Incidentally, the topic of validity is an example of a certain degree of insulation sometimes displayed by Anglo-American jurisprudential scholarship vis-à-vis its continental and Latin American counterparts. Consider again the paradigmatic statement by Raz (1979, p. 146), for whom a rule that is not legally valid is not a legal rule at all. Like many others in Anglo-American scholarship, Raz identifies the validity of law with its existence. Only valid law belongs to the legal system; invalid law does not. In this regard, laws are like stones: “a non-existent stone is not a stone, though we can talk about such stones and describe some of their properties as we can do about invalid rules” (Raz 1979, p. 148). But is an invalid law necessarily not “law”? Intuitively, one can point to all those instances in our current legal systems in which invalid legal acts—like statutes or administrative measures—may still yield normative consequences, at least until the moment when they are annulled or repealed by a court. These acts, albeit invalid, do belong to the legal system—they have some relationship or status within it (Guastini 2013, p. 132).
While the distinction between the existence and the validity of law has come to the fore of Anglo-American scholarship only very recently,Footnote 26 it has instead been accepted and discussed for quite some time in continental and South American scholarship, following the seminal work of scholars such as Eugenio Bulygin, Luigi Ferrajoli, and Carlos Nino. These scholars have pointed out that Kelsen’s conflation of the existence of a legal norm with its validity conceals what amounts to the key innovation brought about by modern constitutional systems, namely the very possibility of existence of what has been aptly termed by Ferrajoli (2007) “unlawful law,”Footnote 27 something that would amount to a contradiction in Raz’s (and Kelsen’s) theory.Footnote 28 Yet this constitutes possibly the most striking feature of modern juridical phenomenology: it points to the fact that there are limits to what even the highest legislative authority in a legal system can do—and these limits are legal ones, as established in some sort of constitutional settlement (usually codified and entrenched but not necessarily). As such, there are some things that as a matter of law the legislator cannot do (Grellette 2010, pp. 26–31): an idea simply unentertainable if we consider the idea of sovereignty as expressed by Bodin (1586) with the idea of potestas legibus soluta and that still nowadays proves hard to reconcile with the principle of parliamentary sovereignty in English constitutional scholarship.Footnote 29
4.1 Formal and Material Validity
Only by distinguishing between the existence and the validity of law can we truly understand the meaning of the latter—a property that refers to the conformity of both acts and norms to the hierarchically superior norms governing their production. As already mentioned, in its most general understanding, the property of being “valid” indicates the state of being in accordance or conforming with something. The first step toward understanding how “unlawful law” is even conceivable is to recognize that in institutional-normative systems, validity (as conformity) can assume two different dimensions, the formal and the material one. According to Pino (2014, p. 207), the former pertains to
the attainment of the formal/procedural conditions regarding the exercise of law-making power, according to which a certain text can be considered as a legal source. Formal validity usually coincides with a successful “enactment”, and it can be ascertained by means of a factual inquiry about the realization of the relevant law-making procedures (italics mine).
Hence, a bill that is not approved by the Italian Parliament following the prescribed procedure (for instance, a constitutional bill that is approved through the ordinary legislative procedure) is not formally valid, and the Italian Consulta (the Constitutional Court) can quash it (article 136 of the Italian Constitution). Another fitting example is that of a written contract that is lacking one of its essential elements, such as the signature of one of the contracting parties (when this is required by law). Material validity, instead,
obtains when a legal norm is coherent (or at least not conflicting) with the relevant higher-rank legal norms. Plainly, material validity is not a matter of fact, but a matter of interpretation: it depends on the content, on the meaning of the relevant norms. More precisely, it requires interpreting both the norm whose validity is to be ascertained, and the (higher) norms that act as the parameter for the validity of that norm (Pino 2014, p. 208).
Going back to the example of a statute, if the normative content of a formally valid statute violates one of the provisions in the Italian Constitution—for instance, by unduly limiting the freedom of the press to publish news about the current government—then the Consulta will be able again to strike the statute down. The same applies, mutatis mutandis, in the case of contracts: if a contract, for instance, has an illegal purpose (the infamous contract for murder), no judge will hold that contract valid and enforce it. It is important then to stress how formal validity and material validity work on different levels, pertain to different objects, and are a product of different epistemic endeavors.
