Law's ideal dimension / Robert Alexy.

Format:

Book

Author/Creator:

Alexy, Robert, author.

Language:

English

Subjects (All):

Law--Philosophy.

Law.

Human rights--Philosophy.

Human rights.

Constitutional law--Philosophy.

Constitutional law.

Physical Description:

1 online resource (319 pages)

Edition:

First edition.

Place of Publication:

Oxford, United Kingdom : Oxford University Press, 2021.

Summary:

This collection provides a comprehensive account of Robert Alexy's legal theory. It is divided into three parts: the nature of law; constitutional rights, human rights, and proportionality; and the relation between argumentation, correctness, and law.

Contents:

Intro

Title Page

Copyright Page

Contents

Introduction

Part I The Nature of Law

1. The Nature of Legal Philosophy

I. The Nature of Philosophy

II. Pre-Understanding and Arguments

III. Three Problems

IV. Four Theses

V. Entities and Concepts

VI. Necessary Properties

VII. Law and Morality

2. On the Concept and the Nature of Law

I. The Practical and Theoretical Significance of the Debate

A. Statutory Injustice and the Radbruch Formula

B. Law's Open Texture and the Self-Understanding of Jurists

C. The Concept of Law as a Concept of a Non-Natural Kind

II. Positivism and Non-Positivism

A. Separation Thesis and Connection Thesis

B. Exclusive and Inclusive Positivism

C. Exclusive, Inclusive, and Super-Inclusive Non-Positivism

III. Concept and Nature

A. Nature

B. Concept

IV. The Dual Nature of Law

A. Coercion

B. Correctness

V. What the Law Is and What It Ought to Be

3. The Dual Nature of Law

I. The Ideal

A. The Claim to Correctness

B. Discourse Theory

II. The Real

III. The Reconciliation of the Ideal and the Real

A. Outermost Border

B. Democratic Constitutionalism

4. Law, Morality, and the Existence of Human Rights

I. Positivism, Non-Positivism, and the Existence Problem

A. Three Elements and Two Dimensions

B. Two Forms of Positivism

C. Three Forms of Non-Positivism

D. Inclusive Non-Positivism and the Existence Problem

II. The Existence of Human Rights

A. Human Rights as Moral Elements

B. The Concept of Human Rights

C. The Justifiability of Human Rights

5. An Answer to Joseph Raz

I. Separation Thesis

A. Kelsen's Statement

B. The Idea of a Definition of Law

C. Necessary Connections

II. Participants and Observers

III. The Argument from Correctness

IV. The Argument from Injustice.

V. The Argument from Principles

6. The Ideal Dimension of Law

I. The Claim to Correctness

II. Conceptual Analysis and Conceptual Necessities

A. The Argument from Fruitlessness

B. The Argument from Deficiency

III. The Necessity of the Real Dimension of Law

IV. A Conceptual Framework

A. First-Order and Second-Order Correctness

B. Observer and Participant

C. Perspectives and Dimensions

D. Classifying and Qualifying Connections

V. The Relation between the Real and the Ideal Dimension

A. The Radbruch Formula

B. The Special Case Thesis

C. Human Rights

D. Democracy

E. Principles Theory

7. Gustav Radbruch's Concept of Law

I. Gustav Radbruch's System

A. The Law Triad

B. The Idea Triad

C. The Triad of Purpose

II. The Radbruch Formula

Part II Constitutional Rights, Human Rights, and Proportionality

8. The Construction of Constitutional Rights

I. The Rule Construction

A. Rules and Principles

B. The Postulate to Avoid Balancing

C. Problems of the Rule Construction

II. Principles Construction and Proportionality Analysis

III. Objections to the Principles Construction

IV. The Rationality of Balancing

A. The Central Role of the Rationality Problem

B. The Irrationality Objection

C. Pareto-Optimality

D. The Law of Balancing

E. The Weight Formula

9. Balancing, Constitutional Review, and Representation

I. Balancing

A. Two Objections

B. The Structure of Balancing

II. Constitutional Review

III. Representation

A. Argumentative Representation

B. Conditions of True Argumentative Representation

10. The Existence of Human Rights

I. The Theoretical and Practical Significance of the Existence Question

II. The Concept of Human Rights

III. The Justification of Human Rights

A. The Principles Structure of Human Rights.

B. Scepticism and Non-Scepticism

C. Justification and Thesis

D. Eight Justifications

11. The Weight Formula

I. The Norm-Theoretic Basis: Rules and Principles

II. The Principle of Proportionality in the Narrower Sense

