Alexy (The Piggy-Backer)

Question 1

What does Alexy do actually?

Answer 1

• He turned Radbruch’s formula into a “theory of law” (different from instructions to judges)
• Adds a ‘claim of correctness’ which ensures that norms that fail are “defective” (but still legal)

Question 2

What is a “claim of correctness”?

Answer 2

• To be legal, an individual norm/system of norms must “claim correctness”
• Nature of law cannot be understood if morality is not brought into the conceptual analysis as an integral part of law

Question 3

What is the 3 part version of Alexy’s theory?

Answer 3

Law is a system of norms that
1) formulates a claim to correctness,

2) consists of totality of the norms (pertain to a generally effective Constitution w/o being extremely unjust), + (promulgated under Constitution that possess a minimum of social efficacy (or probability), and not extremely unfair)
3) the normative principles and arguments on which the application of legal procedure rests, and/or has to rest in order to comply with the claim to correctness [tbc]

Question 4

What does Alexy consider to be his concept of law?

Answer 4

The correct concept of law is that which relates three elements:
1. legality in accordance with the legal system in force

2. social efficacy
3. material correction (nature of law cannot be understood if morality is not brought into the conceptual analysis as an integral part of law)

Question 5

Which jurist is Alexy similar to?

Answer 5

• Raz. However Raz says that even if there is no claim to correctness, the norm will still be valid and legal.
• Alexy would say that the norm is not invalid, but defective. (Qualificatory Offence but not a Classificatory Offence)