Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Legal Theory Today)

391 Pages·2007·3.2 MB·English

by  George Pavlakos

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Aphilosophicalsystemisnotwhatonewouldexpecttofindintheworkof
a contemporary legal thinker. Robert Alexy’s work counts as a striking
exception. Over the past 29 years Alexy has been developing, with
remarkable clarity and consistency, a systematic philosophy covering most
of the key areas of legal philosophy. Kantian in its inspiration, his work
admirably combines the rigour of analytical philosophy with a repertoire
ofhumanitarianidealsreflectingthetraditionoftheGeisteswissenschaften,
rendering it one of the most far-reaching and influential legal philosophies
inourtime.Thisvolumehasbeendesignedwithtwofociinmind:thefirst
is to reflect the breadth of Alexy’s philosophical system, as well as the
varieties of jurisprudential and philosophical scholarship in the last three
decades on which his work has had an impact. The second objective is to
provide for a critical exchange between Alexy and a number of specialists
in the field, with an eye to identifying new areas of inquiry and offering a
new impetus to the discourse theory of law. To that extent, it was thought
that a critical exchange such as the one undertaken here would most
appropriately reflect the discursive and critical character of Robert Alexy’s
work. The volume is divided into four parts, each dealing with a key area
of Alexy’s contribution. A final section brings together concise answers by
Robert Alexy. In composing these, Alexy has tried to focus on points and
criticisms that address new aspects of discourse theory or otherwise point
the way to future developments and applications. With its range of topics
of coverage, the number of specialists it engages and the originality of the
answers it provides, this collection will become a standard work of
reference for anyone working in legal theory in general and the discourse
theory of law in particular.
LAW, RIGHTS AND DISCOURSE
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Edited by
George Pavlakos
The Legal Philosophy of Robert Alexy
Law, Rights and Discourse
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Alexander Peczenik (1937-2005)
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This volume springs from a workshop on the discourse theory of law
which was held on 11 and 12 June 2004 at Queen’s University, Belfast
under the auspices of the Forum for Law and Philosophy. The event
constitutedthesecondinaseriesofWorkshopsinAnalyticalJurisprudence
that regularly invite state of the art papers to address key issues in legal
philosophy. The choice of the topic of the second volume was dictated by
the intent to highlight the close links between schools of analytical
jurisprudence beyond territorial or any other barriers formally conceived.
In that respect, Robert Alexy’s work is, perhaps, the best proof for the
absence of such barriers, thereby demonstrating the potential for a fertile
dialogue between English-speaking and ‘continental’ or ‘other’ schools of
analytical legal theory that has yet to be explored in its full potential.
The essays which comprise the volume are original contributions that
were either presented at the workshop or specially commissioned for the
collection.Boththeworkshopand,subsequently,thebookwouldnothave
beenpossibleifitwerenotforthegenerousfinancialsupportoftheBritish
Academy,SocialandLegalStudies,theQueen’sLawSchool,theManches-
ter Law School and the Publications Fund of the Faculty of Social Sciences
at Queen’s. Most of the editing of the book and the writing up of my
portionswerecompletedin2005whenIwasanAlexandervonHumboldt
Research Fellow at the University of Kiel. To these organisations I owe my
profound thanks.
Both the workshop and the subsequent composition of this book have
been intellectually most stimulating and rewarding. All of the workshop
participants have contributed to the editing and shaping of this volume,
and all came up with insightful comments and suggestions which proved
invaluable for improving the final result. However, a number of people
deserve special mention, for without them the book would have never
found its way to the publisher: Emmanuel Melissaris was a splendid
co-organiser of the Belfast workshop and a most incisive advisor in the
laterstageofthepreparationofthecollection.BonnieLitschewskiPaulson
and Stanley L Paulson, in their characteristic intellectual manner, have
provided tremendous help with the editing of the volume as well as
numerous suggestions to individual authors and myself without which the
end product would have been much poorer; Gerard Conway offered
valuable editorial help concerning some of the chapters written by non
English-speakingscholars;RichardHart,asever,providedhisunhampered
support and expert advice throughout the preparation of the book; my
wife, Estelle, has been a constant source of energy and inspiration during
Preface
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viii Preface
the entire project. It is, however, Robert Alexy who has instilled life into
this collection, by investing enormous amounts of energy to synthesise the
various contributions in his replies. His dedication to the entire undertak-
ing and attention to detail during the various stages of the preparation of
the book has not only made a huge difference to the final result, but has
also been a most rewarding intellectual experience for me personally.
Sadly, despite his lively engagement with the conference in Belfast,
Aleksander Peczenik did not live to complete his contribution. His sudden
deathwasashocktoallofus,friends,colleaguesandformerstudents.The
gap he left behind will be difficult to fill both in personal and academic
terms, given his pioneering work in legal argumentation and his deep
knowledge of discourse theory. This book is dedicated to him.
ART EBATE ON EGAL OSITIVISM
ART AW AND ORALITY
ART ONSTITUTIONAL IGHTS
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Preface vii
List of Contributors xi
Introduction 1
George Pavlakos
P I: A D L P
1. The Argument from Justice, or How Not to Reply to Legal
Positivism 17
Joseph Raz
2. An Answer to Joseph Raz 37
Robert Alexy
P II: L M
3. Why Law Makes No Claims 59
Neil MacCormick
4. How Non-Positivism can Accommodate Legal Certainty 69
Stefano Bertea
5. Two Concepts of Objectivity 83
George Pavlakos
6. Discourse Ethics, Legal Positivism and the Law 109
Philippos Vassiloyannis
P III: C R
7. Political Liberalism and the Structure of Rights: On the Place
and Limits of the Proportionality Requirement 131
Mattias Kumm
8. Proportionality, Discretion and the Second Law of Balancing 167
Julian Rivers
9. Human Rights and the Claim to Correctness in the Theory of
Robert Alexy 189
Jan Sieckmann
Contents