
lished shortly by Oxford University Press is also reminiscent of this characterisation: Institutionalized
Reason.