scholarly journals The Ideal Dimension of Law

2021 ◽  
pp. 35-61
Author(s):  
Robert Alexy
Keyword(s):  
Human Rights ◽  
Critical Dimension ◽  
Legal Argumentation ◽  
Main Theme ◽  
Constitutional Rights ◽  
Dual Nature ◽  
John Finnis ◽  
Special Case ◽  
Determine Relation ◽  
The Ideal

The main theme of the article is ideal dimension of law. Author argue for a dual nature thesis – which contends that law necessarily comprises both a real or factual dimension and an ideal or critical dimension – and demonstrates how the ideal dimension (which refers primarily to moral correctness) implies the truth of non-positivism. The key provisions of the conception represented in article are substantiated in a polemic with other well-known representative of non-positivism – John Finnis. Particular attention is paid to determine relation between the real and ideal dimensions of law, which involves answering five questions. First, is there an outermost border of law? Second, is legal argumentation based exclusively on authoritative reasons or does it also include non-authoritative reasons? Third, what is the relation between human rights and legal systems? Forth, is democracy to be understood exclusively as a decision procedure or also as a form of discourse? Fifth, do legal system comprise only rules expressing a real “ought” or also principles expressing an “ideal ought”? These five questions are answered by the following five theses: the first with the Radbruch formula; he second with the special case thesis; the third with the thesis that constitutional rights are to be understood as attempts to positivize human rights; the fourth with the deliberative model of democracy; and the fifth with principles theory. All five theses turn on the same point: the claim to correctness.

Introduction

2021 ◽  
pp. 1-4
Author(s):  
Robert Alexy
Keyword(s):  
Human Rights ◽  
Legal Argumentation ◽  
Constitutional Rights ◽  
Dual Nature ◽  
Real Dimension ◽  
The Real ◽  
Main Thesis ◽  
Social Efficacy ◽  
The Ideal

This volume comprises three parts. The issue of Part I is the nature of law. The main thesis is that law has a dual nature. It comprises a real as well as an ideal dimension. The real dimension is defined by authoritative issuance and social efficacy, the ideal dimension by the claim to correctness, which includes a claim to justice. This connection of the real and the ideal dimension implies non-positivism. In Part II the connection between constitutional rights, human rights, and proportionality is taken up. The construction of constitutional rights as principles is to be found at the centre. The principles construction implies the necessity of proportionality analysis and, with this, the necessity of balancing. Balancing is defended against numerous critics as a form of rational legal argumentation. Part III concerns the relation between argumentation, correctness, and law.

The Ideal Dimension of Law

2021 ◽  
pp. 83-106
Author(s):  
Robert Alexy
Keyword(s):  
Human Rights ◽  
Critical Points ◽  
Moral Content ◽  
John Finnis ◽  
Special Case ◽  
The Ideal

Alexy’s thesis that law has an ideal dimension is essentially based on the argument that law necessarily raises a claim to correctness that includes a claim to moral correctness. John Finnis has contested the necessity of this connection between law and a claim with moral content. One implication of the claim to correctness is the Radbruch Formula, which says that extreme injustice is no law. Finnis also criticizes this formula. In this chapter arguments against Finnis’s two critical points are presented. This is further elaborated into a system of the institutionalization of reason that comprises not only the Radbruch Formula but also the special case thesis, human rights, democracy, and principles theory.

scholarly journals THE MANIFESTATION OF THE RECHTSIDEE OF PANCASILA IN REGULATING THE CONSTITUTIONAL RIGHTS IN INDONESIA

2019 ◽  
Vol 4 (2) ◽  
Author(s):  
A.Ahsin Thohari
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
The State ◽  
Constitutional Rights ◽  
Union Republic ◽  
Fundamental State ◽  
Almost All ◽  
The Ideal

Abstract: Pancasila is the ideal of the state (staatsidee). It also serves as legal ideal (rechtsidee), fundamental of philosophy (philosofische grondslag), fundamental state norm (staatsfundamentalnorm), and view of life (weltanschauung). It is a flexible ideology that can be drawn, pressed, and broaden to cover almost all circumstances. The perspective and mindset forming the constitution concerning human rights, and citizen constitutional rights had changed due to the changes in worldview attitudes, internationalism, and cosmopolitanism about human and constitutional rights. The constitution in Indonesia had changed several times. However, the provision of the civil rights in the Indonesian constitutions or known as constitutional rights were not eliminated in the 1945 Constitution (since august 18th 1945), the 1949 Union Republic of Indonesia Constitution, the 1950 Temporary Constitution, the 1945 constitution (after the President Decree in July 5th,1959) and 1945 constitution after amendment. Pancasila, also known as five principles, has the function as the bedrock of Indonesia. However, as a philosophical principle, Pancasila can interpret in myriad perspective, potentially used for multiple purposes. Abstrak: Pancasila sebagai cita negara (staatsidee). Pancasila yang juga berfungsi sebagai cita hukum (rechtsidee), dasar filsafat (philosofische grondslag), norma fundamental negara (staatsfundamentalnorm), dan pandangan hidup (weltanschauung). Pancasila adalah ideologi yang bersifat fleksibel yang dapat ditarik, ditekan, dan dilebarkan untuk mencakup hampir semua keadaan. Cara pandang dan pola pikir pembentuk Undang-Undang Dasar (UUD) terhadap Hak Asasi Manusia, konstitusi, dan hak-hak konstitusional warga negara mengalami perubahan yang diakibatkan oleh perubahan sikap-sikap pandangan dunia, internasionalisme dan kosmopolitanisme tentang HAM dan hak konstitusional. Konstitusi di Indonesia telah mengalami beberapa kali perubahan, namun ketentuan-ketentuan tentang hak-hak warga negara dalam konstitusi-konstitusi Indonesia atau yang lebih dikenal dengan hak konstitusional tidak pernah hilang, baik dalam UUD 1945 yang berlaku mulai 18 Agustus 1945, Konstitusi RIS 1949, UUDS 1950, UUD 1945 setelah Dekrit Presiden tanggal 5 Juli 1959, dan UUD 1945 setelah Perubahan. Pancasila, yang juga dikenal sebagai lima prinsip, berfungsi sebagai landasan negara Indonesia. Namun, sebagai prinsip filosofis, pancasila dapat ditafsikan ke berbagai perspektif yang dapat digunakan untuk berbagai tujuan. Kata Kunci: Cita Hukum (Rechtsidee), Pancasila, Hak Konstitusional

