Robert Alexy, or the Practice of Conservative Legal Theory

Guillermo Moro*

What we call “theory” is the reflective moment of practice. Practice –say, the
practice of advocacy– entails a broad variety of actions that are performed
following certain codes that are shared among the participants of a certain field.
Theory kicks in when the meaning of those actions is interrogated, when the
shared code or some piece of it becomes a question rather than an assumption.

Lawyers do lots of different things. Typically, they argue cases for clients.
They argue cases by writing memorials that are filed with the corresponding
authority (a judge, an arbitrator, a tribunal of judges or arbitrators) and by
presenting their positions orally in private or public hearings. They also produce
evidence in favor of their positions and evaluate evidence produced by the other
party. They inspect the validity of documentary evidence; they examine and cross-
examine witnesses and experts. When arguing a case, lawyers produce a series of
arguments. They refer to legal rules that they consider applicable to the case in
point; they refer to previous rulings by other tribunals that have decided
analogous issues the way they are asking the tribunal to decide this one; they refer
to doctrinal works of legal experts in the corresponding branch of law that provide
reasons for deciding the case their way. Utilizing the whole body of materials
introduced into the record by the parties, judges and arbitrators construct their
decision. Such construction also involves references to applicable legal rules, to
previous decisions, to doctrinal writings, to factual evidence, to expert opinions.
When the decision is rendered, the losing party may have the possibility of
questioning the decision before a superior tribunal. Then, advocacy re-initiates
until the superior tribunal renders a new decision. And so on and so forth.

*Lawyer (Universidad Nacional del Litoral), with gold medal. Master of Laws (Harvard University).
He practices law in the field of international law. He teaches graduate clases at the Universidad
Nacional del Litoral and postgraduate clases at the Universidad de Palermo. Contact:
guille.moro@hotmail.com.

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 We speak of “theory” to indicate the moment in which reflection is
performed regarding actions such as those listed above. For example, a lawyer
argues her contracts’ case invoking the doctrine of rebus sic stantibus in favor of
her client. When she argues before a tribunal to conclude that rebus sic stantibus
should trump pacta sunt servanda according to the particulars of this case, she is
doing advocacy. When she (or a different person) interrogates the foundations of
the notion of “contract” and the conditions under which it is justifiable to say that a
contract is binding on the parties to it, she is doing theory. When a judge is writing
her decision and prolixly lists all evidentiary materials introduced into the record
by the parties, she is doing judging. When she (or a different person) interrogates
the possibility of rendering objective judgment based on evidence, she or he is
doing theory.

Theory is practice; it is something that is performed, something that entails

a distinct set of actions within a code shared by participants. There is no real
divide between theory and practice. There is a continuum of moments of practice,
that go by different names. One of those moments we call “theory”.

There are two ways of conceiving the moment of theory in the practice of
law. One is scholar legal theory; the other is problematic legal theory.

Scholar legal theory privileges commentary of one or several authors that

have done theory before. Problematic legal theory privileges analysis of problems,
and cites to authors only if relevant to tackle the problem at hand. Scholar legal
theory is the exclusive reign of professors, very much concerned with the
professional showcase of erudition and its organization into abstract writing.
Problematic legal theory is not mainly interested in disciplinary prestige and can
be performed occasionally as well as systematically, by lay practitioners as well as
by professors, being written or without ever being recorded.

The vast majority of teaching and writing that goes by the name of “legal
theory” is scholar legal theory, that is, erudite exercises in the thinking of someone

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else. When the few problematic legal theorists write their ideas, the many scholar
legal theorists get a new object of study.

With the exception of theory itself, all moments in the practice of law can do
without theory. A professor of, say, international law, can aptly teach his class from
beginning to end without a single moment of theory. A judge of, say, the Supreme
Court of Justice, can aptly fulfill his role term after term without a single moment of
theory.

Then, what is the function of legal theory? Does it have a function at all?

It does. The function of legal theory is a background function. Legal theory

is there to fill the void whenever a piece of the lawyers’ shared code is disrupted
by becoming question instead of assumption. Such disruptions rarely happen, but
this is not relevant. Legal theory contributes to the stability of the practice of law
by “being there”, by enabling the notion that the things we say and do all the time
as lawyers have an explanation and can be justified if needed.

This is why legal theory is –so to speak– entrusted with the most delicate
assumption of all in this field: the assumption that there is a defensible meaning to
the practice of law, so that the law is worthy of being practiced as such.

In legal theory, this assumption adopts the form of a question about the
possibility of objective correctness in law. The stakes seem high. If objectivity –or,
at least, some form of impartial, neutral correctness– is possible in legal argument,
then it makes sense to partake in advocacy in favor of one or another position as a
matter of law. Some reasons are better than others, and it is possible for better
reasons to prevail as a result of a fair legal process. On the contrary, if objectivity –
or, at least, some form of impartial, neutral correctness– is not possible in legal
argument, then it makes no sense to partake in advocacy in favor of one or another
position as a matter of law. Any matter of law would, in reality, come down to a
matter of power: who can prevail over who. Legal debate would be ideological

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struggle in disguise. Judges would be rulers. Argument would be rhetoric.
Advocacy would be just one of many weapons available to foster one’s interest,
and certainly not the most effective at it.

The impossibility of objective correctness is the law’s worst nightmare. If

the nightmare is reality, law is pointless: a mere compilation of performances in
absurd theater. Legal theorists are called upon to keep the nightmare only a
dream.

Thus, legal theorists should not take offense in the ordinary lawyer’s usual
disregard of his or her work. As most people in most areas, they are simply not
willing to dwell into the complex deep structure of their practices unless
absolutely necessary. Disregard is the lawyer’s gratitude to legal theory, for
allowing a stable wake in which a different great number of technical problems can
be meaningfully (at times profitably) dealt with.

Of course, the practice of legal theory is not uniform. Legal theorists,

whether of the scholar or the problematic kind, can adopt very diverse positions
on lots of topics. In time, according to their similarities and dissimilarities, they
tend to gravitate into groups, knowingly or not. These groups eventually become
“schools”. Members of these schools can stage some fierce debates among them.
However, debate in legal theory is twofold. There is a visible side, in which
participants argue strongly for, say, some version of formalism, of positivism, of
natural law. But at the same time there is a less visible side, in which they are not
in opposition but in agreement. They are in agreement regarding the
meaningfulness of their debate and, thus, regarding the possibility of achieving
some form of objective correctness in legal argument, despite their many,
profound differences as to how one is to achieve such correctness and on what
topics it is possible to achieve it. Diversity in legal theory goes hand in hand with
uniformity.

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 Dissent is welcomed, even encouraged in the visible side of legal theory.
Dissent is unwelcomed, even punished in the less visible side of legal theory. Those
who dissent in the less visible side of theory are usually labeled “critics”. The label
cannot derive from the fact that they perform critical thinking, since all legal
theorists perform critical thinking one way or the other. Instead, it has to derive
from the fact that the critique these dissenters perform is of a particular kind. It is
a critique aimed at the basic assumption that legal theory was supposed to
safeguard: the assumption that there is a defensible meaning to the practice of law,
so that the law is worthy of being practiced as such. As in ancient Greece, the
punishment for breaching the constitutive agreement is exile. By refusing to accept
the assumptions that thread together the practice of law, critics place themselves
(or, if not, they have to be placed) outside the practice of law. At best, they can be
deemed sociologists, anthropologists, even artists (of doubtful talent). But as long
as they want to remain inside the practice of law, they have to be deemed traitors,
impostors, for they do not believe in what they are doing. Whether in the moment
of advocacy or in the moment of theory, they are arguing for positions as a matter
of law or as a matter of truth while at the same time they are claiming that there is
no way of settling those positions as a matter of law or as a matter of truth. This
cannot be but cynicism, a kind of bad faith, purely strategic involvement with law
and legal theory. They have nothing to contribute to better the practice of law, but
instead a relentless resolve to undermine it.

Some critics enjoy the emotional, aggressive resistance they can get from
their adversaries, sometimes up to a point in which indulging in the character of
“rebels” in the eyes of their peers is all they are really up for. These critics deserve
little attention.

However, most critical legal theorists reject the resistance they get and,
most importantly, consider it misplaced. For them, questioning the assumptions of
objectivity in law is not appetite for destruction, but groundwork for creation.
Therein lies yet another conflict of conceptions about what is to be expected from
the work of theory in law.

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 One conception privileges the explanation of current practices and
institutions into cogent systems, such that those practices and institutions are
“seen in their best light”. This exercise is usually referred to as “rational
reconstruction”, which means that the already existing practices and institutions of
law get justified as concrete though yet imperfect enactments of a desirable ideal
to which they can and should be permanently steered. This desirable ideal is the
“regulatory idea”, a direction unattainable in its entirety that allows both the
rational justification and the critical appreciation of what actually exists. What
exists can be critically appreciated depending if it is going or not in the direction of
the regulatory idea. What exists can be rationally justified depending of its being or
not an enactment –even if always an imperfect one– of the regulatory idea. We can
call this conception the conservative practice of legal theory.

The other conception privileges the transformation of actual practices and

institutions in law. This exercise is not mainly concerned with the justification of
what exists, but instead with the imagination of what might and should exist. From
this perspective, the work of theory is first and foremost to make apparent the
profound flaws in current legal practices and institutions by developing a critique
of law. What currently exists, what we call “the law”, is nothing more than the
provisional result of a long series of ideological battles for domination between
different groups in society (for example, in Marxist parlance, between those who
own the means of production and those who own but their labor force). Since
extant legal practices and institutions gain its principal traction from the erasure of
their contingency, theory is aimed at de-naturalizing them, at highlighting their
radical contingency by showing that pretenses to objective correctness or neutral
justifiability in law are, in fact, a function of the distribution of forces in society. As
the poet wrote, what now is proven, once was only imagined. Doing legal theory is
imagining alternatives ways of organizing society, constructing detailed accounts
of what legal practices and institutions might and should look like, and speculating
about the necessary conditions to bring them about. We can call this conception
the transformative practice of legal theory.

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 At any given point in time, the choice between one conception or the other
is ineradicably political. Doing conservative legal theory is being in favor of the
existing legal practices and institutions, even if considering that some minor
improvements are desirable. Doing transformative legal theory is being against the
existing legal practices and institutions, considering that most of them should be
abandoned and some should be replaced.

The clash between these two conceptions is uneven. Conservative legal

theory speaks in the reassuring voice that the average lawyer prefers when it
comes to the evaluation of his or her own practices and institutions. It provides a
sense of guidance for the mild reforms perceived as necessary, while essentially
conveying the message that the basic structure at hand (say, the Constitutional
Rule of Law) is just, the best structure possible. In contradistinction,
transformative legal theory gives no comfort to the average lawyer. If anything, it
conveys a sense of worthlessness of what he or she currently does in exchange for
unsure prospects of a supposedly better, just world. No wonder that, at the
moment of theory in law, most people bet their chips on conservative legal theory
rather than on its opposite.

It is uncontroversial to say that Robert Alexy’s theory of law has attained

over the last few decades an unparalleled degree of attention and influence within
the legal community. His overarching work has become an inevitable reference for
anyone interested in contemporary legal thinking. Its reach, however, is not
confined to specialized legal theorists and philosophers. On the contrary, Alexy’s
most enduring influence is to be found in the actual dealings of judges and lawyers,
operating with the materials of law on a daily basis, for whom the German
philosophers’ concepts on subjects such as legal argumentation, fundamental
rights, or proportionality analysis have become indispensable tools for intervening
effectively in most litigations and discussions.

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 Of course, this is not to say that all lawyers –especially, not all “practical”
lawyers, i.e., trial lawyers, prosecutors, judges, arbitrators– have suddenly turn
into regular practitioners of legal theory. It is still reliable commonsense to remark
that the moment of theory in law is at best superficially visited and at worst totally
disregarded and even despised as useless by most lawyers (even if they depend on
legal theory in its background function). The point is that, for the rare minority of
lawyers with an interest in theory, nowadays Robert Alexy is one of the most –if
not the most– important contemporary reference.

