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.

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284 Robert Alexy

contradiction. Performative contradiction is the main element of my claim to correct-

ness thesis. You quoted my sentence, “X is a sovereign, federal, and unjust republic,”
and I think you are inclined to agree a bit that it is somehow absurd. And with this,
we arrive at the concept of absurdity.
Absurdity stems or results from a contradiction. This is one of the oldest forms of
philosophical argument. In the case of the sentence “X is a sovereign, federal, and un-
just republic,” employed by me as an argument for the claim to correctness, we have
a contradiction between what is explicitly said and what is implicitly presupposed. Is
this an argument? Brian Bix says that it concerns only language, not morality or law. I
like this argument, for it is a decisive point for me that it concerns, in a certain sense,
only language. The contradiction stems from rules that are pragmatic rules of speech
acts necessarily presupposed in speaking. But, and this is a wonderful thing, lan-
guage here necessarily refers to morality. In the natural sciences, say, physics, speech
acts are also performed. And they raise a claim to truth. In law a claim is raised that I
call the “claim to correctness,” which also includes normative elements. This is a fun-
damental difference from the natural sciences. That is my point. John Finnis, whom
you quoted or mentioned, said in his answer to my critique that I make conceptual
claims. I do. Now, we can have different concepts of what is conceptual. I think that
it comprises semantic as well as pragmatic connections. Pragmatic connections con-
cern speech acts qua acts, not only propositions. That is the point. But they neverthe-
less concern linguistic claims. With this, we have a concept of conceptual claims that
includes pragmatic contradictions.
I come to my last point, a funny point. It concerns the relation between the claim to
correctness and the distinction between positivism and non-positivism. In my theory,
the claim to correctness is the main source of non-positivism. It is the Archimedean
point of my system. Raz is a positivist. One could even say that he is an exclusive pos-
itivist. Nevertheless, he agrees with me that law necessarily, not only contingently,
raises a claim. But he says that law’s claim is not a claim which leads to morality.
It is only a claim to adequacy or efficiency as connected with all human activities.
Robbery, the work of a group of bandits, is a human activity and the bandits claim
to work efficiently or successfully. They claim to be good robbers, acquiring a lot of
money with as little work and risk as possible. Then they are successful. And Raz
says that in a similar way as the bandits raise a claim to adequacy or efficiency, the
law raises such a claim. But in both cases this claim has nothing to do with morality.
My answer to this—and at the same time to Brian Bix—is that we have to dis-
tinguish two formal structures of the claim to correctness. In the bandit system the
claim has a structure to the effect that what we do is correct for us. In the Nazi system
the claim was that what the Nazis did was correct for the Germans. In contrast to
this, the claim to truth is a claim that what is claimed is correct for all. To be sure,
in the Nazi period some persons had the idea of German mathematics or German
physics—perfect nonsense. The claim raised in the sciences is a universal claim. The
claim has the structure that what is said is true for all. And now, law’s claim to cor-
rectness is a claim about what is correct for all, even if not for all per se—I will come
back to this point—but only for all from the point of view of the legal system in which
the decision is taken. But this is enough for its universal structure.
Let me add a short remark on Finnis and the claim to correctness. Raz, as a positiv-
ist, connects law with a necessarily raised claim. Finnis, as a non-positivist, says that
law does not necessarily raise a claim to correctness. He gives the claim a contingent

