Raz on the Argument from Justice & Legal Positivism

Joseph Raz (University of Oxford - Faculty of Law) has posted The Argument from Justice, or How Not to Reply to Legal Positivism (LAW, RIGHTS AND DISCOURSE: THE LEGAL PHILOSOPHY OF ROBERT ALEXY, George Pavlakos, ed., pp. 17-36, Hart Publishing, 2007) on SSRN. Here is the abstract:

A critique of Rober Alexy's argument against legal positivism and of his version of the Radbruch argument.

And some more from the text:

Professor Robert Alexy wrote a book whose avowed purpose is to refute the basic tenets of a type of legal theory which ‘has long since been obsolete in legal science and practice’. The quotation is from the German Federal Constitutional Court in 1968.1 The fact that Prof Alexy himself mentions no writings in the legal positivist tradition [in English] later than Hart’s The Concept of Law (1961) may suggest that he shares the court’s view.2 The book itself may be evidence to the contrary. After all why flog a dead horse? Why write a book to refute a totally discredited theory? Perhaps Alexy was simply unlucky. The burst of reflective, suggestive and interesting writings in the legal positivist tradition reached serious dimensions only in the years after the original publication of his book, when Waldron, Marmor, Gardner, Leiter, Shapiro, Murphy, Himma, Kramer, Endicott, Lamont, Dickson, Bix and others joined those who had made important contributions to legal theory in the positivistic tradition in the years preceding the original publication of Alexy’s book: Lyons, Coleman, Campbell, Harris, Green, Waluchow and others, who are still among the main contributors to legal theory in the positivist tradition. It is a great shame that nothing in these writings influenced the arguments of the book.

Very highly recommended.  Download it while its hot!