Contemporary Perspectives in the Philosophy of Law: Robert Alexy (I)

Abstract

This essay aims to examine certain aspects of Robert Alexy’s conception of the philosophy of law, based on his view about the “nature of legal philosophy”. With regard to the employed research method, the approach is a hermeneutic one, meaning that it closely follows one of Alexy’s articles. The theoretical framework is based on the following elements: the question of the nature of legal philosophy connects two problems (the general nature of philosophy and the special character of “legal philosophy”); reflexivity as the main trait for the concept of philosophy; philosophy as general and systematic reflection about what there is (metaphysics qua ontology), what ought to be done or is good (ethics), and how knowledge about both is possible (epistemology);  three dimensions of philosophy (critical, analytic, synthetic or holistic); four theses (1.legal philosophy is not confined to certain special problems connected with law; 2. there are specific problems of legal philosophy;3. there is a special relation between legal philosophy and other provinces of practical philosophy;4. legal philosophy can be successful only if it comes up to the level not only of one or two of these theses but to that of all three). As a result, from Alexy’s point of view the character of legal philosophy is determined by the choice between the comprehensive ideal (thesis 4) and the restrictive maxim (a thesis contradictory to thesis 4) much more radically than by the choice between legal positivism and nonpositivism.