Law as Fact and as Reason for Action: A Response to Robert Alexy on Law's "Ideal Dimension"

Abstract

Robert Alexy's 2013 Natural Law Lecture, published in vol. 58 of this journal, presents law as having two dimensions, ideal and real, and thus a dual nature, to be elucidated by a conceptual analysis distinguishing between the observer's and the participant's perspective. It argues on this basis for a non-positivist theory of law that is in that it classifies some unjust laws as laws, but not all (and is thus not super-inclusive); it rejects the exclusive that would treat every injustice in a law's making or content as excluding it from the class of valid laws. Gustav Radbruch's famous post-War formula-extreme injustice invalidates lawadopted in the jurisprudence of Germany's higher courts, is thus to be defended as expressing the inclusive non-positivism that articulates the best concept of law that can be constructed and defended as expedient. Alexy's 2013 article classifies the theory in Natural Law and Natural Rights as super-inclusive, but sees hopeful signs of inclusive non-positivism in some recent writings of its author. The present article argues that Natural Law and Natural Rights defends, in a sense, all three non-positivist positions, each in its proper place as a truth about unjust law: it is (from an observer's perspective) a fact; it is (from a participant's perspective) deprived by any significant injustice of law's generic and presumptive status (legal-moral validity) as a reason for action; and it is (from the perspective of particular participants in their circumstances) sometimes, despite its injustice and legal-moral invalidity, a source (by virtue of both the foregoing truths taken with other moral responsibilities and needs) of collateral obligations the extent of which is likely, often, to track, approximately, the results of applying the Radbruch formula. The article argues against Alexy's theoretical procedures both of conceptual analysis and of concept construction, regrets the non-positivist/positivist labeling, raises doubts about speaking of duality of dimensions and nature, and notes the significance of the 2013 article's further thesis that any injustice in a law impairs (qualifies) its legal status.