Juristic Concept of the Validity of Statutory Law [electronic resource] : A Critique of Contemporary Legal Nonpositivism /
Grabowski, Andrzej.author.
This book presents the theory of the validity of legal norms, aimed at the practice of law, in particular the jurisdiction of the constitutional courts. The postpositivist concept of the validity of statutory law, grounded on a critical analysis of the basic theories of legal validity elaborated up to now, is introduced. In the first part of the book a contemporary German nonpositivist conception of law developed by Ralf Dreier and Robert Alexy is analysed in order to answer the question whether the juristic concept of legal validity should include moral standards or criteria. In the second part, a postpositivist concept of legal validity and an innovative model of validity discourse, based on the juristic presumption of the validity of legal norms, are proposed. The book is a work on analytical legal theory, written from a postpositivist, detached point of view.
Description based upon print version of record.
Preface; Abbreviations; Contents; Chapter 1: Introduction; Part I: Critique of the Nonpositivist Conception of Law; Chapter 2: The Nonpositivist Concept of Law; 2.1 Historical Background: The Role of ``Radbruch ́s Formula ́ ́; 2.2 The Nonpositivist Conception of Ralf Dreier and Robert Alexy; 2.3 Some Remarks on the Construction of the Nonpositivist Definition of Law; 2.4 The Nonpositivist Conception of Law and the Concept of Legal Validity (Preliminary Remarks); Chapter 3: Argumentation for the Nonpositivist Concept of Law; 3.1 The Methodological Framework of Nonpositivist Argumentation
3.2 Ralf Dreier ́s Nonpositivist Argumentation3.3 Robert Alexy ́s Nonpositivist Argumentation; 3.3.1 Alexy ́s Analytical Argumentation; 3.3.2 Alexy ́s Normative Argumentation; 3.3.3 Revisions and Supplements in Begriff und Geltung des Rechts; Chapter 4: Critique of Nonpositivist Argumentation; 4.1 A Critique of the Nonpositivist Conception of Law; 4.2 Controversial Points of Nonpositivist Argumentation; 4.3 Lex iniustissima non est lex?; 4.3.1 Reconstruction of the Nonpositivist Standpoint; 4.3.2 Discussion of the Positivist Objection; 4.4 The Non-cognitivist Objection
4.4.1 Is Alexy a Cognitivist?4.4.2 Preliminary Appraisal of the Non-cognitivist Objection; 4.5 Discursive Rehabilitation of Practical Reason?; 4.5.1 Logical Validity of the Transcendental-Pragmatic Argument; 4.5.2 Justification of the Premises of the Transcendental-Pragmatic Argument; 4.5.3 Conclusion of the Analysis of the Transcendental-Pragmatic Argument; 4.5.4 Additional Elements of the Justification of the Universal Validity of the Rules of Practical Discourse; 4.5.5 Is the Discursive Rehabilitation of Practical Reason Successful?
4.6 Is the Nonpositivist Conception of Law Truly Nonpositivist?4.6.1 Arguments Justifying Suspicions of Crypto-Positivism; 4.6.2 Identification of the Opponent: Trennungsthese; 4.6.3 Hard Positivism, Soft Positivism and Nonpositivism; 4.7 The Problem of Justification of the Argument from Correctness; 4.7.1 Justification by Means of Performativer Widerspruch: Preliminary Remarks; 4.7.2 From Cogito, Ergo Sum to Claim to Correctness; 4.7.3 Justification of Richtigkeitsargument by Means of Recognition of ``Performative Contradiction ́ ́; 4.7.4 Justification by Means of the Argument from Alternative
4.8 Critique of Normative Argumentation4.8.1 Argument from Efficiency; 4.8.2 Argument from Candour; 4.8.3 The Problem of an ``Enlightened ́ ́ Morality; 4.9 Some Remarks About Nonpositivist Empirical Argumentation; 4.10 An Attempt at Evaluating the Nonpositivist Conception of Law; Chapter 5: The Nonpositivist Conception of Law and the Juristic Concept of the Validity of Law; 5.1 General Objections Against the Nonpositivist Definitions of Law; 5.2 Specific Objections from the Point of View of Legal Theory and Legal Practice
5.3 The Need for an Axiologically Detached and Impartial Concept of the Validity of Law
Includes bibliographical references and index.
This book presents the theory of the validity of legal norms, aimed at the practice of law, in particular the jurisdiction of the constitutional courts. The postpositivist concept of the validity of statutory law, grounded on a critical analysis of the basic theories of legal validity elaborated up to now, is introduced. In the first part of the book a contemporary German nonpositivist conception of law developed by Ralf Dreier and Robert Alexy is analysed in order to answer the question whether the juristic concept of legal validity should include moral standards or criteria. In the second part, a postpositivist concept of legal validity and an innovative model of validity discourse, based on the juristic presumption of the validity of legal norms, are proposed. The book is a work on analytical legal theory, written from a postpositivist, detached point of view.
Law—Philosophy.
Law.
Constitutional law.
Political science.
Language and languages—Philosophy.
Theories of Law, Philosophy of Law, Legal History.
Fundamentals of Law.
Constitutional Law.
Philosophy of Law.
Philosophy of Language.