Robert Alexy, Kiel: Hauptelemente einer Theorie der Doppelnatur des Rechts

Abstract: The dual nature thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. This thesis, however, remains as thus stated abstract and formal. In order to arrive at a concrete content and a clear structure, the thesis has to be explicated within a system. The overarching idea of this system is the institutionalization of reason. The political form manifested by the system is discursive constitutionalism. This system is generated in three steps. First, the claim to correctness raised by law and the procedure of discourse are analysed. This leads, second, to the necessity of the positive dimension of law. The necessity of positivity, however, by no means implies positivism. On the contrary. Non-positivism is elaborated in a third step, which is concerned with the connection of law as idea, as defined at the first step, and law as fact, as adumbrated in the second step. This connection comprises the postulate of an outermost limit of law (Radbruch formula), the ideas of human and constitutional rights, democracy, and constitutional review, the conception of legal argumentation as a special case of general practical argumentation, and the theory of principles. If it is possible to reconcile the ideal with the real at all, then only by means of such an attempt to institutionalize reason.

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