Legal Validity

Question 0

Austin’s Pedigree Thesis

Answer 0

Legal rules are valid if:
Rule was commanded by sovereign
The sovereign is habitually obeyed by people
They’re backed by a force of sanction.

Question 1

Legal Positivism

Answer 1

Existence and validity of law are fundamentally social, law is synonymous with social norms.
Pedigree thesis - the merits of a law don’t matter, its social facts do
Separation thesis - law and morality not necessarily connected
Discretion thesis - judges decide hard cases by creating law.

Question 2

Hart’s Pedigree Thesis

Answer 2

Validity of the law can’t relate to force, legal rules are duty imposing and power conferring, validity of laws derives from custom, social conventions determine facts/events which lead to legal rules, rule of recognition provides the ultimate criteria for validity, inclusive positivism - some legal systems have a RoR with moral content.

Question 3

Raz’s Pedigree Thesis

Answer 3

Law is an authoritative social institution - the role of authority is to mediate between a person and their reasons. Rules are only valid if they provide an exclusionary reason (a reason not to act). Exclusionary positivism - Moral considerations should not be used in decisions about legal validity.

Question 4

Natural Law Theory

Answer 4

Legal validity derives from moral considerations.

Question 5

Finnis’ Natural Law Theory

Answer 5

Law functions to provide rules which solve problems which arise in the pursuit of basic goods (such as family life). No necessary moral test for legal validity.

Question 6

Fuller’s Natural Law Theory

Answer 6

Law’s purpose is to achieve social order through rule based behavioural guidance.