Axiological Validity
Axiological validity is often connected to so-called natural law. In doing so, values such as justice are not merely the moral yardstick of a given (positive) legal system, they form the basis that gives the system of norms its legal force.
There is also another side to the matter. This is seen if the question is rephrased as follows: Why has legal norm N, formally valid in society X, systematically remained unapplied?One answer may be that N - even though it has not been formally repealed - no longer corresponds to the generally accepted system of values. All legal norms that are formally valid do not have a guarantee of axiological validity (Wroblewski 1992, 79). In principle, it is possible that a certain norm is regularly applied by an authority but still it stands in conflict with the generally accepted value code. Such a norm is both formally valid and effective without being valid from the point of view of the value system. On the other hand, all legal norms that fulfil the criteria of axiological validity must, in the statutory law system, be at least formally valid.
However, everything that is generally accepted in the legal community is not necessarily right, and, as such, a firm basis for legal validity. Human behaviour is full of inconsistencies and attempts at influence. The acceptance may therefore be based on persuasion and authority, and, if so, it does not fulfil the expectations of legal certainty. Persuasion, use of force and manipulation open the door to arbitrariness, which is alien to the Constitutional State. In order to avoid this problem, the ideal model of axiological validity cannot be based on acceptance but on (rational) acceptability. This change of view tends to remove random factors such as persuasion and manipulation from validity. The concept of acceptability refers to the expectations of what is rational legal behaviour in society.
Nothing prevents us from saying that norm N is formally valid because it is part of the system authorised by the basic norm. Efficacy, in its turn, is important, but only one of those language-games played with the notion of validity. The third language-game deals with norms that are rationally acceptable in the legal community. Much confusion can be avoided if a conscious effort is made to keep these three different ways of speaking of the validity distinct from each other.
Sometimes it has been maintained that the formal validity of legal principles can be derived from legal rules. As the validity of legal rules is based on the rule of recognition, legal principles are also subject to the rule of recognition (MacCormick 1978b, 185). This comment does not take into consideration that the connection to the formal rule of recognition can be one of degree. In some cases the institutional support of both rules and principles is based directly on the Constitution. Sometimes, however, the institutional support for a principle can only be found as a result of legal discourse. This is the case when the Supreme Court accepts extralegal principles as legal arguments. Before that they have no institutional guarantee in legal rules.
Thus the rational acceptability also makes it possible to criticise norm standpoints merely based on the formally valid law or on norms proven to be effective in society. Formally valid and effective law can still be unjust. It would not be acceptable by those who are committed to the criteria of rationality and well-founded values or moral code. The argumentation theory and new rhetoric, therefore, rest on the concept of acceptability to a large extent. What is most important is that the theory of rational legal argumentation allows the use of all three types of validity. The role of each game depends on the context in which the game is played.