Legal scholar challenges theory linking law to universal correctness
A new analysis questions whether law must inherently claim to be "correct" — a foundational assumption in legal philosophy. The debate matters for policymakers and regulators: if law's legitimacy doesn't depend on meeting universal standards, it reshapes how governments can justify legal systems and how courts should interpret rules.
Originaltitel: Robert Alexy's Legal Constitutivism
<p>In this chapter, I discuss Robert Alexy's dual-nature theory of law conceived as a version of legal constitutivism. Alexy argues (i) that legal acts necessarily raise a claim to correctness; (ii) that it follows from law's raising a claim to correctness that law has a dual nature; (iii) that the dual nature of law implies that legal acts that do not raise a claim to correctness, or raise one but fail to satisfy it, will lack legal character or else will be legally defective; (iv) that the dual nature of law is incompatible with the separation thesis of legal positivism; and (v) that it follows from law's dual nature that legal argumentation is a special case of general practical argumentation. Spaak argues, however, (A) that even if in some sense legal acts necessarily raise a claim to correctness, it does not follow that law has a dual nature; (B) that even if it did follow that law has a dual nature, it would not follow (i) that the separation thesis of legal positivism was false, or (ii) that legal argumentation was a special case of general practical argumentation; and (C) that this in turn suggests that constitutivists about practical reason are fighting an uphill battle.</p>