Robert Alexy’s Ideal Dimension of Law: Descriptive Theory of the Constitutional Legal System or Normative Theory of of the Concept of Law?

The main purpose Robert Alexy tries to achieve with The argument from Injusticeand all the other works he wrote on the same topic is to prove, against legal positivism, thatlaw is a bidimensional concept comprising both a real or institutional dimension and an idealone. As we know, positivism believes that law is valid for formal or factual reasons that justcontingently, this is the inclusive variant, may incorporate moral elements; otherwise ProfessorAlexy believes that law, the concept of law, is to be defined such that, alongside these fact oriented-properties, moral elements must be included.This paper is intended to analyse the core of Professor Alexy’s connection argument betweenfactual and ideal dimensions of the law, in order to support this central conclusion: histheory is only perfectly acceptable as a theory “of and about” democratic and constitutionallegal systems, and not if intended as a theory “of and about” the concept of law.