Validity
The blog series introduced various objects of study that exist in different realms: ideal, natural, cultural and metaphysical. In this context, law as an object of study of legal science may be defined and characterized in different fashions as, for example, legal norms or human behavior of a certain kind. Therefore, we may center the attention on the two realms between which the meaning of “law” is disputed: the world of facts; and the world of norms, or rules. Consequently, we may apply formal juridical logic or transcendental juridical logic to refer to one of the other understanding of law.
In order to show how law may be in the rules as well as in the facts and how these different understandings condition the way in which we study and refer to law, the blog series introduces “validity.” More precisely, the focus moves now to two essential meanings of “law” as efficacy and validity in order to demonstrate that both are significant, but in different realms; and both are inseparable from the meaning of “law.” “The” meaning of “law” must recognize its different aspects (e.g. the rules and the facts, validity and efficacy) are all important, and indeed synergetic.
As any term, “validity” is potentially vague. And that has to do with the “open texture” of law. Bulygin is clear in that there is no consensus among scholars about the exact meaning of this rather elusive word.[1]
Any legal order is constituted by valid legal norms or rules.[2] Kelsen begins with this matter arguing that the validity “of a norm is to express first of all simply the specific existence of the norm.” (Kelsen 1992, 12) In principle, defining existence would eliminate every hesitation about what validity means. Nevertheless, it is true, as Bulygin maintains, that “Kelsen says repeatedly that validity is the specific existence of norms. But […] the term ‘existence’ is in his use at least as ambiguous as ‘validity’.”[3]
Bulygin[4] finds four different conceptions of existence: a) factual existence; b) membership; c) existence as validity; d) formal existence. So, it seems that validity has different meanings; that Kelsen defined validity in terms of existence; and that existence itself has several other meanings too. If determining the meaning of validity was complex, now the enterprise becomes cumbersome.
To assume that a legal norm is valid when it exists and that its existence depends on a simple aspect, its creation, means that there are no factual or empirical questions because these are the logical boundaries of law. More specifically, if a legal norm is created following a given procedure and by a competent authority, with its basic yet fundamental content congruent to a superior norm that is valid, with these criteria all aspects of validity (formal and material) are included. Whether these norms or rules must include coercion in order to be considered legally valid is a separate, additional issue.[5]
Whether the valid legal norm is effective or not escapes formal juridical logic. A valid norm or rule is that one that is (i.e. exists) in a legal order. In other words, a rule is valid if and only if it has been created following the procedure, by the authority, and in tune with the content determined by a norm or rule that is superior, regardless of including coercion—or at least, coercion sensu stricto.
At the same time, by creating a new valid norm or rule part of what used to be independent, autonomous human conduct is now somehow limited by the boundaries determined by this new valid norm or rule—i.e. coercion by default. If we now wanted to explore law as efficacy we would be dealing with transcendental legal logic.
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Author of:
Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).
Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).
Thursday 10th June 2021
Dr Jorge Emilio Núñez
Twitter: @DrJorge_World
https://drjorge.world
[1] Eugenio Bulygin, “An Antinomy in Kelsen’s Pure Theory of Law,” Ratio Juris 3:1 (1990): 29-45.
[2] H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1997), 124.
[3] Eugenio Bulygin, “An Antinomy in Kelsen’s Pure Theory of Law,” Ratio Juris 3:1 (1990): 29-45.
[4] Ibid. Wil Waluchow, “Four Concept of Validity: Reflections on Inclusive and Exclusive Positivism,” in Matthew Adler and Kenneth Einar Himma, The Rule of Recognition and the U.S. Constitution (Oxford, Oxford University Press, 2009), 123-144. Waluchow presents four concepts of legal validity: 1. Legal validity as existence; 2. Systemic validity; 3. Systemic moral validity; 4. Moral validity.
[5] Jorge E.Núñez, “The Many Forces in Law: Rational, Physical and Psychological Coercion,” in Nicoletta Ladavac and Christoph Bezemek, eds., The Normative Force of the Factual (Switzerland: Springer, 2019), 135-149.
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