Robert Alexy's Ideal Dimension of Law: Descriptive Theory of the Constitutional Legal system or Normative Theory of the Concept of Law?

• Autores: Andrea Porciello
• Localización: Archiv für Rechts-und Sozialphilosophie, ARSP, ISSN 0001-2343, Vol. 103, Nº 4, 2017, págs. 483-493
• Idioma: inglés
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• Resumen

  • The main purpose Robert Alexy tries to achieve with The argument from Injustice and all the other works he wrote on the same topic is to prove, against legal positivism, that law is a bidimensional concept comprising both a real or institutional dimension and an ideal one. As we know, positivism believes that law is valid for formal or factual reasons that just contingently, this is the inclusive variant, may incorporate moral elements; otherwise Professor Alexy believes that law, the concept of law, is to be defined such that, alongside these fact oriented-properties, moral elements must be included.

    This paper is intended to analyse the core of Professor Alexy's connection argument between factual and ideal dimensions of the law, in order to support this central conclusion: his theory is only perfectly acceptable as a theory "of and about" democratic and constitutional legal systems, and not if intended as a theory "of and about" the concept of law.