{"title":"Legal Argumentation as Rational Discourse","authors":"R. Alexy","doi":"10.1093/oso/9780198796831.003.0020","DOIUrl":"https://doi.org/10.1093/oso/9780198796831.003.0020","url":null,"abstract":"The discourse model of legal argumentation is presented in this chapter as a reaction to the weaknesses or deficiencies of alternative models. The most important alternative models are the model of deduction, the model of decision, the hermeneutic model, and the model of coherence. The discourse model connects the institutional or real dimension of legal argumentation with its non-institutional or ideal dimension. The result is the special case thesis. It combines institutional arguments, based on the authority of positive law, with substantive arguments, based on practical reason. This connection of the real dimension of legal argumentation with its ideal dimension is a central element of the institutionalization of practical reason.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128447414","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Weight Formula","authors":"R. Alexy","doi":"10.1093/oso/9780198796831.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198796831.003.0012","url":null,"abstract":"In this chapter the Law of Balancing, one of the two laws in A Theory of Constitutional Law (2002), is transformed into a mathematical formula, the Weight Formula. This formula allows a clear identification of the three factors that pertain to balancing: intensity of interference, abstract weight, and epistemic reliability of the premises standing behind these two classifications, and this on both sides of the principles collision. This is not possible without scaling. A geometric and discrete scale is proposed. Discrete scales are necessary. Geometric scales have advantages with respect to arithmetic scales. Cases are considered, and, in the last part of the text, open questions are presented.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129908676","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"An Answer to Joseph Raz","authors":"R. Alexy","doi":"10.1093/oso/9780198796831.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780198796831.003.0006","url":null,"abstract":"This chapter contains a reply to Joseph Raz’s critique of Alexy’s defence of non-positivism. The starting point is that the distinction between positivism and non-positivism is, contrary to Raz, still of fundamental significance. It will never become insignificant. Raz agrees with the author that law raises something like a claim to correctness, but he argues that this claim is not necessarily connected with morality. The response presented here is that it is. This implies a necessary connection between law and morality, which thereby yields non-positivism. The practical significance of this is illustrated by the Radbruch Formula and the role principles play in legal argumentation.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"147 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126917504","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Law and Correctness","authors":"R. Alexy","doi":"10.1093/CLP/51.1.205","DOIUrl":"https://doi.org/10.1093/CLP/51.1.205","url":null,"abstract":"The main thesis of this chapter is that law necessarily raises a claim to correctness and that this necessary connection between law and correctness implies a conceptually necessary connection between law and morality that goes beyond the scope of a positivistic concept of law. Many objections have been raised to the claim to correctness thesis. Of special significance is the argument that it is, indeed, possible to raise the claim to correctness, but that it is not necessary. The reply presented here is that the claim to correctness is necessary relative to a practice that is essentially defined by the distinction of true or correct and false or wrong. This practice, however, is of a special kind. Indeed, one can try to dismiss the categories of truth, correctness, and objectivity. But if we should succeed in doing so, our speaking and acting would be essentially different from what they are now.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116533464","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Human Dignity and Proportionality","authors":"R. Alexy","doi":"10.1093/oso/9780198796831.003.0015","DOIUrl":"https://doi.org/10.1093/oso/9780198796831.003.0015","url":null,"abstract":"The relation between proportionality analysis and human dignity is one of the most contested questions in the debate over the normative structure of human dignity. Two conceptions stand in opposition: an absolute and a relative conception. According to the absolute conception, the guarantee of human dignity counts as a norm that takes precedence over all other norms in all cases. Taking precedence over all other norms in all cases implies that proportionality analysis, and with it, balancing is precluded. According to the relative conception, proportionality analysis is necessary in order to determine whether human dignity is violated or not. Alexy’s thesis in this dispute is, first, that only the relative conception satisfies the requirements of rationality, and second, that it by no means leads to a devaluation of human dignity.