III. The Triadic Scale

IV. The Formula

V. The Extended Formula

12. Formal Principles: Some Replies to Critics

I. The Problem

II. Some Basic Elements of Principles Theory

B. Proportionality

C. Weight Formula

III. The Concept of Formal Principle

IV. Principles and Balancing in General

V. The Wrong Way

VI. Two Kinds of Discretion

VII. Second-Order Epistemic Optimization

VIII. Formal Principles and Discretion

13. Ideal 'Ought' and Optimization

I. The Index Model of the Ideal 'Ought'

II. The Law of Competing Principles

III. The Weight Formula

IV. Law of Competing Principles and Law of Balancing

V. A Fundamental Equivalence

VI. Poscher's Argument from Identity

VII. Sieckmann's Reiterated Validity Obligations

14. Human Dignity and Proportionality

I. Absolute and Relative Conceptions of Human Dignity

II. Practical Significance

III. Some Basic Elements of Principles Theory

IV. The Concept of Human Dignity

A. Descriptive and Normative Elements

B. The 'Double-Triadic' Concept of Person

C. Human Dignity as a Bridge Concept

V. Human Dignity as Principle and as Rule

A. Human Dignity as Principle

B. Human Dignity as a Rule

VI. Devaluation of Human Dignity?

A. Clear Cases

B. Object Formula

C. Abstract Weight and Epistemic Reliability

D. Rationality

15. Proportionality and Rationality

I. Empirical and Analytical Approaches

II. Proportionality and Principles Theory

B. Proportionality.

III. Balancing and Argumentation

A. The Formal and the Substantive Dimension of Rationality

B. Numbers, Classification Propositions, and their Justification

C. Disagreement, Discourse, and Rationality

IV. Balancing, Universalizability, and Legal Certainty

A. The ad hoc Problem

B. The Law of Competing Principles

C. Rules and Conditions

16. The Absolute and the Relative Dimension of Constitutional Rights

I. The Absolute and the Relative

II. Constitutional Rights

A. Constitutional and Human Rights

B. The Degree of the Absolute Dimension of Constitutional Rights

III. Proportionality

A. The Absoluteness of the Principle of Proportionality

B. The Relativity and Absoluteness of the Application of the Principle of Proportionality

Part III. Argumentation, Correctness, and Law

17. A Discourse-Theoretical Conception of Practical Reason

I. Introduction

II. In Defence of the Concept of Practical Reason

III. A Kantian Conception of Practical Rationality: Discourse Theory

A. The Basic Idea of Discourse Theory

B. The Status of Discourse Theory as a Theory of Practical Correctness and Rationality

C. Towards the Justification of the Rules of Discourse

D. The Application of Discourse Theory

18. Problems of Discourse Theory

I. Discourse Theory as a Procedural Theory

II. Rules of Discourse

III. The Ideal Discourse

A. The Problem of Construction

B. The Problem of Consensus

C. The Problem of the Criterion

D. The Problem of Correctness

IV. The Real Discourse

A. The Discursive Modalities

B. The Relative Concept of Correctness

19. Legal Argumentation as Rational Discourse

I. Models

A. The Model of Deduction

B. The Model of Decision

C. The Hermeneutic Model

D. The Model of Coherence

II. A Discourse Theory of the Law

A. General Practical Discourse.

B. Institutionalization

III. Legal Argumentation

A. The Different Kinds of Legal Arguments

B. The Strength of the Arguments

20. Jürgen Habermas's Theory of the Indeterminacy of Law and the Rationality of Adjudication

I. The Problem of Rationality in Adjudication

II. Three Insufficient Answers

III. Ronald Dworkins's Theory of Rights

IV. Law as an Ideally Coherent System of Norms

V. Theory of Legal Argumentation

VI. The Special Case Thesis

A. Moral, General Practical, and Legal Discourse

B. The Rules and Forms of Legal Discourse

C. Unjust Law

D. Specific Legal Nature?

21. Law and Correctness

I. The Concept of the Claim to Correctness

A. The Subjects

B. The Addressees

C. Raising a Claim

II. The Necessity of Connecting Law and Correctness

A. An Absurd Constitutional Article

B. An Absurd Judgment

C. The Alternative

III. Legal and Moral Correctness

A. Law's Open Texture

B. The Autonomy Objection

C. The Objection of Impossibility

D. Reality and Ideal

Index of Names

Index of Subjects.

Notes:

Description based on print version record.

Includes indexes.

ISBN:

0-19-183850-0

0-19-251696-5

OCLC:

1259589512