Valid Law Reconsidered

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by Ota Weinberger

The claim that something is valid law is an assertion about a social fact. We should distinguish two cases: (i) the claim that a certain norm system is valid; and (ii) the claim that a certain element of a valid system is - or is not - valid.

Legal theory is divided into two opposite conceptions: positivism which takes as essential only the actual effectiveness of legal regulations; and natural law doctrines which take moral validity as a necessary condition of the validity of law. Lawyers do not argue about the validity of legal systems, but from a more theoretical point of view we may analyse also the criteria of the validity of legal systems. The justification for characterizing a norm system as valid might have ultimately to do only with empirical properties (as asserted by positivists) or it might have to do, in part, with having certain metaphysical and moral properties (as asserted by natural law doctrines). A legal system is actually valid if - on the social average - people follow the regulations or are compelled to follow them by sanctions.

The famous positivist H.L.A. Hart holds that every legal order has incorporated some elements of natural law, since it provides protection of life, a certain kind of division of work and some kind of system for making contracts. ln my opinion, this is only a functional characterisation of legal systems, but not an element of natural law, since there is no advice on how to settle these problems (i.e., on what the relevant protections should be).

In all legal analyses, two views are essential; validity as legality which refers to the status of a norm as law; and legitimacy which refers to its being justly enforced. The criteria of justice are the main expression of the political conception; yet there is no indubitable commonly-accepted criterion of justice. Dependent on one's views, it might be that laws are legitimate (because they are democratically enacted) even though they are not substantively just.

To fully understand the various problems arising in connection with legal validity, we must distinguish:

rules of duties and rights,

power-conferring rules, and

legal principles.

Rules of duties and rights (including also permissions) apply just in case that the conditions of subsumption are fulfilled. There are some logical restrictions concerning such rules. "a ought to be" is incompatible with "non-a ought to be" and with "non-a is permitted".

A special kind of rules is power-conferring rules. A subject is empowered to create legal norms if, and only if, his norm creating act that shall be is to the effect that becomes a valid element of the norm system. Power -conferring rules define competences in the legal organisation.

Legal principles are normative elements of a legal order which have different functions from rules. As maxims for legislation they indicate the aims and purposes of legislation. They influence the decisions not by subsumption, but by weighing the decision under certain criteria. Different principles may apply to the same case, and they may lead the decision into opposite directions. A weighing choice is then necessary.

Different kinds of legal norms may have different legal force. E.g.: Norms of the constitution may derogate simple laws, but simple laws cannot derogate the constitution.

Rules can have the same normative force, or one rule can have a weaker normative force than another rule. Rules can have the same normative force, or one rule can have a weaker normative force than another rule.

If rules A and B are subject to the principle that the most recently promulgated of the two is valid, then they have the same normative force.  If A is the kind of rule that can be derogated by a later rule of the kind B, but not vice versa, then A has weaker force than B

The problem of consistency is different in science and in legal philosophy. In reality a state of affairs "p and non-p" cannot exist; yet in a legal system both norms "p ought to be" and " non--p ought to be" can be produced with the same force. Evidently, it is impossible to satisfy both norms at the same time. It seems reasonable to hold that inconsistent regulations on the same hierarchical level annihilate themselves.

Consideration on Kelsen's Grundnormtheorie ("apex theory")

One of the most famous and most widely discussed theories of legal validity is Hans Kelsen's "Grundnormtheorie ". It is based on the following theses:

(i) The validity of a norm is established by a higher or a power-conferring norm n1; the power-conferring norm is the conditio per quam (essential reason) for n’s validity while the norm-creating human act is only the conditio sine qua non (actual reason) for its validity.1

(ii) The validity of n1 will also be justified by a higher norm; accordingly, the existence of any valid norm presupposes a chain of valid norms.

(iii) The validity of this chain is founded either by a hypothesis or by a supposition.2

Kelsen holds the opinion that every scientific research is based on some axiomatical supposition which is accepted as certain, but which is not proven. For the realm of law the Grundnorm is such an inevitable supposition. Within the axiomatic system, the axioms are supposed and need not be proven. But if the theses of the axiomatic system are asserted as actual facts, empirical justification is necessary.  The axiomatic system of Euclidean geometry, for example, is valid per se, yet the question whether the world of our ordinary experience is correctly described by this geometry is a matter of empirical enquiry.

Analogously the supposition of an apex norm by itself does not justify the claim that the legal system under consideration is valid. Only the actual finding that the legal institutions are working on the basis of the norm system under consideration justifies a claim about the validity of the system.

The conclusion of this critical analysis is that the conception that a system of norms is a valid legal system has to be conceived of as an emprical finding of institutional existence.3

1. Such a distinction is problematic from a logical standpoint. Every condition that is necessary for a proof is an element of argumentation that cannot be reduced to a mere conditio sine qua non. Not all conditions sine qua non are necessary for a proof. Some of them are, and one can call them conditions per quam. The power-conferring norm is only one of such conditions.

2. Kelsen's exposition fluctuates between these views. If it is a hypothesis, the apex norm has to be tested; it is confirmed if and only if it can be grasped as an actually valid legal system. If the apex norm is a mere supposition, then it can be freely accepted or rejected.

3. Kelsen"s late conception expressed in the posthumously published book, edited by K Ringhofer and R. Walter, Allgemeine Theorie der Normen, Vienna 1979, leads to new problems that cannot be discussed here.