This is particularly so regarding the sub-group of appellate judges that are

called upon to decide constitutional and administrative public law issues. For
those judges, recurrently faced with cases where a collision of principles or
fundamental rights is perceived to exist, or where difficult constitutional
interpretation issues are perceived to be present, or where complex enforcement
of fundamental rights is perceived to be necessary, Robert Alexy’s lexicon is a
resource to which most often than not they go in search for guidance and help. In
turn, this impacts the professional language even of lawyers who never heard –let
alone read– the German professor, who end up arguing about, say, the three stages
of proportionality analysis, unaware of the bibliographical authorship or
theoretical development of their remarks.

As a lawyer myself, I think I have benefited a lot in practical terms from the
study of Robert Alexy’s always lucid, original, compelling theoretical writings.
Alexy is a problematic legal thinker. His vast scholarly erudition is not vain but
sober, pertinent to the development of his personal view.1

1 There are so many remarkable pieces in Alexy’s trait, but I guess a quick personal top ten of his
works must include the following: A Theory of Legal Argumentation (first version of his
contribution from legal discourse to the general theory of practical discourse), The Theory of
Constitutional Rights (perhaps his best piece, a relentless discussion of almost every relevant issue
in the history of legal theory), “A Theoretical-Discursive Conception of Practical Reason” (a clear,
brief explanation of his version of the general theory of practical discourse), “The Foundations of
Legal Reasoning” (with Aarnio and Peczenik, arguably one of the most influential writing in legal
theory over the last 50 years), “The Idea of a Procedural Theory of Legal Argumentation” (a short
piece that, in my opinion, below a number of rather pretentious logical formalizations, contains the
most candid expression of the ethos of Alexy as a legal theorist), “Justice as Correctness” (a
compelling explanation of the conception of justice in discourse theory), “Human Rights Without
Methaphysics?” (the substantive harvest of the procedural seeds), “The Justification of Human

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 What is the meaning of Alexy’s undeniable success in contemporary legal
theory? How come he has become the point of reference in legal theory? What is it
that Alexy’s offer that lawyers are interested in buying? What are the distinct
moves that we can find in Alexy’s work as a legal theorist? What kind of theory
does he practice? What does his practice of legal theory say about the workings of
law in general in contemporary society?

If one were to define Alexy’s legal theory with one adjective, that adjective
would be “procedural”. Whatever the topic he tackles –and he tackles many– his
trademark move is to remove the topic from substantive argument about the
merits of one position or the other and, instead, focus on the procedure through
which one could make an argument in favor of the merits of one or the other
position.

By “going procedural”, Alexy intends to travel an intermediate road in the

field of legal theory. That road is intermediate regarding two poles. The two poles
are divided by the question that –as we mentioned above– frames the basic
assumption of legal practice: the question of the possibility of objective correctness
in law.

On the one hand, we have those theories of law that develop a justifying
scheme for a series of specific moral outcomes that are deemed to be objectively
correct. Those theories can be critical or reinforcing for the extant legal
institutions on a given place and time, or might strike some balance between
objection and praise for the extant legal order. They are based on the idea that
legal outcomes can be objectively right or wrong, that is, that they can be assessed
as correct or incorrect irrespective of the person that is making the assessment or
of the context in which she is making it. Therefore, legal institutions that are found

Rights in Carlos Nino” (a generous, admiring piece for the Argentinean philosopher, also genuinely
surprised at the formidable overlaps between each one’s projects), “Constitutional Rights,
Balancing, and Rationality” (a compelling, useful explanation of Alexy’s take on proportionality
analysis), and “Aleksander Peczenik” (an emotional, beautifully written short piece, with several
nuanced hints into the genealogy of Alexy’s own theoretical project).

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in some or most legal systems –say, for example, individual property– are
defended as just or unjust regardless of context. These theories of law typically
rely on a more general theory of morals. From their standpoint there is an
inextricable relation between law and morals. Their theory of morals is an
objective one. Through different devices –the mandates of a transcendent or
immanent god, human intuition, human reason, natural evolution– they argue for
the possibility of arriving at certain moral judgments that are universally valid and
binding, irrespective of culture, gender, age, race, ideology. Traditional theories of
“natural” law belong to this group, but contemporary “political” theories such as
John Rawls’ or Ronald Dworkin’s belong there as well.

On the other hand, we have theories that strongly oppose the possibility of
objective correctness in law. These theories might concede that, in practice, some
or even most cases can be decided “according to the law” in some uncontroversial
and purely “legal” manner, but stress that when it comes to cases in which there is
no clear legal mandate that settles the issue, or there is a gap in the system, or
there is a complex matter of interpretation involved, or there is some clash of
fundamental rights or principles, there is no way to get at a solution that is not
influenced by the subjective preferences of the decision-maker and her context.
From this perspective, legal institutions are determined by subjectivity and context
–certain moral preferences or ideology of practitioners, judges and arbitrators, or
culture, or capitalism, or the will to power. Therefore, legal institutions that are
found in some or most legal systems –say, for example, individual property– are
deemed peculiar of the societies to which they belong in a certain moment in
history, and cannot be considered just or unjust regardless of context. They could
all very well be different, and there would be no objective way of making the case
for one or the other. Typically, these theories of law put forth that the realm of law
is starkly severed from the realm of morals. They also claim that objective
correctness is impossible in morals, since all moral judgments are context-laden
and ultimately subjective, irrational, ideological in kind. Traditional “positivistic”
theories of law belong to this group.

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 The procedural turn in Alexy is an attempt to get away from the trap posed
by the objectivity divide in modern legal theory. He embraces the critique of
natural law and of objective correctness as a matter of substance in law. He
considers that there is no way to get always at a decision in law that can be
justifiable as the only correct answer, and he is sensible to the argument that a
strong substantive commitment to specific legal outcomes can and has been paired
with oppression and abuse in the history of societies. But, at the same time, he
embraces the critique of positivism and of irrationality in law. He considers that it
is possible to argue rationally in all cases –whether “easy” or “hard”– and that some
answers may be determined as objectively correct in law, even if not all or most of
them.

This is a strategic move that other legal theorists have performed as well
(for example, Carlos Nino). The “trick” consists in trafficking as much substantive
moral content as possible under supposedly mere procedural considerations. The
calculation is not unsound. Nowadays, for a legal theory to be widely accepted it
has, firstly, to provide the classic reassurance that our existing legal institutions
are basically just and better than any other possible alternative, and secondly, to
strike a balance between skepticism and belief, between indeterminacy and
certainty. To my knowledge, no contemporary legal theory has fulfilled these
expectations as masterfully as Robert Alexy’s. (It is worth noting that, at times,
Alexy himself, just as Nino before him, can be read explicitly considering the
requirements for his theory to gain the most ample acceptance possible within the
legal community, while developing the complex tenets of such theory).

The procedural theory of Robert Alexy is a theory of practical discourse. He

has inserted himself in the Kantian tradition revisited by Jürgen Habermas and
Karl-Otto Apel. According to this line of thought, humans are equipped with the
ability of practical reasoning. This ability allows them to reach moral judgments.
They can reach moral judgment rationally by following a series of rules. These
rules are grounded in the actual practice of moral argument, that is, in the
phenomenology of practical reasoning. It is from the empirical observation of this

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practice that the theorist extracts a series of implications that get generalized as
the rules of rational discourse.

The rules of rational discourse are of two types: monologic and non-
monologic. Monologic rules refer to the structure of arguments. They require
things such as no contradiction, universability of assertions, conceptual clarity,
truthfulness, consideration of consequences, deductive completeness. Non-
monologic rules refer to the procedure of discourse. They prescribe things such as
that everyone can intervene in deliberation, that everyone can question any
assertion, that everyone can introduce any assertion at any moment in time, that
no one can be coercively excluded from deliberation.

Following monologic and non-monologic rules of practical discourse allows

participants to reach moral conclusions that can be defended as objectively valid in
some robust sense, even if always open to revision, always defeasible. In fact, the
endless character of moral deliberation is crucial for this theory. Practical
deliberation cannot be stopped. If it is stopped, it loses potential for allowing
objectively valid moral conclusions. This means that moral conclusions are always
weak, provisory, a kind of permanent work-in-progress, as it were.

The rules of rational discourse are not entirely procedural. On the contrary,
implicit in them are assumptions of fundamental rights and principles. For
example, when one is involved in a discussion with another person on a particular
topic of morality (say, the proper distribution of public wealth), one acknowledges
that this other person is not to be treated as a means but as an end. This is so,
because the act of engaging in argument with someone else entails that one
considers him or her worthy of being rationally convinced by transparent
argumentation and, thus, of reaching conclusions freely by his or herself. The
opposite would be to trick this person, or to forcefully subdue him or her. Hence,
the practice of moral argument implies the principle of human autonomy. The
point is that, in discourse theory, this principle of human autonomy is not
defended in a top-down fashion, starting from theoretical premises, since these

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premises would not be able to find objective grounding beyond the reach of the
positivist critique of transcendence. On the contrary, discourse theory procedes in
bottom-up fashion, immanently, as it were, observing actual practice and
articulating the theoretical premises implied in such practice. Saying the
theoretical premises are implied in the practice means that no one engaged in the
practice can deny them without incurring in a fatal contradiction with his or her
own actions (a problem quite famously known as “performative contradiction”).

In sum, this is the kernel awaiting at the core of Alexy’s procedural theory of
law: there is a way of arguing morality in law in a rational manner and with a
pretense to objective correctness that is beyond the reach of positivism’s critique
of objective correctness and morality in law. Or to put it differently: Alexy offers
the modern legal community the seemingly only way in which the traditional
aspiration of objectivity in law can be successfully defended after the demise of
transcendent justification (God, Nature, Reason), namely, a modest way. Indeed,
one has to pay a price for it. The price is to resign the grandiose aspirations of an
all-encompassing systematic theory that furnishes each legal question with a
correct answer. Instead, one is to accept that there are only a few basic issues that
can be defended as objectively settled (outcomes that are “discursively necessary”
or “discursively impossible”). Beyond, there remains a wide range of issues that
cannot be settled objectively one way or the other, but this does not mean that
“anything-goes” as far as they are concerned. On the contrary, all those issues can
be rationally controlled through the procedure of legal argumentation, securing
that whatever decision is made is a “discursively possible” one. For these issues,
certain prima facie preferences are established, always defeasible if confronted
with better arguments and/or new information.

A striking feature of the theory of discourse in Robert Alexy is the complete

idealism of its supposed empirical basis. As we saw above, discourse theory claims
to be grounded in the actual practice of moral argument in contemporary society.
It is from the empirical observation of that practice that the theorist extracts the
series of implied assumptions that get generalized as the rules of rational

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discourse. It is by following these rules that moral reasoning can be rationally
conducted. However, as a matter of fact, the rules of rational discourse are not
followed by practitioners of moral argument, and some of them cannot even
possibly be followed by them. This immediately calls into question the validity of
the supposed “empirical” or “phenomenological” basis of discourse theory. If the
validity of the rules of argument is immanently justified by reference to the actual
practice of moral argument, then they must be typically followed, or at least it must
be factually possible to follow them. It is quite odd to claim to be deriving rules
from practice when those rules are not observed and sometimes cannot even
possibly be observed in practice.

Let’s take just two examples. The first example is the endless character of
moral argument. In discourse theory, for a moral outcome to be rationally
justifiable as correct, there should be no temporal limit to the argument and no
ending point for it. Paradoxically, this means that for a moral outcome to be
rationally justifiable as correct there should never be a moral outcome at all, but
instead a permanent postponement of it. The moment we interrupt deliberation,
the moment we make a decision, we move beyond moral objectivity.

The second example is the participation of all persons interested in a moral

deliberation. As we saw above, the rules concerning the possibility of participation
and expression in argumentation are part of what Alexy calls “non-monologic”
rules of discourse, that is, rules that cannot be followed individually but that
require rational interaction between persons, since this rational interaction is the
only possible guarantee of reaching impartiality in moral judgment. However, for
most issues of morals it is factually impossible –and it has certainly never been the
case– to allow every interested person to participate in deliberation and to
introduce any assertion he or she might want at any point in time. Alexy recognizes
this shortcoming, but surprisingly postulates that it is not fatal, since social
interaction can be rehearsed individually, as it were, in one’s own mind, imagining
what others might say on every point and taking as indicia for it what has been
written about it by others.

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 Hence, for Alexy, non-monologic rules of discourse can be monologically
followed. In other words, Alexy is saying that actual social interaction can be
effectively replaced by fictional individual rumination. This can hardly make any
sense. It should be remembered that non-monologic rules of discourse were
supposed to reflect the impossibility of reaching impartial judgment for oneself
implied in the practice of engaging in moral argument with others. That
impossibility stems from the limitations of one’s access to information, from our
ineradicable prejudices and biases, from our incomplete articulation of ideas.
Engaging with others, with all others interested, was supposed to be the way of
making it up for those shortcomings of ours. But then, when confronted with the
fact that such interaction cannot take actual place, Alexy flips and asserts that a
single individual can reach impartial moral judgment by an appropriate exercise of
the mind, what ends up blending his supposedly phenomenological, immanent
theory with abstract, transcendent theories such as John Rawls’ (the veil of
ignorance in Rawls is an exercise of the individual mind that illustrates the
conditions for impartiality of moral judgment about the institutions of society).

These kinds of shortcomings reveal that, within Alexy’s own system,

decisions of moral issues in the real world have to be acknowledged not only as
not objectively correct or incorrect, but also as irrational. Moreover, such factual
shortcomings cannot be resolved through progressive orientation to the
“regulatory idea”, since the necessary rules to be followed simply cannot be
followed (which begs the question of how could they become rules of rational
discourse in the first place, if it is true that discourse theory is grounded in
practice, in the phenomenology of practical discourse).

Things get much worse when we get into the “special case” of law.
According to Alexy, law is a special case of general practical discourse. It is
characterized by the institutionalized character of its proceedings and of its
sources (statutes, precedents, doctrine). In particular, law complements practical
general discourse in a crucial way: providing decisions. According to Alexy,

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practical legal discourse develops an array of possible moral outcomes, always in
the process of being manufactured through open and endless deliberation. The
problem with practical legal discourse is, precisely, its open and endless character.
In reality, decisions need to be taken. For instance, it is necessary to decide if a
certain journalist should be condemned to pay damages to a public officer that
thinks that he has been grieved in his honor. Or it is necessary to decide if a
transnational company of cigarettes is entitled to damages for expropriation of its
assets by a State that heightened its restrictions for the selling of cigarettes to its
citizens. These issues can be endlessly debated in the realm of practical reason, but
if a decision is not rendered, practical deliberation reveals to be purely speculative,
in other words, useless.

This is where the law kicks in. For Alexy, law provides a particular structure
of practical reasoning that enables rational deliberation that leads to rational
decision. It is by virtue of this that Alexy pays law the highest praise: it is only
within the legal framework that practical reason can be realized.

However, this is very puzzling a position to take for Alexy. Within the legal
framework, the requirements of rational discourse are even more impracticable
than in moral deliberation as such. In a typical judicial process, time for
deliberation is restricted, participation in deliberation is restricted, the sources for
argument are restricted, the evidence to be adduced is restricted, the information
to be considered is restricted, and so on and so forth. Hence, it is hard to see how
the law could be the realization of practical reason. If anything, law is the
realization of the pragmatic needs for disputes to be settled, period.

Certainly, it is true that, unlike general practical deliberation, the legal

process allows for concrete decisions to be taken in discrete time. But it is
fallacious to infer from this ability to produce decisions that law realizes practical
reason. The realization of practical reason, under Alexy’s own version of it, hinges
not on the rendering of decisions as such, but on the process through which those
decisions are rendered. Since the process through which decisions are rendered in

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law is totally distant from that which, according to Alexy, would guarantee
rationality in practical reasoning, it cannot be said that law realizes practical
reason.

Alexy is not ready to accept this kind of critiques. For him, even if some
problematic shortcomings are certainly present in discourse theory and in its
articulation with legal practice, those shortcomings should not amount to a
wholesale demise of the theory. This is so, because the theory of rational discourse
at least allows us a structure of intelligibility, a pattern, some form of guidance, and
that is better than nothing. Perhaps nowhere in his vast work Alexy expresses this
more wholeheartedly than in his article “The Idea of a Procedural Theory of Legal
Argumentation”. There, while dealing with the objection that the non-monologic
rule of actual deliberation among all interested persons is typically impossible to
fulfill, he claims: “It is not impossible to imagine the arguments of others and the
interests that they express. Regarding almost every practical issue arguments have
already been expressed. They can be treated as arguments of possible participants.
The key is to preserve the hypothetic character of the results of procedures conducted
mentally. The insecurity of this criteria gives raise to no objection. As far as no other
more secure and convincing criteria can be presented, it is better to have insecure
criteria than to renounce to them”.

