Legal Systems, Rules, and Morality: Exploring Key Concepts
1. What is a Royalty-Free Concept of Validity?
It is a legal concept that does not include the concept of validity.
2. What is a Concept of Law Not Without Validity?
It is a legal concept that does include the concept of validity.
3. What is a Legal System Seen as a System of Rules?
A legal system, viewed as a system of rules, encompasses the outcomes and products of rule-making processes, regardless of their characteristics. This perspective focuses on the external aspects of the legal system.
4. What is a Legal System Seen as a Process?
A legal system, viewed as a process, is a system of actions based on and guided by rules. Through this process, rules are promulgated, justified, interpreted, applied, and enforced. This perspective focuses on the internal workings of the legal system.
5. What is the Viewer’s Perspective?
The viewer’s perspective is not concerned with the right decision within a specific legal system, but rather with how decisions are actually made within that system.
6. What is the Participant’s Perspective?
The participant’s perspective involves engaging in arguments within a legal system about what is ordered, prohibited, permitted, or authorized by that system.
7. What is a Classifying Connection?
A classifying connection argues that rules or systems of rules not meeting a certain moral standard are not, conceptually or politically, legal rules or legal systems.
8. What is a Qualifying Connection?
A qualifying connection argues that legal rules or systems not meeting certain moral criteria can still be legal rules or systems, but are legally deficient.
9. Robert Alexy’s Three Arguments
Robert Alexy’s concept of law is justified by three arguments:
- Correction
- Injustice
- Principles
10. The Argument of Correction
This argument states that both individual judicial decisions and legal systems as a whole necessarily claim correctness.
11. The Argument of Injustice
This argument is essentially the classifying connection thesis. It can apply to individual rules or entire legal systems.
12. The Argument of Principles
This argument reflects daily legal life. It stems from an awareness of legal methodology, where positivists and non-positivists find common ground.
13. Eight Positivist Arguments
Eight arguments are used by positivists regarding injustice as a strategy to include or exclude Robert Alexy’s third ingredient:
- Linguistic
- Clarity
- Effectiveness
- Legal Certainty
- Relativism
- Democracy
- Futility
- Honesty
14. Explanation of Each Argument
Linguistic Argument
Including moral elements, as required by the injustice argument, leads to a non-functional linguistic stipulation.
Argument of Clarity
- Only by excluding moral elements can conflicts between law and morality be clearly identified.
Argument of Effectiveness
- A non-positivist concept of law is ineffective against legal injustice.
- It risks uncritically legitimizing legal injustice.
Argument of Legal Certainty
- Including morality threatens legal certainty.
Argument of Relativism
- Distinguishing between extreme and non-extreme injustice is difficult, and judgments about non-extreme injustice lack rational or objective basis.
Argument of Democracy
- Judges invoking justice might overrule democratically legitimized legislation.
Argument of Futility
- Legal injustice can be addressed without denying legal status.
Argument of Honesty
- In criminal law, a positivist concept upholds the principle of “Nulla poena sine lege” (no penalty without a law).
15. Arguments Strengthening Alexy’s Position
- Effectiveness
- Another unspecified argument
16. The Irradiation of Injustice
The irradiation thesis states that the lack of basic substantive legal standards in a legal system causes all typical system standards to lack legal status.
17. The Collapse of a Legal System
- A legal system loses its legal status when it is generally extremely unjust.
- An isolated standard loses its legal status only if it is extremely unjust.
18. The Theory of Incorporation
Every legal system necessarily contains minimally developed moral principles.
19. Strong Connection Between Law and Morality
There is a strong necessary connection between law and proper morality.
20. Weak Connection Between Law and Morality
There is a necessary relationship between law and a morality.
21. The Thesis of Correction
This thesis results from applying the correctness argument within the framework of principles.