The Dual Nature of Law

2021 ◽  
pp. 36-50
Author(s):  
Robert Alexy
Keyword(s):  
Essential Feature ◽  
Legal Positivism ◽  
Moral Rights ◽  
Legal Argumentation ◽  
Constitutional Rights ◽  
Dual Nature ◽  
Constitutional Review ◽  
The People ◽  
Majority Principle ◽  
Positive Rights

The argument of this chapter is that the dual-nature thesis is not only capable of solving the problem of legal positivism but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real ‘ought’ and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law.

Constitutional Rights and Democracy: A Reply to Professor Bellamy

2013 ◽  
Vol 14 (8) ◽  
pp. 1039-1051 ◽  
Author(s):  
W.J. Waluchow
Keyword(s):  
Judicial Review ◽  
Constitutional Rights ◽  
Social Cooperation ◽  
Bill Of Rights ◽  
Political Equality ◽  
Constitutional Review ◽  
The People ◽  
Democratic Character ◽  
Self Rule ◽  
Elected Representatives

In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy.

The Existence of Human Rights

2021 ◽  
pp. 142-153
Author(s):  
Robert Alexy
Keyword(s):  
Human Rights ◽  
Moral Character ◽  
Moral Rights ◽  
Constitutional Rights ◽  
Special Significance ◽  
Dual Nature ◽  
Real Dimension ◽  
Positive Law

Human rights are first, universal, second, fundamental, third, abstract, and fourth, moral rights that, fifth, take priority over all other norms. For the question of the existence of human rights, the fourth defining element, the moral character of human rights, is of special significance. The purely moral character distinguishes human rights from constitutional rights. Constitutional rights are positive law at the level of the constitution. This, however, is not to say that no connection exists between human rights and constitutional rights. On the contrary, constitutional rights have to be defined as rights that have been recorded in a constitution with the intention of transforming human rights into positive law. In this respect, constitutional rights have, along with their real dimension, an ideal dimension, that is, they have a dual nature. This implies that the problem of the existence of human rights is essential for constitutional rights, too. Now, human rights exist if they are justifiable. Eight justifications of human rights are considered: the religious, the biological, the intuitive, the consensual, the instrumental, the cultural, the explicative, and the existential. The result of this analysis is an explicative-existential justification, which, while not a perfect justification, is a good justification.

Introduction

2021 ◽  
pp. 1-4
Author(s):  
Robert Alexy
Keyword(s):  
Human Rights ◽  
Legal Argumentation ◽  
Constitutional Rights ◽  
Dual Nature ◽  
Real Dimension ◽  
The Real ◽  
Main Thesis ◽  
Social Efficacy ◽  
The Ideal

This volume comprises three parts. The issue of Part I is the nature of law. The main thesis is that law has a dual nature. It comprises a real as well as an ideal dimension. The real dimension is defined by authoritative issuance and social efficacy, the ideal dimension by the claim to correctness, which includes a claim to justice. This connection of the real and the ideal dimension implies non-positivism. In Part II the connection between constitutional rights, human rights, and proportionality is taken up. The construction of constitutional rights as principles is to be found at the centre. The principles construction implies the necessity of proportionality analysis and, with this, the necessity of balancing. Balancing is defended against numerous critics as a form of rational legal argumentation. Part III concerns the relation between argumentation, correctness, and law.

Balancing, Constitutional Review, and Representation

2021 ◽  
pp. 133-141
Author(s):  
Robert Alexy
Keyword(s):  
Constitutional Rights ◽  
Rational Form ◽  
Constitutional Review ◽  
The People ◽  
Rights Discourse

Balancing is one of the main issues in current debates on the interpretation of constitutional rights. Numerous authors have raised the objection that balancing is both irrational and subjective. It is argued that this objection is unjustified. To show this, balancing is embedded in a theory of discursive constitutionalism that connects the concept of balancing with the concepts of constitutional rights, discourse, constitutional review, and representation. The main theses are these: first, balancing is based on a rational form of argument that can be made explicit by means of the Weight Formula, and second, constitutional review comports with the requirements of democratic legitimation to the extent that it succeeds in becoming an argumentative representation of the people.

scholarly journals The Ideal Dimension of Law

2021 ◽  
pp. 35-61
Author(s):  
Robert Alexy
Keyword(s):  
Human Rights ◽  
Critical Dimension ◽  
Legal Argumentation ◽  
Main Theme ◽  
Constitutional Rights ◽  
Dual Nature ◽  
John Finnis ◽  
Special Case ◽  
Determine Relation ◽  
The Ideal

The main theme of the article is ideal dimension of law. Author argue for a dual nature thesis – which contends that law necessarily comprises both a real or factual dimension and an ideal or critical dimension – and demonstrates how the ideal dimension (which refers primarily to moral correctness) implies the truth of non-positivism. The key provisions of the conception represented in article are substantiated in a polemic with other well-known representative of non-positivism – John Finnis. Particular attention is paid to determine relation between the real and ideal dimensions of law, which involves answering five questions. First, is there an outermost border of law? Second, is legal argumentation based exclusively on authoritative reasons or does it also include non-authoritative reasons? Third, what is the relation between human rights and legal systems? Forth, is democracy to be understood exclusively as a decision procedure or also as a form of discourse? Fifth, do legal system comprise only rules expressing a real “ought” or also principles expressing an “ideal ought”? These five questions are answered by the following five theses: the first with the Radbruch formula; he second with the special case thesis; the third with the thesis that constitutional rights are to be understood as attempts to positivize human rights; the fourth with the deliberative model of democracy; and the fifth with principles theory. All five theses turn on the same point: the claim to correctness.

