The nonpositivist concept of law
pp. 11-22
in: , Juristic concept of the validity of statutory law, Berlin, Springer, 2013Abstract
The second chapter of the study is devoted to preliminary analysis of the nonpositivist concept of law, proposed by Ralf Dreier and Robert Alexy in the late 1980s of the last century. For this purpose, we present the historical origins of German nonpositivism, with a particular emphasis on the role of "Radbruch's formula" developed during the post-war Naturrechtsdiskussion. Subsequently, we discuss the nonpositivist definitions of law, formulated by Dreier and Alexy, in which they clearly and unambiguously rejected the famous positivist Separation Thesis. The undertaken comparison of the structure and the content of these definitions leads to the conclusion that Dreier's definition constitutes only a prudent modification of the positivist conception of law, while Alexy's definition definitely breaks with the latter. Finally, we present the criticism of the inclusion of the concept of legal validity into the very concept of law, which is characteristic for the nonpositivist conception of law. The unconvincing justification in favour of equating these two concepts makes it very difficult to analyse the issue of legal validity.