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The Dual Nature of Law
Author(s) -
ALEXY ROBERT
Publication year - 2010
Publication title -
ratio juris
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.344
H-Index - 10
eISSN - 1467-9337
pISSN - 0952-1917
DOI - 10.1111/j.1467-9337.2010.00449.x
Subject(s) - argumentation theory , law , ideal (ethics) , political science , positivism , dual (grammatical number) , argument (complex analysis) , relation (database) , democracy , positive law , fundamental rights , human rights , law and economics , sociology , epistemology , philosophy , public law , politics , private law , computer science , black letter law , linguistics , biochemistry , chemistry , database
The argument of this article is that the dual‐nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision‐making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation to both authoritative and non‐authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law.