In this paper I will attempt to define the notion of validity of law with
respect to three different legal theories: natural law, legal positivism,
and legal realism. I will then explore advantages and disadvantages of
these definitions. Finally, I will attempt to formulate my own definition
of legal validity based on the definition offered by legal positivist H. L.
A. Hart.
I will define validity of a law as ``the act of being effective or binding, or having legal force'' (American Heritage Dictionary). This notion of validity is closely related to that of obligation. It is sometimes necessary to make a distinction between moral validity and legal validity. For the purposes of this paper, when I refer to simply validity I mean legal validity.
I begin by addressing a central question in the philosophy of law: Is there a relationship between legal and moral validity, and if so, what is it? One theory, natural law theory, is based on the thesis that there is an essential, necessary connection between law and morality. Natural law derives its name from the notion that morality is part of a fixed, natural order. According to natural theory, a law is necessarily morally permissible by virtue of being a law (Murphy & Coleman, 11-13).
It follows, then, that moral validity is a logically necessary condition for legal validity. For the natural law theorist, without moral validity, there can be no legal validity. Thus, as is attributed to St. Augustine, ``an unjust law is no law at all'' (Aquinas, Schauer & Sinnott-Armstrong, 13). That is, if a man-made law goes against the higher code of morality, following the man-made law is in no way obligatory. According to Thomas Aquinas, any human law that `` departs from the law of nature ... is no longer law'' (Aquinas, SSA, 13). William Blackstone echoes Aquinas, saying that human laws have no validity if they contradict this higher law of nature (SSA, 10).
One might then suppose that for a natural law theorist the question of when a law is legally valid reduces to the question of when a law is morally valid. But when is a law morally valid? This is not a question to which natural law theorists devote much time because they consider morality to be fixed and known naturally, or innately, to all men. Moral validity, then, is intuitive.
Although natural law theorists claim that moral validity is necessary for legal validity, it does not directly follow that moral validity is sufficient for legal validity. According to Aquinas, for a law to have binding force it must be made known, or promulgated (Aquinas, SSA, 13). Aquinas also says that a law may be unjust (and therefore invalid) by ``being contrary to human good'' (Aquinas, SSA, 14).
Lon Fuller addresses the validity not of laws, but of systems of law. For a system of law to be valid, it must satisfy at least the following criteria: rules must be decided and promulgated in an understandable way in advance of being enforced, and rules cannot be contradictory, applied retroactively, or otherwise impossible to follow. Any system which fails to meet these criteria, says Fuller, is not a system of law (Fuller, SSA, 21).
According to natural law, the force of validity, even for legal systems themselves, stems from morality. As Joseph Raz says, ``According to natural law theories there is no specific notion of legal validity. The only concept of validity is validity according to natural law, i.e., moral validity'' (Finnis, SSA, 16).
I turn next to the theory of legal positivism. In contrast to natural law theory, legal positivism asserts that there is no necessary correlation between legal validity/invalidity and morality/immorality. Laws are not facts of nature to be discovered; instead they are rules posited by men. Legal positivists such as John Austin and H. L. A. Hart are concerned with law as it is. They see law as being fundamentally a social fact (SSA, 29).
It is important to note that legal positivism does not deny the existence of a correlation between law and morality; rather, it claims that morality is not necessary for legal validity. Here there is an analytical/normative (is/ought) distinction. Ideally, there ought not be any immoral laws, but if any do exist, says the legal positivist, they are still obligatory laws. According to legal positivism, there is nothing contradictory about the existence of immoral laws. There are several different theories of legal positivism. I will now consider those of Austin and Hart separately.
According to Austin's theory, known as command theory, a proposition is a command if it expresses the desire of the commander (sovereign), a sanction is to be incurred if the desire is not met, and this is all expressed by the commander to those upon whom the desire is wished. A law is a particular type of command that ``obliges generally'' (Austin, SSA, 34-35). The ideas of command and duty are inseparable for Austin. One possible statement of Austin's definition of validity, then, is that a law is valid if and only if it is a desire commanded by a followed sovereign and backed up with a threat of sanction (``Philosophy of Law'', utm.edu).
