The Claim to Correctness, Rights, and the Ideal Dimension of Law: A Short Reply

Published date01 September 2020
DOIhttp://doi.org/10.1111/raju.12293
Date01 September 2020
AuthorRobert Alexy
© (2020) John Wiley & Sons Ltd.
Ratio Juris. Vol. 33 No. 3 September 2020 (283–290)
The Claim to Correctness, Rights,
and the Ideal Dimension of Law:
A Short Reply
ROBERT ALEXY*
Abstract. These are the answers I gave to Brian Bix, Peter Koller, Ralf Posher, Torben Spaak,
Timothy Endicott, and Jan Sieckmann at the end of a splendid conference day in 2018. The cri-
tique given to me concerned important aspects of three main themes in my work: the claim to
correctness, human and constitutional rights, and the ideal dimension of law. In the last decades
I have attempted to connect these themes systematically. The result is the idea of democratic
constitutionalism as an institutionalization of practical reason.
It was a great pleasure for me to hear the lectures and to follow the discussion, and
it is an even greater pleasure for me to be in a position to offer some replies. My an-
swers are reactions to what I heard during this long and wonderful day, October 29,
2018. And I do mean “heard,” that is, I have not read these papers before or during
the day and not later either. All remarks are elements of a very long one-day dis-
course. And of course I can only offer some replies, for I have to address very elab-
orate presentations. Were I to try to give a suitably elaborated answer to each, we
would be here well into the night. That will not happen. I am following the sequence
of the presentations in my replies.
That is to say, I shall begin with Brian Bix, and, naturally, only on some points.
Brian, you said that the highest courts can or may be wrong. Naturally they can, but
being wrong is compatible with raising a claim to correctness, and here the story
becomes interesting. A mistaken decision of a highest court can be corrected. There
exists the possibility of overruling. The claim to correctness renders a mistaken deci-
sion of a highest court legally defective, even if the defectiveness is based on moral
reasons. The decision is not only morally defective, it is also legally defective. And for
the future of the decisions this is a very important thing. It makes a correction legally
necessary.
Mistaken theories in physics have often been corrected by later generations.
Mistaken decisions of courts can be corrected by later court decisions. But that is
only a small point. My most important point concerns your remark on performative
* I should like to thank Carsten Martin Wulff for the preparation of a transcription from the
video and Stanley L. Paulson for assistance and advice on matters of English style in elaborating
the final version of the text.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT