論阿列西的法律雙重本質理論

On Robert Alexy’s Theory of the Dual Nature of Law

本文旨在分析阿列西的法律雙重本質理論是否具有說服力。首先，本文先介紹阿列西的理論。其次，本文深入分析阿列西如何證成理想、事實本質以及調解雙重本質的矛盾。本文將指出阿列西並無證出法律的理想本質，也定性了民主作為事實本質。至於雙重本質的調和，本文認為阿列西理論中的衝突並不發生在理想與事實之間，反倒是在事實層面裡各個權威機關之間。是以，本文結論到，阿列西所描繪的法律，一方面在抽象的人權概念上保有非法實證主義的色彩，另一方面法律的具體內容還是由「權威的制定性」所主宰，因而該理論應用上應歸屬於法實證主義。

This paper aims to examine whether Robert Alexy’s theory of the dual nature of law is convincing. The paper introduces Alexy’s thesis, then analyzes his justification of the ideal nature of law, its real nature, and his attempt to reconcile this duality. The paper will not only show that Alexy does not justify the ideal nature of law, but also characterizes democracy as a factual nature. As for the reconciliation of the dual nature, this paper argues that the conflict in Alexy’s theory is not between the ideal and factual natures of law, but rather between the various authorities in the factual dimension. Therefore, this paper concludes that while law as depicted in Alexy’s theory is colored by non-positivism in terms of the abstract concept of human rights, in concrete terms the content continues to be dominated by“authoritative issuance.”Thus his theory should be classified as legal positivism in its application.