The Existence of Human Rights

2021 ◽  
pp. 142-153
Author(s):  
Robert Alexy
Keyword(s):  
Human Rights ◽  
Moral Character ◽  
Moral Rights ◽  
Constitutional Rights ◽  
Special Significance ◽  
Dual Nature ◽  
Real Dimension ◽  
Positive Law

Human rights are first, universal, second, fundamental, third, abstract, and fourth, moral rights that, fifth, take priority over all other norms. For the question of the existence of human rights, the fourth defining element, the moral character of human rights, is of special significance. The purely moral character distinguishes human rights from constitutional rights. Constitutional rights are positive law at the level of the constitution. This, however, is not to say that no connection exists between human rights and constitutional rights. On the contrary, constitutional rights have to be defined as rights that have been recorded in a constitution with the intention of transforming human rights into positive law. In this respect, constitutional rights have, along with their real dimension, an ideal dimension, that is, they have a dual nature. This implies that the problem of the existence of human rights is essential for constitutional rights, too. Now, human rights exist if they are justifiable. Eight justifications of human rights are considered: the religious, the biological, the intuitive, the consensual, the instrumental, the cultural, the explicative, and the existential. The result of this analysis is an explicative-existential justification, which, while not a perfect justification, is a good justification.

The Dual Nature of Law

2021 ◽  
pp. 36-50
Author(s):  
Robert Alexy
Keyword(s):  
Essential Feature ◽  
Legal Positivism ◽  
Moral Rights ◽  
Legal Argumentation ◽  
Constitutional Rights ◽  
Dual Nature ◽  
Constitutional Review ◽  
The People ◽  
Majority Principle ◽  
Positive Rights

The argument of this chapter 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.

Law's Ideal Dimension

2021 ◽  
Author(s):  
Robert Alexy
Keyword(s):  
Discourse Theory ◽  
Legal Philosophy ◽  
Necessary Condition ◽  
Legal Argumentation ◽  
Constitutional Rights ◽  
Legal Certainty ◽  
Dual Nature ◽  
Real Dimension ◽  
The Third ◽  
Social Efficacy

Law in general, including constitutional rights and legal argumentation, has a dual nature. This is the underlying thesis of this collection of twenty-one chapters devoted to legal philosophy and constitutional law. Law connects a real dimension, defined by authoritative issuance and social efficacy, with an ideal dimension, defined by the claim to correctness, which essentially includes a claim to justice. The chapters of the first part of the book establish on this basis a non-positivistic concept of law. In the second part, the concept of constitutional rights is connected with proportionality analysis, explicated by principles theory and understood as a necessary condition of the rationality of the application of constitutional rights. In the third part, it is shown that rationality is possible in law because rational legal argumentation is possible. Here the basis is discourse theory. The final result is a system that brings the formal idea of legal certainty together with the substantive idea of justice.

Involuntary Circumcision of Males in Illegal Initiation Schools in South Africa: A Violation of African Customary Human Rights?

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Porsche Makama
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Cultural Beliefs ◽  
Young Men ◽  
Cultural Tradition ◽  
Constitutional Rights ◽  
Topical Issue ◽  
Community Members ◽  
Human Right ◽  
Traditional Practice

The incidence of deaths associated with the practice of forced and botched circumcisions at initiation schools has become a topical issue in South Africa. In recent times, the number of deaths and injuries among initiates has risen at an alarming rate, most of them occurring at illegal initiation schools. The continuous rise in the number of injuries among initiates at these schools has elicited mixed reactions among community members, some referring to it as genocide in the case of fatalities and calling for its abandonment, while others argue that this traditional practice should be allowed to continue. The majority of young men who go to initiation schools do not make the decision on their own, nor do they have a choice in the matter. Instead they are compelled by parents or guardians, influenced by friends, and also coerced by others in the community who insist that they have to ‘go to the mountain’, as initiation schools are generally referred to in South Africa. It has been argued by those against circumcision that this practice infringes constitutional rights and contravenes the Children’s Act 38 of 2005. There have been numerous instances where young and even mature males have been taken from the streets, or even from the comfort of their homes, and forced into circumcision camps with or without their consent. This begs the question whether the continued practice of a cultural tradition that violates the fundamental human right and freedom to choose religious and cultural beliefs is justifiable.

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