Abstract
The contemporary theory and philosophy of law offers a number of opportunities and methods for analysing the problems whose topicality is confirmed in everyday legal practice. If we confine ourselves to the analytical theory of law, then on the one hand, we can choose from the different versions of legal positivism, in particular the soft (inclusive) positivism and the hard (exclusive) one, and on the other hand, we can opt for the German nonpositivism, whose conception, developed by Ralf Dreier and Robert Alexy, constituted the object of criticism presented in the first part of this study. Interestingly, in the context of a broadly understood legal nonpositivism, we can also consider two of its versions, per analogiam referred to as inclusive and exclusive nonpositivism.
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Notes
- 1.
A comment heard by Hart during his stay at Harvard Law School from 1956–1957, quoted by him in an interview with D. Sugarman, ‘Hart Interviewed: H.L.A. Hart in Conversation with David Sugarman’, op. cit., p. 279.
- 2.
- 3.
Cf. M. La Torre, ‘On Two Distinct and Opposed Versions of Natural Law: “Exclusive” versus “Inclusive”’, op. cit., pp. 199ff. and Constitutionalism and Legal Reasoning, Dordrecht 2007, pp. 135ff. According to La Torre, by analogy to inclusive and exclusive legal positivism, one can distinguish between inclusive and exclusive theories of natural law. According to him, the former theories include Habermas’ and Alexy’s discursive theories of law, while the latter – Finnis’ theory of natural law and legal idealism of the Sheffield School (D. Beyleveld and R. Brownsword). The criterion of this distinction is a monologue or dialogical (discursive) method of the moral justification of law. However, these two concepts can also be analysed in the context of the “definitional triangle of law” proposed by Alexy – cf. Chap. 2, pp. 16ff. In such an approach, which we advocate for, when we relate it to a broadly understood nonpositivism, we can say that nonpositivism can be referred to as “inclusive” if, in the definition of law, besides the element of substantial correctness, the concepts of due enactment and social efficacy are also used, while it is “exclusive” if it bases this definition only on the first of these concepts. It should be noted that Alexy is very likely to interpret this distinction precisely in this way when he concedes that nonpositivism based on “Radbruch’s formula” constitutes an example of inclusive nonpositivism – cf. idem, ‘Effects of Defects – Action or Argument? Thoughts about Deryck Beyleved and Roger Brownsword’s Law as a Moral Judgment’, RJ 19 (2006), p. 173.
- 4.
See A. García Figueroa, ‘Bemerkungen zu einer dispositionellen Erklärung des Rechts anhand der Diskussion der Verbindungs- und Trennungsthese’, ARSP 92 (2006), pp. 363ff. On the conceptual logical difference between nonpositivism and non-positivism cf. Introduction, note 17 at p. 8, and the references cited therein.
- 5.
Cf. L. Morawski, ‘Hard Positivism, Soft Positivism and Dead Positivism’, op. cit., p. 179, who notes that in the frames of the postpositivist jurisprudence, eclecticism “does not necessarily have to be a bad thing”.
- 6.
Cf. a similar opinion expressed by B. Brożek, Rationality and Discourse, op. cit., p. 233, who emphasises the futility of the ontological debate about whether there is a necessary connection between law and morality.
- 7.
We devoted much room (i.e., the first part of the study) to reaching the conclusion that, all things considered, this dispute is irrelevant in the sense that the concept of the validity of law should be constructed independently.
- 8.
- 9.
L. Morawski, ‘Hard Positivism, Soft Positivism and Dead Positivism’, op. cit., pp. 159ff.
- 10.
Cf. the references cited in Chap. 4, notes 288–291 at pp. 137–138.
- 11.
