Law's Claim To Correctness And Its Methodological Implication

Among contemporary German Jurists,the core thesis of Legal Positivism is also read that there is no necessary connection between law and morality. And the prevailing view is to justify or reject this thesis through normative arguments. However, Robert Alexy has proved that the law, besides conceptually consisting of elements of authoritative issuance and social efficacy, necessarily lays Claim to Correctness of Content, which is deduced with analytical arguments. And if this Claim to Correctness of Content is proven to necessarily include moral elements, then the necessary-connection-thesis endowed by non-positivism can be justified. Since the Claim to Content Correctness is just a "claim", and cannot accomplish the second step of justification directly, it is from now on that Alexy suggests another two arguments, i.e. the Argument from Injustice, which is a rational reconstruction of "Radbruch's Formula", as well as the Argument from Principle, which is adopted and adapted from Dworkin's theory of legal principle. Through these two arguments moral elements can be incorporated into law. Distinct to the Argument from Claim to Correctness, however, the Argument from Injustice generally presupposes the "Radbruch's Formula", and hence is a typical normative argumentation. Likewise, the Argument from Principle must dwell on the qualitative, not only in degree, distinction between legal rules and principles, in other words, the law necessarily incorporates principles; furthermore, competing principles should be balanced with the guide of the Claim to Correctness. Otherwise it is not to say that these two normative arguments are of no use. According to Alexy, if they can be well founded on the ground of the Claim to Correctness, then the whole structure of argumentation will gain the analytic force, so as to accomplish the theoretical goal. Eventually, the Argument from Claim to Correctness, together with Argument from Injustice and Argument from Principle which are based upon the former, refutes the no-necessary-connection thesis, and reaches the conclusion of a qualifying Non-positivism.Additionally, the three arguments above provide a fresh analytic framework of the theory of legal validity. Legal positivism usually combines legal validity with its social efficacy, whereas Non-positivism attempts much more to incorporate the Correctness of Content into legal validity, which leads to the"outer"problem concerning collisions of validity. By the standpoint of non-positivism, Alexy distinguishes two levels as followed: on the level of system of norms, it should be by and large socially efficacious, while be justified to the minimal extent in respect to the Claim to Content Correctness, and not be affected directly by the Argument from Injustice; otherwise, on the level of single norm, it should only be to the minimal extent socially efficacious as well as be justified in respect to the Claim to Correctness of Content, while be directly affected by the Argument from Injustice under extraordinary circumstances. Besides the outer problem, legal validity still has"inner"problem concerning"basic norm". Non-positivist concedes the fiction of basic norm, while insists that, the content of basic norm should not be limited to the two elements endowed by positivist, but also contain moral elements; it is emphasized that, although basic norm needs no further legal justification, it cannot ever give up the opportunity of moral as well as other non-legal justification! It is in this way that the Argument from Correctness, together with Argument from Injustice and Argument from Principle, comes into play.The Claim to Correctness has its root in the tradition of Neo-Kantianism legal philosophy. And connecting with the general theory of practical discourse, this claim grants the law an ideal dimension of procedure and justifiability. In contrary, Joseph Raz proposed that the law has a Claim to Legitimate Authority, which was concerned with a different problem as well as from a distinct tradition. Moreover, the target Alexy rejected is more likely to the Inclusive Positivism in Anglo-Saxon tradition, while Joseph Raz'response, which was from the standpoint of the Exclusive Positivism, is no less than a lure to the trap.