As Table 1 illustrates, formal validity pertains to normative sources—acts—and requires the attainment or application of certain formal/procedural conditions to validly exercise a power recognized by the law.Footnote 30 As such, it is ascertainable through an empirical enquiry (whether the bill has received royal assent, for instance).Footnote 31 Material validity, on the other hand, pertains to norms themselves and requires (at least) the noncontradiction between the content of norms so produced and the relevant, higher, norms. If we look at our current legal practices, this first distinction seems rather uncontroversial. What happens, though, when an act is formally valid but the norm so produced is not materially so?
4.2 Formally Valid but Not Materially So—The Mysterious Status of “Unlawful Law”
We have seen that for several Anglo-American legal theorists who have been following Kelsen on the point, validity is existence and hence validity is bindingness. As has been shown instead by those scholars who warn of the unsatisfying theoretical implications of Kelsen’s thesis (Munzer 1972; Ferrajoli 2007; Grellette 2010; Guastini 2016), this “flattening” of validity with existence leads to a variety of explanatory shortcomings that leave an important amount of legal practice unsatisfactorily unaccounted for. This discussion has taken place mostly at the constitutional level when some sort of “constitutional entrenchment” is present in a given legal system. Interestingly, the distinction between formal and material validity is operatively present even in common law jurisdictions where such constitutional entrenchment is missing—for bylaws, administrative acts, and contracts can all have either formal/procedural or material requirements. Yet its general importance and role as to the ontological status of legal norms in our modern systems has been manifestly undertheorized. Validity in the formal sense only obtains when all the formal requirements on the production of a given act (a contract, a statute, a judicial decision, or a will) are attained by the agent(s) in producing it. Guastini (2013, p. 132) aptly reminds us that, “in lawyers’ talk,” validity means precisely the absence of “vices.”Footnote 32 But what about the case in which only some of those formal/procedural requirements are attained?
Take the example of a will: a clear formal requirement for a will to be valid is that it is signed (often necessarily in front of some witnesses) by its testator. Now, think about a will whose signature has been forged—it was signed not by its testator but by her nephew, who also (coincidentally) appears to be now the beneficiary of the entire estate. The will looks like a formally valid one to the nonexperts—only an experienced calligrapher would be able to ascertain that it was not actually signed by the supposed testator. It is hard to deny that, until the moment in which a judge declares the will invalid because it lacks one of its essential formal requirements, that will exists—that is, it belongs to the legal system. For one thing, the nephew might have brought some possession claims on the estate on the basis of the forged will. Unless the legitimate heirs to the estate can somehow prove immediately that the will is forged, it is likely that the court will, prima facie, grant the nephew possession of the estate. But even more to the point, the very fact that a court takes the will into consideration and declares it invalid implies in the first place that some type of act that is intelligible as having a juridical meaning (Ferrajoli 2007, p. 528) must have been produced and hence, for this fact, exists for the legal system. This seems also confirmed by the traditional definition of a nullity in law as an act that must be treated as if it had never existed or taken place. This logically implies that for a certain amount of time, and precisely from the moment t0 of creation to the moment t1 of declaration of nullity by the judge, an act juridically meaningful existed for the legal system.Footnote 33
When is it that a will does not even exist for the law then? If we observe our juridical practices, that would be when such a supposed will lacks even some of those foundational requirements that allow for its very recognizability as a juridical (type-)act—for instance, a will that lacks the written form. If someone were to tell me in person that she wants to leave her estate to her older child but not to the younger, reckless one, I would never take that to be a speech-act that has any legal relevance whatsoever. Even though my friend is genuinely moved by the desire to make her intentions regarding her estate manifest, no one in her sound mind would take such a speech-act as constituting an enforceable legal act. In other words, the requirement of the written form is so fundamental when it comes to the concept of a will that in its absence there is really nothing we can talk about from the legal point of view.Footnote 34
4.3 The Artificial Ontology of Modern Law
The discussion above points to a key aspect of the difference between juridical existence and nonexistence in modern legal systems. For the vast majority of legal acts (contracts, statutes, administrative and judicial decisions, wills, etc.), most of their necessary requirements to exist in the legal system will be knowable and ascertainable by laypeople and not by legal officials only.Footnote 36 Anticipating my main claim in the next section, the point is that we can shed light on the complex ontological status of modern law only if we bring to the surface the underlying epistemic issues. Whether a norm belongs prima facie to the legal system or not must be, in normal situations, tendentially knowable and ascertainable by rational and linguistically competent agents in the system. This amounts to a necessary condition—given the practice-independence of legal norms—for law to be tendentially objective and thus able to guide the conduct of its addressees.Footnote 37
Whether a feasible inheritance intention has been expressed in written form is something that any person of sound mind can ascertain, and so is whether the document has been signed or not.Footnote 38 The same applies, mutatis mutandis, to statutes: if the British Prime Minister were to publish a Facebook post with a list of general rules addressed to the public and claiming these were new statutory law, one would take her as either
reporting a very recent legislative development no one has ever heard of; or
The point is that no one would think that her speech-act could possibly constitute a statute or legislative provision, and if someone did, well that someone would arguably lack the very concept of a statute.Footnote 39 Whether a bill has been correctly approved by a given parliamentary commission or whether the signature at the bottom of it by the monarch or the president of the republic is present or not is again an empirical question that can in principle be answered by a great many people in our modern legal systems.