Well: this is the quintessential move of conservative legal theory. The

postulation that, whatever we already have, however imperfect or flawed it might
be, is better than any conceivable alternative (or lack thereof). It is thus always
better to cling to the practices and institutions that we have, even if to do so we
must ultimately resort to fiction, to myth, i.e., the myth of objective correctness and
rationality in law, only attainable through unattainable procedures. Rationalizing
legal theory, even if only remotely plausible, is better than no legal theory at all.

One can have some sympathy for this outlook. It has been the case over the
history of mankind, and particularly over the last two centuries, that horrific
abuses have been inflicted by the powerful to the weak (imperialism, holocaust,

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genocides, atomic bombings). The idea of a “Constitutional Rule of Law” within the
institutional design inherited from US and French revolutions of the XVIII century
seems to provide solace from those abuses. Theory should not indulge in critique
so far as to undermine the basic belief in the desirability of these institutions that,
after decades of terror, mankind has managed to collectively adopt. Even if Alexy’s
own theoretical tenets should lead him to condemn the practices and institutions
of contemporary law, he gallantly refuses to do so. Conservative legal theory is the
practice of developing reasons to justify the existing legal order. When reasons run
out, the rational conservative legal theorist turns to myth, and he does not flinch.

The problem with the dreadful picture that underlies the option for the
conservative practice of legal theory is that it omits completely the possibility of a
different kind of practice: transformative legal theory. From the transformative
standpoint, the recognition of the shortcomings in the existing legal order is a call
for the construction of a new legal order, instead of the pessimistic or conformist
clinging to what we have inherited.

Granted, this is risky business. Transformative legal theory can be practiced

from many different ideological trenches. Some believe in the popular
transformation of law through political movilization of the oppressed articulated
with resistance by actors in privileged social positions (such as legal theorists) in a
direction of radical economic, gender, and racial equality and freedom. But some
others believe exactly the opposite. Transformative legal theory does not fear
indeterminacy of result and dares reaching seriously at the ideal, whatever the
ideal.

Conservative legal theory prefers to provide stability to the legal

institutions as they already exist, and is skeptical of any goal that is more
ambitious than that. Such is the case of the eminent Robert Alexy, who postulates
that our current legal institutions, capitalist, Eurocentric, sexist, hierarchical, at
times oppressive as they are, are “the realization of practical reason”.

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 In one of Father Brown’s stories, Chesterton once wrote: “What we all dread
most –said the priest in a low voice– is a maze with no centre. That is why atheism is
only a nightmare”. Inspired by Chesterton, Borges wrote the tale of a librarian in an
infinite library, who devoted his life to the development of schemes of objective
intelligibility for the library (the universe) around him. He sought the book of
books, the impossible book that contained the key to all mysteries and, thus, the
confirmation that, after all, there was meaning to the otherwise absurd, terrifying
universe of the library. After losing his ability to see, after losing his ability to walk,
still without ever finding the book of books in the innumerable shelves, the old
librarian reflects and implores: “In adventures such as these, I have squandered and
wasted my years. It does not seem unlikely to me that there is a total book on some
shelf of the universe; I pray to the unknown gods that a man -just one, even though it
were thousands of years ago!- may have examined and read it. If honor and wisdom
and happiness are not for me, let them be for others. Let heaven exist, though my
place be in hell. Let me be outraged and annihilated, but for one instant, in one being,
let Your enormous Library be justified.”

Conservative legal theorists such as Robert Alexy resemble Borges’

librarian. They are ready to exhaust their vital energies in the cause of finding
objectivity, rationality, meaning in the existing legal order around them, even if
ultimately they have to acknowledge that what they have got is only better than
nothing, even if what they have got is a myth.

It might be desirable to put the vital energy of legal theory to a different use.

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