Entradas
Compartimos con todos nuestros seguidores este interesante debate entre los dos más importantes filósofos del derecho en la actualidad. El primero partidario de la teoría del derecho natural y el segundo del no positivismo como él mismo se hace llamar. A continuación los resúmenes y el link de sus artículos:
Some Reflections on the Ideal Dimension of Law and on the Legal Philosophy of John Finnis
Robert Alexy*
Abstract
This article defends a non-positivist theory of law, that is, a theory that accepts the necessary connection between legal validity and moral correctness by reference to the work of John Finnis. It begins with the dual nature of law as comprising both a real or factual dimension and an ideal dimension. Important examples show that at least some kinds of moral defect can deprive law of validity from the perspective of a participant in the legal system. The nature of the connection between moral defectiveness and legal defectiveness is specified in terms of three possibilities: exclusive non-positivism, in which all cases of moral defect render law invalid; inclusive non-positivism, in which moral defect renders law invalid in some cases; and super-inclusive non-positivism, in which legal validity is not affected by moral defect at all. The paper argues for inclusive non-positivism as exemplified by the Radbruch Formula, according to which extreme injustice is not law, and which strikes the right balance between the ideal and real dimensions of law, against John Finnis’s account, which can be seen as an example of super-inclusive non-positivism, although his most recent work has tended towards the inclusive version.
Full paper here.
Law as Fact and as Reason for Action: A Response to Robert Alexy on Law’s “Ideal Dimension”
Abstract
Robert Alexy’s 2013 Natural Law Lecture, published in vol. 58 of this journal, presents law as having two dimensions, ideal and real, and thus a dual nature, to be elucidated by a conceptual analysis distinguishing between the observer’s and the participant’s perspective. It argues on this basis for a “non-positivist” theory of law that is “inclusive” in that it classifies some unjust laws as laws, but not all (and is thus not “super-inclusive”); it rejects the “exclusive non-positivism” that would treat every injustice in a law’s making or content as excluding it from the class of valid laws. Gustav Radbruch’s famous post-War formula—extreme injustice invalidates law—adopted in the jurisprudence of Germany’s higher courts, is thus to be defended as expressing the inclusive non-positivism that articulates the best concept of law that can be constructed and defended as expedient. Alexy’s 2013 article classifies the theory inNatural Law and Natural Rights as super-inclusive, but sees hopeful signs of inclusive non-positivism in some recent writings of its author. The present article argues that Natural Law and Natural Rights defends, in a sense, all three “non-positivist” positions, each in its proper place as a truth about unjust law: it is (from an observer’s perspective) a fact; it is (from a participant’s perspective) deprived by any significant injustice of law’s generic and presumptive status (legal-moral validity) as a reason for action; and it is (from the perspective of particular participants in their circumstances) sometimes, despite its injustice and legal-moral invalidity, a source (by virtue of both the foregoing truths taken with other moral responsibilities and needs) of collateral obligations the extent of which is likely, often, to track, approximately, the results of applying the Radbruch formula. The article argues against Alexy’s theoretical procedures both of conceptual analysis and of concept construction, regrets the “non-positivist/positivist” labeling, raises doubts about speaking of duality of dimensions and nature, and notes the significance of the 2013 article’s further thesis that any injustice in a law impairs (“qualifies”) its legal status.
Full paper here
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