Advertisement

What Is Legal Validity? Lessons from Soft Law

  • Jaap Hage
Chapter
Part of the Law and Philosophy Library book series (LAPS, volume 122)

Abstract

The purpose of this article is to use the elusive phenomena of legal validity and soft law to illuminate each other. Three notions of legal validity are distinguished. Source validity and binding force (in a special technical sense) are internal legal notions that are used in legal argumentation. On the contrary, efficacy (also in a special technical sense) is an external notion, used in descriptive theories about law such as sociology of law or legal theory. Source validity is a characteristic of, among others, legal sources, and something was validly made in this sense if it was made by a competent agent in accordance with the relevant procedure. A rule has binding force if this rule exists and generates legal consequences when applied. A rule is efficacious if its consequences are accepted by the relevant legal subjects, including officials.

With these three notions of legal validity in place, the focus of the argument shifts to the nature of soft law and how it combines with the three notions of legal validity. For a proper analysis of soft law, three elements are required. First, it is necessary to replace the traditional rule-based view of legal reasoning by a view in which reasons, rather than rules, take the central place. For this purpose, a special logic for reasons, reason-based logic, is introduced into the argument. Second, it is necessary to replace the view of legal justification, according to which justification consists of an argument with the object of justification as its conclusion, with a view that emphasizes the dialogical nature of justification. For this purpose, a dialogical variant of reason-based logic is briefly explained. And third, the view of legal reasoning as a reconstruction of legal effects that exist independently has to be replaced by a constructivist view, according to which legal consequences are determined by means of legal argumentation.

On the basis of these three changes of perspective, the definition of soft law as law that can less easily be used in legal argumentation becomes understandable. Moreover, the tools that have become available by the introduction of the three notions of validity, dialogical reason-based logic, and constructivism make it possible to identify different reasons why legal rules may be soft: limited applicability, dubious binding force, frequent exceptions, and weak reasons for the rule consequences.

Keywords

Applicability Balancing Binding force Commitment Constructivism Dialogs Contributory reasons Efficacy Exceptions Exclusionary reasons Reason-based logic Rule-based logic Soft law Source validity 

Notes

Acknowledgements

The author thanks Stephan Kirste, Anne Ruth Mackor, Pauline Westerman and Mark Rogers for useful comments on earlier versions.

References

  1. Alexy, Robert. 1994. Theorie der juristischen Argumentation. 7e Auflage. Frankfurt a/M: Suhrkamp.Google Scholar
  2. ———. 2002. The Argument from Injustice. A Reply to Legal Positivism. Oxford: Oxford University Press.Google Scholar
  3. Dworkin, Ronald. 1978. Taking Rights Seriously. 2nd ed. London: Duckworth.Google Scholar
  4. ———. 1986. Law’s Empire. London: Fontana.Google Scholar
  5. Fuller, Lon L. 1963. The Morality of Law. rev. ed. New Haven: Yale University Press.Google Scholar
  6. Grabowski, Andrzej. 2013. Juristic Concept of the Validity of Statutory Law. A Critique of Contemporary Legal Nonpositivism. Berlin: Springer.CrossRefGoogle Scholar
  7. Hage, Jaap. 2015. The (Onto)logical Structure of Law: A Conceptual Toolkit for Legislators. In Logic in the Theory and Practice of Legislation, ed. M. Araszkiewicz and K. Pleszka. Cham: Springer.Google Scholar
  8. Hage, Jaap C. 1997. Reasoning with Rules. Dordrecht: Kluwer.CrossRefGoogle Scholar
  9. ———. 2012. Legal Reasoning and the Construction of Law. i-Lex 7 (16): 81–105. http://www.i-lex.it/us/previous-issues/volume-7/issue-16/103-legal-reasoning-and-the-construction-of-law.html.Google Scholar
  10. Hart, H.L.A. 2012. The Concept of Law. 3rd ed. Oxford: Oxford University Press.CrossRefGoogle Scholar
  11. Kelsen, Hans. 1960. Reine Rechtslehre. 2nd ed. Wien: Franz Deuticke.Google Scholar
  12. Leiter, Brian. 2014. Naturalism in Legal Philosophy. In The Stanford Encyclopedia of Philosophy (Fall 2014 Edition), ed. Edward N. Zalta. http://plato.stanford.edu/archives/fall2014/entries/lawphil-naturalism (last consulted on 28-01-2016).
  13. Lodder, Arno. 1999. Dialaw. On Legal Justification and Dialogical Models of Argumentation. Dordrecht: Kluwer.Google Scholar
  14. MacCormick, Neil. 1978. Legal Reasoning and Legal Theory. Oxford: University Press.Google Scholar
  15. Munzer, Stephen. 1972. Legal Validity. Den Haag: Martinus Nijhoff.CrossRefGoogle Scholar
  16. Pollock, John L., and Joseph Cruz. 1999. Contemporary Theories of Knowledge. 2nd ed. Lanham: Rowman and Littlefield.Google Scholar
  17. Prakken, Henry. 1997. Logical Tools for Modelling Legal Argument. In A Study of Defeasible Reasoning in Law. Dordrecht: Kluwer.Google Scholar
  18. Raz, Joseph. 1975. Practical Reason and Norms. London: Hutchinson.Google Scholar
  19. ———. 1979. The Authority of Law. Oxford: Clarendon Press.Google Scholar
  20. Ross, Alf. 1946. Towards a Realistic Jurisprudence. Copenhagen: Einar Munksgaard.Google Scholar
  21. ———. 1959. On Law and Justice. Berkeley: University of California Press.Google Scholar
  22. Sartor, Giovanni. 2005. Legal Reasoning. A Cognitive Approach to the Law. Dordrecht: Springer.Google Scholar
  23. Verheij, Bart. 1996. Rules, Reasons, Arguments. Formal Studies of Argumentation and Defeat. Dissertation University of Maastricht.Google Scholar

Copyright information

© Springer International Publishing AG, part of Springer Nature 2018

Authors and Affiliations

  1. 1.University of MaastrichtMaastrichtThe Netherlands

Personalised recommendations