Alexy Between Positivism and Non-positivism

Abstract

The classic issue concerning the relation between law and morality is nowadays expressed in terms of the debate between positivism and non-positivism. One of the main actors in that debate is Robert Alexy, who tries to offer in his book, The Argument from Injustice. A Reply to Legal Positivism, arguments both analytical and normative to support and develop the non-positivistic thesis. The present essay analyzes and rejects the analytical arguments advanced by Alexy: the argument of the applicability of Radbruch’s formula and the argument of the claim to correctness, both in their close relation to the distinction between the observer’s and the participant’s perspectives of legal practice.