Ross on the Dualism of Reality and Validity

Abstract

In this article, I want to consider Scandinavian realist Alf Ross’s intriguing 1946 critique of the dualism of reality and validity and the implications of this critique for so-called dual-nature theories of law, such as the dual-nature theory defended by Robert Alexy. The meaning of this dualism, which Ross considers to be at the foundation of traditional legal thinking, is that both the very concept of law and certain other fundamental legal concepts – such as the concept of the sources of law and the concept of subjective law (which encompasses the concept of a legal right and the concept of a legal duty) – consist of two parts, one factual and empirical and one normative and metaphysical. Ross objects, however, that this dualism gives rise to certain very troublesome antinomies both in the concept of law and in the other fundamental legal concepts, and that dualists cannot avoid these antinomies by eliminating the concept of validity from their theories, since doing so would leave the resulting (monist) theory unable to even find its study object, but must instead substitute a non-cognitivist account of claims of legal validity for the non-naturalist (intuitionist) account characteristic of such dualism. I find Ross’s critique intriguing and well worthy of our attention. I argue, however, (i) that it is doubtful whether there is in the concept of law a dualism of reality and validity of the type that Ross has in mind, (ii) that while the first antinomy in the concept of law and the first antinomy in the concept of the sources of law do arise, they have nothing to do with such a dualism of reality and validity, (iii) that the second antinomy in the concept of law and the second and third antinomies in the concept of the sources of law do not arise at all, (iv) that while the first and the second antinomies in the concept of subjective law do arise, they have nothing to do with such a dualism, and (v) that the third antinomy in the concept of subjective law does arise but can be handled. I also argue (vi) that Ross’s proposed solution to the problem of the antinomies would likely be successful if there really were a problem that needed a solution, and (vii) that in any case Ross’s critique of the dualism of reality and validity does not apply to Robert Alexy’s dual-nature theory of law. Finally, I argue (viii) that Kelsen in his 1960 critique of Ross’s analysis – where he objects inter alia that Ross mistakenly takes claims of legal validity to express a belief that the valid entity has a confused property – overshoots the mark, because he confuses Ross’s non-cognitivist account of claims of legal validity with an error-theoretical account of such claims.