The Special Case Thesis and the Dual Nature of Law

• Author: Robert Alexy
• DOI: http://doi.org/10.1111/raju.12215
• Date: 01 September 2018
• Published date: 01 September 2018

© 2018 The Author. Ratio Juris © 2018 John Wiley & Sons Ltd.

* I should like to thank Stanley L. Paulson for suggestions and advice on matters of English style.

Ratio Juris. Vol. 31 No. 3 September 2018 (254–259)

The Special Case Thesis

and the Dual Nature of Law

ROBERT AL EXY*

Abstract: In th is article, I take up two arguments in favor of the discu rsive model

of legal argumentation: the cla im to correctness a rgument and the dual natur e

thesis. The argume nt of correctness implies the dual n ature thesis, and the dual

nature thesis implies a nonpo sitivistic concept of law. The nonpositivistic concept

of law comprises five ideas. One of them is the speci al case thesis. The special ca se

thesis says that positivistic eleme nts, that is, statutes, precedents, and prevailing

doctrines, are neces sary for law in order to achieve legal certai nty. Without this,

law would not be as perfect as it could possibly be. But it says, at the same time,

that this alone would not be enough to ful fill the claim to correctnes s. The claim

to correctness refers not on ly to the real dimension of law, defined by statutes,

precedents, and prevailing doct rines, but also to its ideal dimension, defi ned,

first and foremost, by justice. The speci al case thesis is my oldest thesis. It has

remained an ess ential element of my system over the years. Its connection with

four other theses—t he Radbruch formula, the human r ights thesis, the idea of

deliberative democracy, and principles theory—does not change t his at all. On

the contrary, this connect ion has lent greater strength to the special ca se thesis.

There are five models of legal argu mentation: first, the deductive model; second,

the decision model; third, the her meneutic model; fourth, the coherence model; and,

fifth, the di scursive model. More than twenty years ago, I argued t hat each of the

first four models contain s, to be sure, interesting points, but that none of them is

able to provide an adequate account of the rationality of legal argume ntation (Alexy,

1993, 166–70). I shall not repeat this argume nt here. Rather, I will confine myself to

two arguments in favor of the disc ursive model: the claim to correctness argume nt

and the dual nature the sis.

I. The Claim to Cor rectness

The claim to correc tness is the Arch imedean point of the disc ursive model. The

claim to correct ness argument says that law necessari ly raises a claim to correctne ss.