In short, the distinction between (mere) existence and formal validity of an act is premised on the observation that existence requires the application of some of the essential formal norms on the production which make the ensuing (product-)act juridically intelligible to every rational and linguistically competent agent in the system.Footnote 40 If that act also contains a norm formulation that expresses a deontic sentence, we can say then that a new norm that belongs prima facie to the system has been created. An act that exists for the legal system yields a juridical meaning that is recognizable as such by laypeople and officials alike. It might be lacking some formal elements that are necessary to be considered formally valid, or its content might contradict some higher norm and thus be materially invalid, but at this stage it is still the case that upon the mere attainment of some formal/procedural requirements, this act has the potential to produce a change in the normative landscape of its addressees.Footnote 41 It is prima facie a source of law.
Table 2 below illustrates the complex ontology of modern law,Footnote 42 which is the result of the fundamental distinctions between acts (as containing norm formulations) and norms (as the meaning of those acts) and between their respective existence and validity. According to this model, validity can be predicated of two different entities: of acts (formal validity) and of norms (material validity). The former is (predominantly) a matter of empirical conformity, the latter of interpretive coherence or noncontradiction (Ferrajoli 2016, p. 85). This means that every time someone refers to law as being valid with no further specifications, she usually means the combination of both—a statute is valid only insofar as it is so both formally and materially. This consideration allows us also to make intelligible the status of “unlawful law”: that is, all those statutes, regulations, bylaws, judicial decisions, and so forth that albeit extant within the system might be actually invalid. As such, the existence of a legal norm (and of the act by which it is expressed) does not imply its validity. Existence is a necessary but not sufficient condition of validity.
Two remarks are in place at the end of this section. Interestingly (and perhaps ironically, given that this chapter is premised on a critical reading of this author), each of the remarks seems to vindicate an important intuition by Kelsen. First, the analysis shows in what sense validity can be conceived of as the specific mode of existence of legal norms vis-à-vis social and moral ones. Once validity is “released” from its normativist declination, we are able to appreciate that “valid” is a second and “artificial” ontological status that legal norms—qua formal or institutional—can entertain beyond that of “existence.” In this sense, validity is a property that originates necessarily from the institutional character of a system of normsFootnote 43—it is a relationship between norms and the acts that create them (Pino 2016, p. 106). This is the way in which law regulates its own creation, which for Kelsen is precisely one of the distinguishing features of law in respect of other normative systems.
The second and generally undertheorizedFootnote 44 point that our analysis underscores is that, in our modern legal systems, a norm has force of law already with the mere existence of the act that produces it and not just with its (full) validity. Granted, it is necessarily a prima facie force, or, to put it more aptly, there is a presumption of force of any norm produced by an act that exists within the system.Footnote 45 That presumptions only stands until a norm is scrutinized by a court as the court will not enforce invalid norms, only valid ones.Footnote 46 But it appears as an undeniable descriptive truth about our legal practices that, until an invalid act is brought before a relevant official for the authoritative declaration of its invalidity, such an invalid act might nonetheless produce normative effects like the equivalent valid one.Footnote 47 Hence, pace Kelsen, validity and force of law are independent properties that do not entertain any relationship of entailment. An invalid norm, as long as the act producing it exists for the system, can exert force of law, and if it goes unchallenged, the normative consequences thus produced might stand (Grellette 2010, p. 28). This also explains why modern legal systems allow claimants who wish to challenge the validity of a given act to seek “interim injunctions”—measures with which a court might crystallize the (normative) status quo while the legal proceedings unfold and until a decision is taken on the validity of the act in question. This central feature of our current legal practices would make no sense if invalid acts were to be considered nonexistent (and thus unable to produce any effect whatsoever).