The Nonpositivist Concept of Law

  • Andrzej Grabowski
Chapter

Abstract

The second chapter of the study is devoted to preliminary analysis of the nonpositivist concept of law, proposed by Ralf Dreier and Robert Alexy in the late 1980s of the last century. For this purpose, we present the historical origins of German nonpositivism, with a particular emphasis on the role of “Radbruch’s formula” developed during the post-war Naturrechtsdiskussion. Subsequently, we discuss the nonpositivist definitions of law, formulated by Dreier and Alexy, in which they clearly and unambiguously rejected the famous positivist Separation Thesis. The undertaken comparison of the structure and the content of these definitions leads to the conclusion that Dreier’s definition constitutes only a prudent modification of the positivist conception of law, while Alexy’s definition definitely breaks with the latter. Finally, we present the criticism of the inclusion of the concept of legal validity into the very concept of law, which is characteristic for the nonpositivist conception of law. The unconvincing justification in favour of equating these two concepts makes it very difficult to analyse the issue of legal validity.

Keywords

Moral Obligation Legal Philosophy Legal Positivism Legal Validity Prima Facie Obligation 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Copyright information

© Springer-Verlag Berlin Heidelberg 2013

Authors and Affiliations

  • Andrzej Grabowski
    • 1
  1. 1.Faculty of Law and Administration, Department of Legal TheoryJagiellonian UniversityKrakówPoland

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