Are there any elements of juridicity beyond positive law in Robert Alexy’s non-positivism?
The aim of this article is to assess Alexy’s non-positivist account of the law’s dual nature from the viewpoint of the question of whether he permits the existence of the elements of juridicity that do not meet the criteria for identifying valid positive law. An affirmative answer to that question w...
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| Pubblicato in: | URI:https://journals.openedition.org/revus, |
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| Autore principale: | |
| Natura: | Article ou chapitre numérique |
| Lingua: | Anglais |
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Revus
2023
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| Soggetti: | |
| Accesso online: | Accès Université d'Orléans et IFPM Accès Université d'Orléans et IFPM |
| Riassunto: | The aim of this article is to assess Alexy’s non-positivist account of the law’s dual nature from the viewpoint of the question of whether he permits the existence of the elements of juridicity that do not meet the criteria for identifying valid positive law. An affirmative answer to that question would fit within the ordinary non-positivist stance that denies the positivists’ thesis that “all law is positive law”. In the article, I argue that Alexy, however, systematically denies the existence of non-posited elements of juridicity. I first explore Alexy’s foundational commitment to the social thesis in describing law’s nature. Next, I present his claim that the principles of justice cannot themselves constitute law without meeting the requirements of source-based positivity of legal norms. Finally, I clarify that, regardless of the non-positivist structure of his crucial arguments, Alexy does not ultimately hold that law may be “in” non-posited realities. |
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