Austin's theory is rather limited in scope. Command theory seems to only apply in sovereign nations, and even then only in particular instances. Responding to Austin, Hart outlined a concept of law which is relevant to modern democratic societies. I find Hart's positivistic theory significantly more compelling than that of Austin. Hart believes that Austin is concerned with what he calls primary rules, or rules that impose obligations on the members of a society (MC, 28). Hart's insight is to add to these rules a class of secondary rules, or rules about rules, which impose obligations on the officials of a society. Secondary rules include rules of adjudication, rules of change, which define how laws are to be modified, and a rule of recognition. The rule of recognition identifies the actual rules of a society (MC, 30). For example, the Constitution is the rule of recognition in the United States.
One way in which Hart's theory differs from Austin's is that commands are not issued by sovereigns; commands stem from the rule of recognition. The social fact or pedigree thesis states that validity is defined in terms of this rule of recognition. ``To say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition'' (Hart, SSA, 46).
But then how are we to determine the validity of the rule of recognition? Hart tells us that the rule of recognition is an ultimate rule; there is no rule for determining its validity (Hart, SSA, 47). Instead, the validity of the rule of recognition is a social fact and has no meaning beyond that of acceptance (SSA 31-32). According to the conventionality thesis, a rule of recognition is binding whenever there is a social convention among officials to treat it as defining the standards of official behavior (UTM).
To summarize, the legal positivist's definition of validity consists of two parts. First, primary rules of conduct are valid according to the definition of validity given by the rule of recognition. Second, the rule of recognition ``must be effectively accepted as [defining the] common public standards of official behaviour by its officials'' (Hart, SSA, 48).
Legal positivism is open to much criticism. The natural law theorist is not at all satisfied by legal positivism because legal positivism may admit legal validity to immoral laws. This objection to legal positivism is one that even those who do not subscribe to natural law theory can understand. It is unsettling that when a system of law includes immoral laws, we are still obligated to follow them, independent of their content, simply because they are laws. This means that we are sometimes legally obligated to act in ways that are, or that we consider to be, immoral.
I do not see any way to resolve this potential problem without introducing even greater problems. Natural law theory, which is immune to this problem, depends on a fixed morality for a society which is known to the members of the society. But I do not believe that such a morality exists; instead, I think that morality is subjective. For example, some people find it immoral to extend rights to homosexuals, whereas, at the same, other people believe that it would immoral not to extend rights to homosexuals. Clearly both sets of morals cannot be represented in a consistent legal system (MC, 16). To speak of a morality for a given society there would have to be a set of morals which the society would adopt, and there is no way to accurately represent the distinct moralities of members of the society to derive a set of laws which will be morally valid for all those concerned.
Alternatively, instead of having one set of morally valid laws, each person could follow those laws which he/she found to be consistent with his/her morals and disregard those which were inconsistent. Then, however, every law becomes optional, and people can choose to break laws because they go against their personal moral preferences, their likes and dislikes. This would lead to the dissolution of a system of law entirely. Thus, the non-optional obligation of law can be seen as a necessary feature of legal positivism. As the positivist asserts, a law is a law, even if we do not like it or if we believe that its content is immoral (Austin, SSA, 38). To think otherwise would lead to the state of anarchy described above. A law is a law by definition, and at best a system of law admits few immoral laws and allows for such laws to be repealed from within the system.
A third theory, legal realism, asserts that law is not what is known or written, but what is practiced. The concept of validity makes less sense with respect to legal realism, but I will consider very briefly what classical legal realists such as Karl Llewellyn and Duncan Kennedy would define as legal validity. Like legal positivism, legal realism asserts that validity is a social fact. Legal validity comes not from written laws though, but from what legal officials do and, in particular, what judges decide. Written laws are merely a prediction of what judges will decide (Llewellyn, SSA, 57). Much as in some games the official score is whatever the referee says it is, law, for moral realists, is whatever judges say it is (Llewellyn, SSA, 60).
