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Legal Validity: The Fabric of Justice

ISBN13: 9781849466868
Published: January 2019
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £60.00

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Legal reasoning settles morally pressing matters through a technique that largely bypasses open-ended moral argument. That technique makes central what certain persons validly decided in the past, for example in creating statutes, judicial resolutions, contracts, or wills. Identifying valid decisions is a lawyerly skill and, echoing legal practice, legal philosophy has paid considerable attention to validity criteria. But it has neglected to explore validity's point: whether, and if so exactly how, the special technique of validity contributes to a legal system's ability to realise justice and human rights. Even the most sensible defences of the moral need for positive law have insufficiently probed this key step in the argument.

This book lays bare the workings of legal validity, and shows why, and within what general limits, this technique equips legal systems with privileged tools to foster human well-being. In so doing, the book explains how power-conferring norms setting out validity criteria endow agents' intentions with 'performative' effect ('I hereby...') and can secure the requirement of justice that there be widespread convergence on specific patterns of conduct shaped through a cooperative effort. Legal meaning is accordingly systemic, resulting from the valid acts of multiple agents whose decisions can, by virtue of exercising legal power, also exercise moral power (authority).

In short, the book articulates why it is morally necessary that validity does not primarily turn on moral considerations.

1. Introduction: Why Legal Validity?
I. An Intriguing Fact
II. The Code Idea
III. A Neglected Question

2. Legal Power
I. The Task Ahead
II. Facilities to Change Legal Positions
III. Super-Tramp
IV. Raz’s Take
V. Facilities Revisited, or Robert’s Home Move

3. Intention in Valid Acts
I. Four Peculiar Traits
II. The Technique of Communication
III. Codes, or How to Speak Your Mind
IV. Back to Law
V. Valid Acts That Invoke a Legal Regime
VI. Valid Acts That Circulate
VII. Unintentional Valid Acts
VIII. Failed Attempts
IX. The Technique of Legal Validity

4. Justice and Convergence
I. Duties of Justice
II. Specific Convergence
III. The Scope of Specific Convergence
IV. Marking and Enforcing
V. Law’s Marking: Legal Validity
VI. Two Levels of Convergence

5. Reasons to Empower
I. Empowerment
II. Expertise and Capacity
III. Proximity
IV. The Rule of Law: Rulings
V. The Rule of Law: Rulings About Validity
VI. The Rule of Law: General Law-Making
VII. Self-Direction

6. The Systemic Character of Legal Meaning
I. The Moral Need for Law’s Positivity
A. Determinacy
B. Ease of Identification
C. Targeted Crafting
II. The Systemic Character of Legal Meaning
III. A Function of the Acts of Others
IV. Legal Meaning Through Time
V. A Single Author?
VI. Threads in a Fabric

7. Conclusion: The Fabric of Justice
I. The Strength of Limited Power
II. Validity’s Spell"

Series: European Academy of Legal Theory Series

£58.50 + £11.70 VAT
£34.18 + £6.84 VAT
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