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(2013) Juristic concept of the validity of statutory law, Dordrecht, Springer.
The fourth chapter presents a multifaceted critical analysis of nonpositivist argumentation. It begins with a summary of the current state of jurisprudential discussion on Ralf Dreier's and Robert Alexy's conceptions. Afterwards, we undertake the identification and the necessary selection of the controversial points of the nonpositivist argumentation, which are then subjected to critical analysis—from the basic objections to the philosophical and jurisprudential foundations of the nonpositivist conception of law, to more specific ones, related to the nonpositivist analytical argumentation as well as to normative and empirical argumentations. The critical analyses justify the view that Dreier's and Alexy's nonpositivist theory has not been satisfactorily justified on an analytical level; from the perspective of normative argumentation, the nonpositivist conception seems possible (but no longer necessary) to accept; yet, in the empirical context, this conception seems worth recommending, mainly due to the requirement for the practical utility of scientific theories—the nonpositivist conceptual instrumentation has a clear advantage over traditional legal positivism, especially in the description and analysis of the judicial application of law.
Publication details
DOI: 10.1007/978-3-642-27688-0_4
Full citation:
Grabowski, A. (2013). Critique of nonpositivist argumentation, in Juristic concept of the validity of statutory law, Dordrecht, Springer, pp. 61-191.
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