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 A Short Reply 285

character. You see how interesting the discussion is. My thesis is—and I cannot elabo-
rate it in greater detail this evening—that it is a necessarily raised claim with a moral
content. Brian, thank you very much for your presentation.
The next lecture was presented by Peter Koller. He has made many points. Again,
I shall select only some. The first concerns the question of what exactly the officials of
a legal system claim. You say that an official does not claim that a legal order or the
legal system as a whole is correct, that is, that all decisions by all judges are correct.
In short, they do not claim that decisions they have not taken are correct. They claim
that their decision is correct, the decision they took, and they must naturally agree
with the thesis that all judges must raise this claim. There is a distinction between, on
the one hand, one judge’s claiming for all judges that their decisions are correct, and,
on the other, simply saying that they all raise this claim on behalf of their decisions.
And one could add that there are unfortunately some judges who are not very suc-
cessful in fulfilling the claim. The thesis that all judges raise a claim to correctness for
all decisions of all judges—the aggregation thesis—must, indeed, be rejected.
Peter Koller’s next point concerns the distinction between objective correctness
and subjective correctness. One of the main challenges of the claim to correctness
thesis is the Mackie problem. In Ethics: Inventing Right and Wrong, J. L. Mackie uses a
wonderful expression: “error theory.” He says that in moral argumentation we raise
a “claim to objectivity,” but this is an illusion, for there exists no objective moral
correctness. Indeed, the error theory or illusion theory would be correct if the me-
taethical sentence were correct that there does not exist such a thing as moral cor-
rectness. If emotivists like Stevenson, radical non-cognitivists, or absolute relativists
and others of their persuasion were right, then it would be an illusion to raise a
claim to correctness. In the first part of the second edition of his Pure Theory of Law,
Hans Kelsen comes quite close to this when he says that the legal order of totalitarian
states can empower the government to confine people for political, religious, or racial
reasons in concentration camps, even kill them there, notwithstanding the fact that
some people severely condemn this for moral reasons. Now, some people like choc-
olate ice cream, some lemon ice cream. If the logic of this sentence were applicable to
concentration camps and genocide on the one hand, and human rights on the other,
then the claim to correctness would break down. This implies that adherents of the
claim to correctness thesis, in the present case I myself, have to show that at least in
some cases it makes sense to speak of objective moral correctness, that is, of moral
propositions which are correct, right, or true, even if there are other cases in which
there is more than just one right answer. In my life I have invested a lot of time in an
attempt to prove that human rights, perhaps also other moral matters such as certain
collective goods, are correct. And when a normative position like a human right is
correct, a corresponding normative proposition is correct. And a normative propo-
sition is correct if it can be justified. For just this reason, I connect the theory of law
with discourse theory. You speak about social acceptance. Mere social acceptance is
not enough. We need justifiability.
If you allow me, one last point: the multitude argument. I very often hear, Robert,
you make radically simple distinctions, but there is in the world a great multitude
of things: many conceptions of human rights, many conceptions of rationality, and
so on, and so forth. And you have said that we have a multitude of claims. I say
that we do, indeed, have some distinctions in this area, but one of the main aims of
science—and this is nearly the only point on which I agree with Niklas Luhmann—is

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the reduction of complexity. It is one of the highest priorities of science to reduce

