By Robert Alexy
ISBN-10: 0198259875
ISBN-13: 9780198259879
ISBN-10: 0199584214
ISBN-13: 9780199584215
On the middle of this e-book is the age-old query of ways legislation and morality are comparable. The criminal positivist, insisting at the separation of the 2, explicates the concept that of legislations independently of morality. the writer demanding situations this view, arguing that there are, first, conceptually worthwhile connections among legislation and morality and, moment, normative purposes for together with ethical components within the notion of legislations. whereas the conceptual argument on my own is simply too constrained to set up a sufficiently robust connection among legislations and morality, and the normative argument by myself fails to handle the character of legislations, the 2 arguments jointly help a nonpositivistic idea of legislations, toppling criminal positivism qua complete thought of law.
The writer makes his case inside of a conceptual framework of 5 differences that may be variously mixed to symbolize a multiplicity of presuppositions or views underlying the enquiry into the connection of legislations and morality. during this context, it could actually certainly be proven that there are views that bespeak completely a positivistic inspiration of legislations. The decisive aspect, notwithstanding, is that there's a standpoint, essential to the legislations, that unavoidably presupposes a nonpositivistic inspiration of legislations. this can be the point of view of a player within the felony process, requesting the proper solution to a criminal query during this felony approach. The participant-thesis is validated by way of entice Gustav Radbruch's formulation (extreme injustice isn't legislation) and to the judge's balancing of ideas in finding out a concrete case. the writer arrives at an idea of legislation that systematically hyperlinks classical parts of felony positivism - authoritative issuance and social efficacy - with the desideratum of nonpositivistic felony concept, correctness of content.
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Additional resources for The Argument from Injustice: A Reply to Legal Positivism (Law)
Sample text
1995), 27–41 (defending analogical reasoning from results); Levi, An Introduction to Legal Reasoning, 1–19 (same). , Levi, An Introduction to Legal Reasoning, 1–19; Llewellyn, The Bramble Bush, 72–5 (arguing that courts are free either to maximize the effect of a precedent decision by applying a stated rule or to minimize its effect by distinguishing cases with dissimilar facts, as they wish). See generally, Brian Leiter, “American Legal Realism” in Martin P. Golding and William A. , The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell, 2005).
In the nineteenth century, the House of Lords endorsed what appeared to be a rule model of precedent. Beamish v. Beamish, (1861) 9 HLC 274; London Tramways v. London County Council, [1898] AC 375. However, the House frequently distinguished cases (a practice we discuss below), and the House ultimately abandoned its position. See Zenon Bankowski, D. Neil MacCormick, and Geoffrey Marshall, “Precedent in the United Kingdom” in MacCormick and Summers, Interpreting Precedents, 326. The English approach had been much criticized as a source of rigidity, injustice, inconsistency, and disingenuous interpretation.
Michael Moore can be read as adopting this stance. See Moore, “Precedent, Induction, and Ethical Generalization” in Goldstein, Precedent in Law, 210 (“one sees the common law as being nothing else but what is morally correct, all things considered – with the hooker that among those things considered are some very important bits of institutional history which may divert the common law considerably from what would be morally ideal”). However, Moore also expresses sympathy, at least procedurally, with the model of principles described below.