On the Connection between Law and Morality: Some Doubts about Robert Alexy’s View

• DOI: http://doi.org/10.1111/raju.12272
• Date: 01 March 2020
• Published date: 01 March 2020
• Author: Peter Koller

© 2020 The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

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Ratio Juris. Vol. 33 No. 1 March 2020 (24–34)

On the Connection between Law

and Morality: Some Doubts

about Robert Alexy’s View

PETER KOLLER

Abstract. The paper aims at a critical discussion of Alexy’s conception of the relationship be-

tween law and morality, which is known to insist on their necessary connection. After a brief

recapitulation of this conception, the author scrutinizes three of its essential elements: the thesis

of the dual nature of law, the argument from law’s claim to moral correctness, and the idea of

an objective morality. Finally, he sketches his own position which, in some respects, resembles

Alexy’s view, but also differs from it in certain relevant points.

1. Introduction

Whenever I read Robert Alexy’s writings, I am so fascinated by their concise style,

lucid structure, and forceful argument that I am greatly inclined to believe almost

everything that he asserts. In fact, this inclination has grown over the time, as I saw

his contributions to his primary fields—legal reasoning, constitutional rights, and the

concept of law—not only develop step by step into highly sophisticated conceptions,

but also come together into a comprehensive and cohesive theory of law, which, in my

view, is unparalleled in contemporary legal thinking, apart from Ronald Dworkin’s

work. I should not conceal, however, that my sympathy for Alexy’s work has also

been nourished by the fact that its outcomes widely fit with my own convictions,

particularly the commitment to the tradition of enlightened thinking as well as to a

constitutional political order that incorporates human rights, social justice, delibera-

tive democracy, and rational discourse (see Alexy 1978, 1985, 1992, 1995, 1996, 2003a,

2003b, 2007b, 2018; cf. Klatt 2012b). Nevertheless, after critical reflection on Alexy’s

arguments, I am often afflicted by doubts about some of his points, since I cannot

help but think that his picture of law is somewhat too good to be true.

I would like to take the opportunity of the present workshop to raise some doubts

about Alexy’s view of the connection between law and morality. Since this view has

already been extensively discussed by other scholars who have expressed similar

doubts, I am in the unfortunate situation of dealing with questions which may ap-

pear to have been settled before (see, e.g., Klatt 2012a; Pavlakos 2007a). Yet, I hope

that my considerations will not be completely superfluous, for it seems to me that

my doubts somehow differ from the bulk of critical comments on Alexy’s theory in

the literature that I know, because I intend merely to modify some of his theses rather