Law’s Dual Nature. Lectio Magistralis di Robert Alexy

Does law have an ideal dimension? Or can the concept and the nature of law be completely grasped by considering its real dimension alone? The dual-nature thesis which stands in the centre of my legal philosophy sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical one. The factual dimension concerns law as fact, that is, as social facts. The social facts to which it refers are authoritative issuance and social efficacy. The ideal dimension refers to correctness, primarily to moral correctness. If one claims that social facts alone can determine what is and is not required by law, this amounts to the endorsement of a positivistic concept of law. Once moral correctness is added as a necessary third element, everything changes fundamentally. A non-positivist concept of law emerges. Thus, the dual-nature thesis, in setting out the claim that law necessarily comprises both a real and ideal dimension, implies non-positivism.

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