complexity, not to enjoy it. Many scientists in the humanities nowadays enjoy com-
plexity. I suffer from complexity and try to reduce it, just as is done in the higher
levels of the natural sciences. That is my answer, Peter, to your wonderful paper.
The next step is the lecture by Ralf Poscher. It is a great pleasure for me that our
discussion now goes into a third round. Two days before travelling to Tallinn, I
­received a translation from Brazil. It concerns a discussion between Eugenio Bulygin
and me. We have had three rounds in the last twenty years about, my goodness,
one of the main themes here: the claim to correctness. And these three rounds, now
translated into Portuguese, will soon also be published in Spanish. I like such rounds,
for I like argumentation, and I like argumentation because I like truth. Again, I must
give a short answer. Ralf, you say that principles as ideal norms are unnecessary:
We do not need them. My reply is that we do need them. My argument is a kind of
a sequence argument. The sequence consists of three stages. The sequence begins
with the ideal “ought,” which can be expressed by “Oi p.” This is the first stage. Oi
p says that it is obligatory in an ideal sense that p. Why is this interesting? It is inter-
esting because it is possible that Oi p & Oi ¬ p. This formula says that it is obligatory
in an ideal sense that p and that it is obligatory in an ideal sense that ¬ p. With this,
it expresses a conflict of principles. That is the first stage of our sequence. Ralf, you
say that we can reconstruct this completely by means of optimization requirements.
Optimization requirements have the logical form Or Opt p. Or in this formula ex-
presses a real “ought,” that is, optimization requirements are rules. The step from the
first stage, where the ideal “ought” is to be found, to the second stage, where the real
obligation to optimize has its place, is necessary because optimization provides the
means of solving the norm conflict that is possible at the first stage. At the third stage
we find proportionality analysis as explicated by the Weight Formula, the mathemat-
ical reconstruction of the Law of Balancing, which in connection with the second law of
principles theory, the Law of Colliding Principles, leads to a concrete rule that expresses
the solution of the case: C → Q.
My argument in reply to the argument that we do not need principles as elements
of an ideal dimension, that is, that we do not need the first stage of the sequence, is
that when we speak of a collision of rights, we speak of a collision between two nor-
mative entities. That is my point. I shall give a simple example. If you have rented a
new flat and you want to hang things on the wall, then, if they have a certain weight,
you must drill holes into the wall, and if you drill holes into the wall you change the
wall. But there is no conflict between the drilling and the wall. If there is no conflict
between facts, the facts as such do not require the solution of a conflict. If you want
to transform causation into a conflict, you have to introduce a normative element.
Such an element appears when you say that the wall should remain as perfect as
possible, and the things you want to hang on the wall should hang there as securely
as possible. But these are two norms. Principles theory is an attempt to characterize
this conflict as clearly as possible as a conflict between two norms, and to introduce
the optimization requirement as necessary for its solution. But to introduce optimiza-
tion is already the second step. Therefore, only a construction referring to the first as
well as to the second stage can give us a full picture. Merely referring to optimization
requirements necessarily results in an incomplete picture. This corroborates my old
thesis that we can, on this basis, make a clear distinction between rules and princi-
ples. Naturally, rules differ, and principles differ, too. But the distinction between

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rules and principles is, as such, a categorical distinction. Differences inside the two
categories and the fact that principles are related to rules and rules to principles do
not warrant the claim that this distinction does not exist. That is my answer and I
thank you very much. I am happy, Ralf, to have had this third round with you.
Now I turn to Torben Spaak. My reply focusses on the relation between the real
and the ideal dimension. I very much like the list of eight stages you presented. At
the first stage we find the necessity of the claim to correctness; I think we can agree on
this point. At the second stage correctness is connected with satisfaction. But this can-
not be actual satisfaction. It can only be the claim to attempt to satisfy or approximate
the claim to correctness. Thus, many people claim that what they say is true, but the
claim to truth is not a guarantee of truth. The claim to correctness is not a guarantee
of correctness. That is my first remark.
You continue with the relation between the satisfaction of the claim to correct-
ness, anarchy, and positive law. Indeed, if we have no positive law, we have anarchy,
and if we have anarchy, the claim to correctness is not satisfied. I completely agree.
Naturally, this could be elaborated much further. But at this point I want only to in-
troduce a distinction that many have, at least implicitly, referred to.
We must distinguish between two claims to correctness found in law. This is dis-
tinction between first-order correctness and second-order correctness. First-order
correctness is pure moral correctness. If you refer only to justice and not to the insti-
tutionalization of law, you refer to first-order correctness. Then you have a wonderful
claim, an ideal claim, but this form of idealism leads to anarchy, civil war, and loss of
the advantages of coordination and cooperation. Therefore, the claim to correctness
in law, and this is the core or essence of law, refers to substantive moral correctness
as well as to institutional correctness. This implies that the claim to correctness com-
prises the correctness of positivity. This might be the reason why Jeremy Waldron
qualifies Kant as a positivist, for Kant, in paragraph 44 of his Metaphysics of Law and
Morals (1797), as well as in the Postscript to the second edition to the first part of this
book, the “Doctrine of Law” (1798), says that you have to follow the authority that
has power over you. But Kant has moral reasons for this, and if you read Kant more
precisely, the story turns out in a way completely different from Waldron’s interpre-
tation. But I do not wish to offer an interpretation of Kant here. Please excuse me.
Then you have gone on to say that Alexy only explicates, he does not analyze.
Robert Brandom, with his book Making It Explicit, serves as an example that moves
in the direction of what it means to make something explicit. I want to make only a
short remark, namely, that explication is the main method of philosophical analysis.
The time does not allow for more.
I shall now like to turn to Timothy Endicott. Timothy, I like your questions con-
cerning principles of interpretation very much. I will begin with a distinction. We
have to distinguish forms of interpretation and—here I shall use the terminology I
employed in my Theory of Legal Argumentation—rules of interpretation. The distinc-
tion between rules and forms is also applicable to general practical discourse. An
example of a form of interpretation is semantic interpretation, which refers to the
wording of a statute. With this, interpretation begins. Then we have intentional or ge-
netic interpretation, which refers to the will of the historical legislator. This is a good
point that can be made in interpretation. Then we have historical interpretation. It
concerns the history of legal regulation. Often it is a very bad form of interpretation,
but sometimes, in learning from history, one can use it. Then we have systematic

