Punishment, Invalidation, and Nonvalidation: What H. L. A. Hart Did Not Explain

Richard Stith

Valparaiso University School of Law


Legal Theory, Vol. 14, No. 3, 2008

Elaborating first upon H. L. A. Hart's distinction between imposing duties and imposing disabilities, this article explores the two senses mentioned (but not fully explained) by Hart in which power-holders may be legally disabled. Legal invalidation (nullification) of norms that have been generated by vulnerable power-holders is seen to reduce diversity or pluralism in every normative sphere, from the supranational to the intrafamilial. By contrast, mere legal nonvalidation (noncognizance) of such norms tends to preserve the autonomy of the power-holders that created the norms, thus enhancing legal pluralism. Punishment for creating forbidden norms amounts in principle to an in-between sort of control, less restrictive than completely invalidating them but more restrictive than just not validating them, that is, just ignoring them. Illustrative examples include the European Court of Justice's early use of invalidation to convert an international treaty into a supranational constitution, and the subtle effects of legal nonvalidation of same-sex marriage.

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Date posted: April 8, 2011  

Suggested Citation

Stith, Richard, Punishment, Invalidation, and Nonvalidation: What H. L. A. Hart Did Not Explain (2008). Legal Theory, Vol. 14, No. 3, 2008. Available at SSRN: http://ssrn.com/abstract=1804327

Contact Information

Richard T. Stith (Contact Author)
Valparaiso University School of Law ( email )
656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States
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