A Critique of Alexy’s Claim to Correctness

• Date: 01 June 2020
• DOI: http://doi.org/10.1111/raju.12276
• Published date: 01 June 2020

© (2020) John Wiley & Sons Ltd.

Ratio Juris. Vol. 33 No. 2 June 2020 (124–133)

A Critique of Alexy’s Claim

toCorrectness

BRIAN H. BIX*

Abstract. This article offers an overview of the difficulties in Robert Alexy’s idea of law’s “claim

to correctness.” The inquiry takes us deep into the nature of simple communication, back out to

what it means to have a theory about the nature of law, and also in the direction of wondering

about the interaction of legal theory and practical reasoning—reasoning about how we should

best act. The article offers reasons to question whether law in fact makes claims, at least in any

straightforward sense. Even if one brackets that matter, there are reasons to raise doubts about

what is in fact implicit in the act of lawmaking. At one level, an act of lawmaking does implicitly

assert the authority to act in that way. Whether it also implies that the content of the action is

morally good, or at least not clearly morally bad, is, at a minimum, a harder question.

1. Does Law Claim?

Robert Alexy’s work has been significant and influential—and controversial—in an

impressively wide range of fields, across disciplines and jurisdictions. This article

will focus on one small corner of his work: Alexy’s discussions regarding what he

calls law’s claim to correctness. One can divide the issue roughly into three parts:

(1) what it means for the law to claim anything, (2) whether the law claims “correct-

ness,” and (3) what follows if it does. I will take on each set of issues, in turn, before

concluding.

The assertion that law claims correctness might sound strange, especially to those

not already deeply into jurisprudential discussions. After all, “the law” (understood

as a particular legal system) is not a person, so “the law claims X” may, to some ears,

sound as absurd as saying “the law ate steak for dinner last night.” In the words of

Neil MacCormick (2007b, 59): “To say law claims anything, meaning this literally, is a

category mistake. There is no entity ‘law’ which is capable of performing speech acts

of this sort” (footnote omitted). “Law” and legal systems are abstract entities rather

than individuals, so (the argument goes) one should not ascribe claims, intentions,

or purposes to them.

One standard response is to clarify that talk of law’s claims is just a shorthand for

the claims legal officials make on behalf of their legal system. Perhaps that is what

Joseph Raz (1994, 199) was getting at when he stated: “The claims the law makes for

* I am grateful for the comments and suggestions of Robert Alexy and the other participants at

the conference The Law in Question of Its Promise, held at Tallinn University.