See U. Neumann’s review of R. Alexy’s book: Begriff und Geltung des Rechts, op. cit., p. 246. In the context of the nonpositivist argument from principles, the Frankfurt philosopher calls into question the conceptual connection between law and morality. In short, the “Neumann’s dilemma” is as follows: if taking into consideration a specific principle when settling a court case is legally obligatory, then it is indeed a legal principle and, accordingly, there does not arise the question of the necessary connection between law and morality; whereas as far as only the moral principle is concerned, taking it into consideration by the judge ex definitione cannot be legally obligatory, so this question also does not arise.
- 12.
See R. Alexy, ‘Law and Correctness’, op. cit., pp. 217–219 [German version, pp. 15–16]. Simply put, according to him, the dilemma of nonpositivism resolves itself when we realise which concept of law – whether positivist or nonpositivist – we make use of.
- 13.
Ibidem, p. 219 [German version, p. 16].
- 14.
We disregard here the problem related to a self-destruction of “the law of nonpositivists”, which we referred to in Chap. 4, at pp. 165ff. However, it is worth quoting Raz’s thesis, though it is tempting to be, as he puts it, “provocative rather than accurate”. The Oxford philosopher states that “one may say that the very existence of the law, even of morally legitimate law, means the exclusion of morality”, and that is because otherwise the law will not have any impact (“make no difference”) on the content of judicial decisions, in effect based on morality – cf. idem, “Incorporation by Law”, op. cit., p. 8.
- 15.
R. Alexy, ‘Law and Correctness’, op. cit., p. 219 [German version, p. 16].
- 16.
For more on my ideas concerning the programme of the postpositivist theory of law see A. Grabowski, ‘W stronę postpozytywizmu prawniczego. Szkic z metodologii prawoznawstwa’ [In the Direction of Legal Postpositivism. A Sketch on the Methodology of Jurisprudence], AUW 3337 (2011), pp. 159ff.
- 17.
The postpositivist jurisprudence, yet in the context of the philosophy of the science which departs from the spirit of twentieth-century philosophical positivism, has already been discussed about twenty years ago by J. Leszczyński, ‘Postpozytywistyczny obraz prawoznawstwa’ [Postpositivist Image of Jurisprudence], CC 6/41–1/42 (1988–1989), pp. 53–60. We naturally use the concept of the postpositivist theory of law in another sense – what we have in mind here is the theory that follows legal positivism. Accordingly, such a use somehow resembles the way in which L. Morawski uses the concept of the post-positivist jurisprudence – cf. idem, ‘Hard Positivism, Soft Positivism and Dead Positivism’, op. cit., p. 178, and A. Calsamiglia – the concept of postpositivism – cf. idem, ‘Postpositivismo’, op. cit. For more on other scholars (such as N. MacCormick, A. Somek, N. Forgó, M. Atienza and J. Ruiz Manero) who use this concept or related concepts cf. A. Grabowski, ibidem, pp. 157ff.
- 18.
Cf. Chap. 7, p. 247.
- 19.
J. Stelmach, ‘Obowiązywanie prawa w sensie absolutnym i relatywnym’, op. cit., p. 323.
- 20.
Cf. W.B. Galie, ‘Essentially Contested Concepts’, PAS LVI (1955–1956), pp. 167–198.
- 21.
What can come as a certain consolation is the fact that it was not the aim at all, and in light of the critical analysis we can state that also other jurisprudential conceptions of legal validity do not provide any commonly acceptable explanation of this phenomenon. Perhaps this is a task for philosophers.
- 22.
M. Zirk-Sadowski, ‘Pozytywizm prawniczy a filozoficzna opozycja podmiotu i przedmiotu poznania’, op. cit., p. 83.
- 23.
See M. Zirk-Sadowski, ‘Transformation and Integration of Legal Cultures and Discourses – Poland’ in W. Sadurski et al. (eds.), Spreading Democracy and the Rule of Law? The Impact of EU Enlargement on the Rule of Law, Democracy and Constitutionalism in Post-Communist Legal Orders, Dordrecht 2006, pp. 310–311.
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Grabowski, A. (2013). Epilogue. In: Juristic Concept of the Validity of Statutory Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-27688-0_10
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