I have just outlined the definitions of validity offered by these three theories. Of these definitions, I find Hart's assertion that a law is valid if and only if it satisfies the criteria of an accepted rule of recognition to be the most compelling. I believe that legal validity is necessarily a social fact. However, this definition of validity and the principles of legal positivism leave me with numerous concerns. I will discuss two of these, which I think point to strengths of the natural law theorist's and the legal realist's definitions of validity respectively. First, I am bothered by the possibility for conferring validity on immoral laws. Second, I believe that legal positivism fails to adequately recognize the role that enforcement, or believed enforcement, plays in legal validity.
Returning to the objection of natural law theorists, how can we say that an immoral law is legally valid? To do so would allow such acts as slavery, segregation, and Nazism to be obligatory in particular societies (MC, 9). It means legally binding people to take part in actions which may go not only against their morals, but against the common morals of a significant percentage of their society. It is perhaps too easy for the modern American legal positivist to respond that laws are laws until such time as they are abolished or amended. But there are many legal systems in which there is either no procedure for change or such a procedure is inaccessible to some members of the society. How can we resolve this difficulty? One way would be to consider the laws of such legal systems to be invalid.
We are now considering the validity of entire systems of law, rather than the validity of particular laws based on their content. To Hart's definition of legal validity, I would like to add the clause ``and the entire legal system is considered to be valid''. According to Hart's theory, the system of law is governed by a set of secondary rules, and these rules would have to be valid. But I think there may be additional requirements for a legal system to be valid. I propose that the definition of validity of a system includes a notion of fairness. I will not rigidly define this fairness here, but by it I refer to a system in which the people who are governed by the laws have a role in making and amending the laws. A fair legal system would also allow for civil disobedience. Such procedures would be defined in what Hart calls rules of change (Hart, SSA, 42).
Another issue that concerns me, and which motivates my interest in legal realism is whether the notion of legal positivism inaccurately attributes validity to laws by virtue of them being written laws. In what sense is an antiquated, unapplicable written law valid? Here it seems that legal realism is correct to assert that law is the law as it is practiced.
A law need not be out-dated to be unenforced. We are regularly in situations in which certain laws are not, or are only seldom, enforced. For example, certain traffic laws may not be enforced in particular locations or situations. According to legal positivism, we are still obligated to follow these rules. The source of this obligation is simply that the traffic laws are laws. But I think that this alleged obligation is not binding for many people. Some people may abide by the law not because they feel any sense of duty, but out of fear of repercussions. Others may ignore such laws entirely. Some may believe that such an unenforced law is no law at all. The idea that an unenforced law being is valid, then, does not seem to accurately describe real obligation.
I believe it is too simplistic, though, to say that a law is valid only if it is enforced, for it is not the enforcement with which we are concerned, but the belief of enforcement. I propose, then, that a law must be known to be enforced in order for it to be valid. Members of the society must accept not only that a particular law is a law, but that it is recognized as a law by officials. I am then tempted to conclude that for legal validity not only must the rule of recognition and all primary rules be accepted by the officials, but these rules must be accepted by the society. They must be enforced or believed to be enforced by the society.
But what does it mean to say that rules are ``accepted by the society''? One person might believe one rule is valid that another person does not. This assertion was part of my earlier criticism of natural law theory which led to the conclusion that a system of valid laws might consist of no laws at all. The answer to this question is beyond the scope of this paper, but I believe it lies in some form of social contract theory, which claims that there is an obligation to obey laws because there is an agreement (possibly implicit) to do so (MC, 18). The question of whether a law is believed to be enforced, then, reduces to the question of whether there is a societal expectation that the law will be followed and that if it is not, the lawbreakers will be punished. Law, it seems, is a social fact involving the expectation that rights will be protected. As this discussion has made clear, the proposed amendment to the definition of validity is not unproblematic, but I believe it points us in the right direction to better understand the requirements of legal validity.
In conclusion, I would like to slightly modify Hart's positivistic definition of validity - that a law is valid when it is defined as valid by a rule of recognition which is accepted by officials. In addition to Hart's criteria, I believe that for a law to be valid the system of law of which it is a part must itself be valid. For a system of law to be valid, the rule of recognition must be accepted by not just the officials, but by the society generally, and the members of the society must have the ability to change the laws which will govern them. This may be best modeled by some form of social contract theory. As I have shown, this amendment provides a strengthened definition of validity which deals with some of the common objections of natural law theorists and legal realists.