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123881679","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A Discourse-Theoretical Conception of Practical Reason","authors":"R. Alexy","doi":"10.1093/oso/9780198796831.003.0018","DOIUrl":"https://doi.org/10.1093/oso/9780198796831.003.0018","url":null,"abstract":"Contemporary discussions about practical reason or practical rationality invoke four competing views, which, by reference to their historical models, can be named as follows: Aristotelian, Hobbesian, Kantian, and Nietzschean. The subject matter of this chapter is a defence of the Kantian conception of practical rationality in the interpretation of discourse theory. At the core lies the justification and the application of the rules of discourse. An argument consisting of three parts is presented to justify the rules of discourse. The three parts are as follows: a transcendental-pragmatic argument, an argument that takes account of the maximization of individual utility, and an empirical premise addressing an interest in correctness. Within the framework of the problem of application, the chapter outlines a justification of human rights and of the basic institutions of the democratic constitutional state on the basis of discourse theory.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"225 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114157489","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Jürgen Habermas’s Theory of the Indeterminacy of Law and the Rationality of Adjudication","authors":"R. Alexy","doi":"10.1093/oso/9780198796831.003.0021","DOIUrl":"https://doi.org/10.1093/oso/9780198796831.003.0021","url":null,"abstract":"Every theory of legal argumentation has to determine the relation between legal certainty and correctness, which essentially includes justice. This, in turn, requires that the specific character of legal argumentation be expounded. The special case thesis, developed in A Theory of Legal Argumentation (1989), is an attempt to achieve both. The thesis says that legal discourse is a special case of general practical discourse. Habermas criticizes the special case thesis in his book Between Facts and Norms (1996). Counterarguments against four of his objections are presented in this chapter. They concern the relation between legal and moral discourse, the rules and forms of legal discourse, the problem of unjust law, and the question of whether general practical arguments acquire a specific legal nature in legal discourse.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"112 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133660445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Ideal ‘Ought’ and Optimization","authors":"R. Alexy","doi":"10.1093/oso/9780198796831.003.0014","DOIUrl":"https://doi.org/10.1093/oso/9780198796831.003.0014","url":null,"abstract":"The basis of principles theory is the norm-theoretic distinction between rules and principles. In A Theory of Constitutional Law (2002), I have defined rules as definitive commands and principles as optimization requirements. Against the definition of principles as optimization requirements the objection has been raised that optimization requirements are rules too because the optimization is definitively commanded. This chapter offers a reconstruction of the distinction between rules and principles that connects the concept of the ideal ‘ought’ with the concept of optimization requirement. In the language of mathematical logic, this is expressed by means of a ‘fundamental equivalence’. This equivalence is the basis of the author’s reply to all of the objections against his distinction between rules and principles.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128122269","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Ideal Dimension of Law","authors":"R. Alexy","doi":"10.1017/9781316341544.012","DOIUrl":"https://doi.org/10.1017/9781316341544.012","url":null,"abstract":"Alexy’s thesis that law has an ideal dimension is essentially based on the argument that law necessarily raises a claim to correctness that includes a claim to moral correctness. John Finnis has contested the necessity of this connection between law and a claim with moral content. One implication of the claim to correctness is the Radbruch Formula, which says that extreme injustice is no law. Finnis also criticizes this formula. In this chapter arguments against Finnis’s two critical points are presented. This is further elaborated into a system of the institutionalization of reason that comprises not only the Radbruch Formula but also the special case thesis, human rights, democracy, and principles theory.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128705075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Absolute and the Relative Dimension of Constitutional Rights","authors":"R. Alexy","doi":"10.1093/OJLS/GQW013","DOIUrl":"https://doi.org/10.1093/OJLS/GQW013","url":null,"abstract":"The principle of proportionality is necessary if it can claim validity in all legal systems. What can claim validity in all legal systems has absolute validity. On the other hand, what can only claim to have validity in some legal systems has merely relative validity. This distinction is applicable not only to the principle of proportionality as a norm about the application of constitutional rights but also to the constitutional rights themselves, and the institutionalization of the protection of constitutional rights by means of judicial review. This leads to three questions, which are connected systematically: (1) Do constitutional rights have an absolute character? (2) Does the principle of proportionality have an absolute character? (3) Does constitutional review have an absolute character? In this chapter the first two questions are discussed.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132580909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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