Validity of Legal Rules

A second, hotly debated question about jurisprudential methodology is whether first-rate legal theories are inherently evaluative. The above views on the correct purpose of first-order legal theories have different implications for this second question. But before explaining this, we must first clarify the issue. The moral dimension of law provides a standard of legal validity based on natural law. Blackstone`s natural law is based on the eternal and immutable laws of good and evil, to which the Creator conforms. God is a being of infinite power, infinite wisdom and infinite goodness. Although God endows man with reason and free will, man is still “completely dependent” on God. Man is subject to God`s law, and God`s law is natural law. Natural law is binding everywhere in the world, in all countries and at all times. No human law is valid if it is contrary to natural law, and valid human laws derive all their power and authority from natural law. From a moral point of view, the rules of recognition cannot in themselves be regarded as sources of the obligation to respect the law.

Whether judges or anyone else should abide by the rules of recognition of a legal system is ultimately a moral question that can only be resolved by moral arguments (as opposed to the age-old question of political obligation). And more generally, the existence of a social practice in itself does not oblige anyone to participate in it. The rules of recognition only define what the practice is, and they cannot say anything about whether one should participate in it or not. But, of course, as soon as you get involved in the practice and play the role of a judge or other legal official, so to speak, there are legal obligations defined by the rules of the game. In other words, the idea of a legal obligation to comply with the rules of recognition is nothing special. The referee of a football match is also required to follow the rules of his game, and the fact that the game is conventional does not pose any difficulty from the point of view of the player, for example. But here too, the constituent rules of football cannot clarify whether or not to play football. Similarly, the rules of recognition cannot determine for the judge or anyone else whether or not to respect the rules of law. They only tell us what the law is.

Unlike chess or football, however, the law can be a kind of game that people are forced to, so to speak. But if there is such an obligation, it must flow from external moral considerations, that is, from a general moral obligation to obey the law. The complex question of whether there is such a general duty to comply with the law and whether it depends on certain characteristics of the respective legal system is discussed in detail in the literature on political obligation. A comprehensive theory of the normativity of law must also include these moral questions. (See entries on political and legal obligations.) The historicist school emphasizes the historical dimension of law. The historicist school recognizes legal practice as the main source of applicable law. Custom law provides a standard of legal validity that imposes customary limits on the coercive powers of the political leader. Major historians include Sir Edward Coke, John Selden, Sir Matthew Hale and Sir William Blackstone. A final methodological view, which deserves to be examined separately for both its influence and sophistication, is that of Dworkin (Dworkin 1986). This view assumes that (i) the purpose of a first-rate legal theory is existing legal practice, and (ii) these theories are effective to the extent that they provide a defensible (Dworkin-sense) constructive interpretation of that practice. From the point of view of constructive interpretation, the purpose of a first-rate legal theory is not to analyze one concept or reduce legal facts to other, more fundamental facts.

Rather, the purpose of a legal theory is to reconstruct the behavior and self-understanding of participants in legal practice in a way that puts that practice in its best moral light. Therefore, the more effective a legal theory is, the more consistent it is with the evidence on how lawyers understand the practice in which they practice and the normative rationale for that practice (Dworkin, 1986; Perry, 1995, pp. 129-31; see also the entry on legal interpretation). Plato described Socrates as the bravest, wisest and most sincere man of his time. Plato planned a career in politics, but retired “in disgust” after seeing the Athenian courts “corrupt written laws and customs.” (Plato, Epistle VII, 325a-c). Plato reacted to Socrates` death by rejecting the Sophists, reviving the moral and historical dimensions of law, and formulating a norm of natural law of legal validity based on the principles of universal justice. Codes that take the form of declarations of general aspirations and are formulated in the form of fundamental principles are not directly legally binding. But even in this form, they have clear legal relevance. On the one hand, they provide an indication for the occupation of unregulated areas left open by legal regulations and therefore represent an important complement to the guiding function of the law.

Second, and more importantly, codes play an important role in interpreting grey terms in labour law, professional codes, and administrative and civil law regulations, when legal concepts as grey as “public morality”, “endanger the health of others”, “essential physical assets”, “prior art”, “product safety due diligence”, etc. need to be more clearly defined in relation to certain standards of accountability. These standards may be derived from the standards of the engineering profession if they are anchored in a corresponding code of ethics. Engineers can then refer to the Code when making decisions, and courts can follow code guidelines when interpreting grey legal terms. The historical dimension of the law dominates Blackstone`s jurisprudence. The common law is “the first cornerstone and principle” of the common law. Custom includes legal norms, such as the first-birth rule, which states that the oldest male descendant inherits the entire estate.