Validity Versus Applicability: A (Small) Dose of Scepticism

Abstract

Analytical jurisprudence has grown fond of a distinction between the notion of validity – understood as the membership of a norm within a given legal system – and that of applicability. A norm’s membership within a legal system is neither a sufficient nor a necessary condition of its applicability in that system. This article takes issue with the non-sufficiency component of this distinction, and raises some doubts about it. During the latency period in which a legal norm is valid but not yet applicable, or not applicable anymore, it is difficult to ascertain what, in fact, does belong to the legal system: how can a non-applicable norm be a “norm” in the first place and give its addressees any reason for action? There is indeed a danger of undue formalism here: a norm’s formal validity should not be confused with its normativity. The last part of the paper tries to deal with these doubts and to adumbrate tentative solutions. It shows that a norm’s membership within a legal system does have practical effects regardless of its applicability; and it tries to show that it sometimes can give its addressees reasons for action in some attenuated way.

Keywords: Legal Validity, Applicability, Reasons, Supererogation, Rule of Recognition