Validity

Abstract

Validity is the qualifying label of the norms in law and the acts executed in the name of the law, according to and by the force of which the norms and acts in question are recognised as the norms and the acts, respectively, of the prevailing legal system. This concept of validity, defining membership within the system, is simultaneously completed by a concept of validity that selects and identifies the system itself. Accordingly, validity is also the qualifying label of the system itself, according to and by the force of which the system in question is recognised by the law and order of the international community as one of the national legal systems. Modern legal development has formalised and processualised the early form of validity, bound to the proof of “good old” contents. Then the staticism and logicism of the Kelsenian and Hartian vision of a hierarchical pyramidal breakdown of the law’s edifice has been challenged by the dynamic view of the circular and horizontal building of validity. The interdepence of validity and efficacity is analysed within the neokantian dichotomy of Is and Ought, with reference to the dichotomy of positivism and sociologism in jurisprudential thought. Finally, autopoiesis is exemplified by the realist and pragmatist perspectives in characterising validity as a symbol, marking the law’s boundaries by ideological means. All in all, our understanding of validity is described in function of our conception of law.

Keywords: validity substantive, formal, dynamic, static, realism, pragmatism, consensualism

JEL Classification: K00