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interpretation. It refers to other norms of the legal system, first and foremost to norms
included in the constitution or to be found at the fundamental level of a legal system
or in international law. The last form I want to mention is the objective-teleological
interpretation endorsed by Gustav Radbruch. German courts have quite extensively
followed the line of objective-teleological interpretation. It can provide for rational
purposes even where the parliament has pursued irrational purposes.
Now I shall take leave of the field of the forms of interpretation and turn to the
field of the rules of interpretation. I have called them “rules of interpretation,” but in
my early writings, in particular in Theory of Legal Argumentation, I had not yet arrived
at the distinction between rules and principles, which later became fundamental to
my system.
To be sure, I used the concept of principle, but I did so in the traditional sense that
principles are norms at a very high level of abstraction. With this, we are exactly at
Joseph Raz’s point that the distinction between rules and principles is only a matter
of the degree of generality and not a matter of a different logical structure, namely,
of being either a definitive command or an optimization requirement, as principles
theory maintains. This distinction leads to subsumption as the form of application of
rules, and to balancing as the form of application of principles. In recent years I have
tried to develop further my old theory within the framework of principles theory.
The two most important principles of interpretation in this new conception are
the principle of legal certainty on the one hand, and the principle of substantive cor-
rectness, first and foremost the principle of justice, on the other. The principle of
legal certainty is a formal principle. It requires that we follow the rules issued by
empowered authorities. Instead of the principle of legal certainty, one could speak of
the principle of procedurally empowered authority or of an institutional principle. To
this, we can add the principle of democracy.
The formal principle of legal certainty and the substantive principle of correctness
can collide, and they often do. The collision has to be resolved, as always in principle
theory, by means of balancing. In my old theory of legal argumentation, I developed
the following preference rule: Arguments based on the wording of a statute or the
actual intentions of the legislator take precedence over other arguments, unless there
are rational grounds for granting precedence to the other arguments. This refers to
balancing, even if not in a very clear way.
This preference rule establishes a burden of argumentation or a burden of proof
where one is not following the wording of a statute. Now, Timothy, I think that in
the principles of interpretation that you have proposed, we have elements of this.
You speak of principles of the conferral of lawmaking power and of the conferral
of interpretive power. These are formal or institutional principles. Then you speak
about comity with lawmakers. This, again, seems to be a formal aspect—to be sure,
a formal aspect that is removed a bit from a strict priority of the authority of the law-
makers. And then you bring humility and equity into play. I think all this is related
to balancing, a balancing in which—let me say it as briefly as possible—the principle
of authority plays a pivotal role. The principle of authority is required by the dual
nature of law, and the dual-nature thesis implies the idea of second-order correctness.
Second-order correctness refers, first and foremost, to positivity, and only thereafter
to substantive justice. In sum, I think that the idea of principles of interpretation is an
idea without which you cannot have an adequate theory of legal argumentation and
interpretation. That is my reply to your wonderful lecture.

