The Concept of Law: A Methodological Approach to Alexy?s Theory

PAULA GAIDO

Buenos Aires

Congreso; Grundrechte, Diskurs und praktische Vernunft. Die Rechtstheorie Robert Alexys; 2008

Deutscher Akademischer Austauschdienst y Universidad de Buenos Aires

In this paper I try to make clear the idea that Robert Alexy has in mind when he says that the purpose of the philosophy of law is to give an explanation of the nature of law. In the context of his theory a question about the nature of law is a question about its essential properties, that is, about its ne­cessary properties. The task that I considered central, therefore, was to identify how Alexy understands the idea of necessity. The first thing I detected when facing this task was the ambiguous nature of the notion of what is necessary in his theory. This conducts Alexy to use the expression ?concept of law? in an ambiguous manner, making difficult to identify which the purpose of the philosophy of law for him really is. I suggested in my paper that if we realize that Alexy uses the expression the ?concept of law? in two different senses: as ?current concept of law? and as ?correct concept of law?, we could better identify which is the theoretical enterprise with which Alexy is really committed. Finally, I noticed a further contradiction in his explanation of the nature of law. He maintains that: (i) the study of law may be approached from different perspectives, (ii) from the existence of different perspectives, it is possible to construe the exis­ten­ce of different concepts of law and (iii) it is from the perspective of the participants of the legal practice that the true nature of law may be explained. I pointed out that (iii) is contradictory with the thesis that Alexy affirms which says that the correct concept of law is a regulatory idea underlying the conventions that support the different current concepts of law. What I stressed was that even though it were possible to understand the preference for one of the current concepts of law, what cannot be understood is in what sense the true nature of law may only be apprehended from one perspective.