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The Argument from Injustice

A Reply to Legal Positivism

Robert Alexy author Stanley L Paulson translator Bonnie L Paulson translator

Format:Hardback

Publisher:Oxford University Press

Published:19th Dec '02

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The Argument from Injustice cover

This book challenges the notion of legal positivism by exploring the essential connections between law and morality, ultimately advocating for a nonpositivistic legal framework.

In The Argument from Injustice, the author delves into the intricate relationship between law and morality, challenging the traditional legal positivist perspective that advocates for their separation. By scrutinizing the conceptual and normative connections between these two realms, the book presents a compelling case for the integration of moral elements within the legal framework. The author posits that while the conceptual argument alone may not sufficiently bridge the gap between law and morality, and the normative argument lacks a comprehensive view of law's nature, their combination offers a robust foundation for a nonpositivistic understanding of law.

Central to The Argument from Injustice is the exploration of five key distinctions that illuminate the various presuppositions influencing the discourse on law and morality. Through this lens, the author illustrates that while some perspectives may align strictly with legal positivism, there exists a necessary perspective that inherently requires a nonpositivistic approach. This perspective is that of an active participant within the legal system, who seeks to ascertain the correct legal answer amidst the complexities of law.

The book further reinforces its arguments by referencing Gustav Radbruch's formula, which asserts that extreme injustice cannot be considered law, alongside the judge's role in weighing principles during legal decision-making. Ultimately, The Argument from Injustice aims to reconcile classical elements of legal positivism—such as authoritative issuance and social efficacy—with the essential goal of ensuring the correctness of legal content, thereby enriching the understanding of law's moral dimensions.

... a valuable addition to the English literature ... as a refreshingly balanced view on the virtues and limitations of the positivist project from beyond the trenches of the Anglo-American debate, it should be at or near the top of any reading list on key issues in contemporary jurisprudence. * Legal Studies *
It is a delight to see Robert Alexy's Begriff und Geltung des Rechts in English translation. All the more so because the remarkable translation skills of Bonnie Litschewski Paulson and Stanley L. Paulson have contributed to a sharpening of many of the arguments in the book...it is by far the most mature statement of Alexy's ideas on the concept of law while serving very well as a retrospective introduction to the philosophical problems in response to which he developed the discourse theory of law in the first place...The Argument from Injustice is a major contribution to the non-positivist literature. It will become a standard reference for future research in normative jurisprudence. * George Pavlakos, The Modern Law Review 67 (2), 2004 *

ISBN: 9780198259879

Dimensions: 224mm x 144mm x 17mm

Weight: 366g

160 pages