Law's Ideal Dimension

2021 ◽  
Author(s):  
Robert Alexy
Keyword(s):  
Discourse Theory ◽  
Legal Philosophy ◽  
Necessary Condition ◽  
Legal Argumentation ◽  
Constitutional Rights ◽  
Legal Certainty ◽  
Dual Nature ◽  
Real Dimension ◽  
The Third ◽  
Social Efficacy

Law in general, including constitutional rights and legal argumentation, has a dual nature. This is the underlying thesis of this collection of twenty-one chapters devoted to legal philosophy and constitutional law. Law connects a real dimension, defined by authoritative issuance and social efficacy, with an ideal dimension, defined by the claim to correctness, which essentially includes a claim to justice. The chapters of the first part of the book establish on this basis a non-positivistic concept of law. In the second part, the concept of constitutional rights is connected with proportionality analysis, explicated by principles theory and understood as a necessary condition of the rationality of the application of constitutional rights. In the third part, it is shown that rationality is possible in law because rational legal argumentation is possible. Here the basis is discourse theory. The final result is a system that brings the formal idea of legal certainty together with the substantive idea of justice.

From Property Rights to Liberty Rights: We the Corporations, A Review Essay

2021 ◽  
Vol 95 (2) ◽  
pp. 335-340
Author(s):  
Laura Phillips Sawyer
Keyword(s):  
Civil Rights ◽  
Civil Liberties ◽  
Political Process ◽  
Constitutional Rights ◽  
Bill Of Rights ◽  
State Action ◽  
Unequal Treatment ◽  
The People ◽  
The Right ◽  
We The People

A long-standing, and deeply controversial, question in constitutional law is whether or not the Constitution's protections for “persons” and “people” extend to corporations. Law professor Adam Winkler's We the Corporations chronicles the most important legal battles launched by corporations to “win their constitutional rights,” by which he means both civil rights against discriminatory state action and civil liberties enshrined in the Bill of Rights and the Constitution (p. xvii). Today, we think of the former as the right to be free from unequal treatment, often protected by statutory laws, and the latter as liberties that affect the ability to live one's life fully, such as the freedom of religion, speech, or association. The vim in Winkler's argument is that the court blurred this distinction when it applied liberty rights to nonprofit corporations and then, through a series of twentieth-century rulings, corporations were able to advance greater claims to liberty rights. Ultimately, those liberty rights have been employed to strike down significant bipartisan regulations, such as campaign finance laws, which were intended to advance democratic participation in the political process. At its core, this book asks, to what extent do “we the people” rule corporations and to what extent do they rule us?

scholarly journals The power of the people: the meaning of kratos in dēmokratia

2021 ◽  
Vol 1 ◽  
pp. 56
Author(s):  
John McGuire
Keyword(s):  
Political Discourse ◽  
Political Power ◽  
Constitutional Rights ◽  
Electoral Success ◽  
Old Comedy ◽  
Black Lives Matter ◽  
The People ◽  
Satisfactory Answer

In this paper, I reconstruct the notion of kratos as a unique and distinguishable exercise of political power. Using examples from 5th- and 4th-century Attic tragedy, Old Comedy, and forensic oratory, I show how kratos was used in Athenian cultural and political discourse to convey the irrefutability of a claim, the recognition of someone’s prevailing over another, and the sense of having the last word—all of which makes kratic power dependent upon its own continued demonstrability. I argue that the peculiarly performative character of kratos has little or no role within contemporary democratic thinking because the agency of the dēmos is largely mediated through the mechanisms of electoral success and constitutional rights. Nevertheless—and regardless of whether they are ultimately successful in achieving their stated political aims—the spontaneous, organisationally diffuse protests operating extra-institutionally under the banners of #MeToo and Black Lives Matter reveal how the attempted ‘domestication’ of kratos, and the sublimation of its peculiar power into piecemeal reform, was never a realistic or satisfactory answer for democratic discontent.

scholarly journals The Nexus between Fundamental Rights and Necessities of Life: A Case Study of Pakistan

2021 ◽  
Vol VI (I) ◽  
pp. 9-16
Author(s):  
Naseem Razi ◽  
Rashida Zahoor ◽  
Ghulam Abbas
Keyword(s):  
Fundamental Rights ◽  
Clean Water ◽  
Constitutional Rights ◽  
The People ◽  
The Right

The Constitution of Pakistan 1973 protects its citizens by guaranteeing some fundamental rights. It is, however, a matter of great concern that these rights do not cover the "right to access the necessities of life like access to clean water, food, clothing, shelter, and medicine etc". It, thus, leads imperfection of the constitutional rights. Therefore, this study aims to highlight this gap by evaluating the constitutional fundamental rights in the light of the necessities of life. This study concludes that lack of access to the necessities of life has made the people least concern towards the national issues and development of the country. Hence, this paper recommends filling up this gap and to incorporate the "right to access to the necessities of life" in the Constitution 1973.

Sign in / Sign up

Export Citation Format

Share Document