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I continue with Jan Sieckmann. Jan, I like your paper very much, and I have only
two remarks to your complex elaboration. You say that the distinction between a real
and an ideal dimension refers to a necessary feature of law, but not to the single most
essential feature of law. You argue, for instance, that the real dimension can also exist
in normative systems that are not legal systems. One can, indeed, find social efficacy
in social systems that consist of customs without thereby being legal systems, and so-
cial efficacy is one of the two elements of the real dimension. We will soon be at din-
ner. If I were to take my meal not from my plate but from the plates of my tablemates,
a customary rule would be violated. Perhaps I would never again be invited to such
a dinner. The social pressure that is faced by persons doing such things is great. Or if
I were to throw the wine in my glass into my tablemate’s face. One sanction would
be that others will be told what I have done. Nobody does such things. Such custom-
ary rules are far more effective than many legal rules. With the concept of the real
dimension I refer, however, not only to social efficacy but also to authoritative issu-
ance. Authoritative issuance, however, presupposes the institutionalization of a legal
system, and, with this, the formal principles you mentioned. That is my first point.
My second point is far more interesting. It concerns the relation between dualism
and trialism. Jan, you say that it is not enough to have a dualistic theory, as I have it.
A trialistc theory is necessary, which distinguishes analytical, empirical, and norma-
tive aspects of law. Now, my dual-nature thesis comprises, with the real dimension,
the empirical aspects of law. I agree on this point completely with Joseph Raz when,
in The Authority of Law, he characterizes the sources of law as facts. The normative
aspects of Sieckmann’s trialism concern the claim to correctness and the implications
of this claim. The implications of the claim to correctness comprise, inter alia, the ar-
gument from injustice or the Radbruch formula along with principles theory.
Up to this point, everything is easy and quite clear. Questions arise when you
say that we must have, as a third element, an analytical dimension that transforms
the dualism into a trialism. Indeed, we must have an analytical aspect of law. But,
and this is my point, the necessity of the analytical aspect does not imply that du-
alism has to be supplanted by trialism. My defence of dualism rests on two pillars:
first, the distinction between positivism and non-positivism and, second, a distinc-
tion between two kinds of positivism. I begin with the distinction inside positivism.
It does not concern the distinction made by Jules Coleman between inclusive and
exclusive positivism but the far more important distinction between naturalistic and
non-naturalistic positivism. This is the most important distinction within positivism.
Naturalistic positivism we find in its most radical and clear form in Karl Olivecrona’s
Law as Fact (1939). Olivecrona explicitly argues against Kelsen’s normativism as it is
found in an impressive form in the first edition of the Pure Theory of Law (1934). Here
Kelsen characterizes the law qua norm as an ideal reality, not a real reality. Kelsen’s
reason for this is that the norm is neither a physical nor a psychical event or cause but
a meaning content. I have often discussed with Stanley L. Paulson whether Kelsen
has ever heard anything about Gottlob Frege. Frege—my favorite philosopher after
Kant and Aristotle—says that a third realm or third world must be recognized. And
this third world is neither the physical world nor the psychical world, both consti-
tutive of Olivecrona’s naturalism, but the world of thoughts or meanings, or, if you
will, of ideas, constitutive of Kelsen’s non-naturalistic positivism. And, Jan, I am very
happy to have become familiar with your trialism thesis this evening. About four
weeks ago, I gave a lecture at the Kelsen conference in Freiburg, organized by Ralf

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Poscher, to whom I have just replied, and Matthias Jestaedt, on Hans Kelsen’s legal
theory in the system of non-positivism. And there I discussed the relation between
Kelsen’s non-naturalistic positivism and non-positivism. Your trialism thesis inspires
me to say, now, that Kelsen, as a positivist, does not connect law with an ideal dimen-
sion in a normative sense connected with morality, but he connects law with an ideal
dimension in an analytical sense. Now you say that I must include in my system the
analytical aspect. But the analytical aspect constitutive of non-naturalistic positivism
is not essential or decisive either for being a positivist or for being a non-positivist.
My dualism, however, is an instrument that serves to distinguish as clearly as possi-
ble between positivism and non-positivism. Do I need an analytic aspect for this? No,
I do not need it. Therefore, I need not abandon my dualistic construction.

Faculty of Law 
Christian Albrechts University
Olshausenstrasse 40
D-24118 Kiel
Germany
Email: alexy@law.uni-kiel.de.

© (2020) John Wiley & Sons Ltd. Ratio Juris, Vol. 33, No. 3