Formal Validity

Legal rules are, prima facie, formally valid. The Constitution indicates which rules are part of the hierarchy of norms subject to the Constitution. The same is true of principle-type rules (PR), rule-type principles (RP) and principles (P) when­ever they have been manifested in legislation.

According to Wroblewski, a norm is formally valid if it fulfils the following four conditions (Wroblewski, 1979,207,1984a, 320,1992,77; von Wright 1963, chapter X.5.):

a. it has been accepted and promulgated in due course,

b. the norm has not been repealed,

c. it is not in conflict with another norm in force in the same system, and

d. if there is a conflict, there is another accepted norm for resolving it.

Hans Kelsen’s view reflects in the three meanings of validity in an important way. According to Kelsen, law is the totality formed by the norms given by legal competent institutions. Legal norms, in their turn, are part of the world of “ought” (“Sollen”), not of the “is” (“Sein”). A legal norm always receives its validity from another legal norm. In this sense, the legal order always forms a delegated unity. This is what is meant when referring to a so-called hierarchy of norms. A certain norm is (formally) valid if it is given on the basis of the authority created by a superior norm. The ultimate basis for formal validity is the basic norm (“Grundnorm”) at the top of the pyramid (Kelsen 1970).

Thus Kelsen has a certain interpretation of systemic validity. However, not all hierarchical systems of norms supported by a fundamental norm are legal ones.

Of the many possible systems of norms, the basic norm only makes the most effective one valid. Thus a matter belonging to the world of Sein - efficacy - becomes a necessary condition of the validity of legal norms. A legal norm is valid if it is part of an effective hierarchy of legal norms. Kelsen goes even further and requires efficacy of each individual norm as well. In this way, cases of desuetude are left out of his concept of validity. The norm X is valid if it is part of a by and large effective system of norms and it is effective in itself. On the other hand, Kelsen denounces the possibility that the validity of a norm could be determined on the axiological basis. Valid law does not require morality for its force. For this reason, natural law cannot be law in the proper sense of the word. According to Kelsen, it belongs in the category of morality.

The problem becomes a different one if, in addition to the formal validity, atten­tion is paid to the material side of validity too. The problems may be illustrated by examining the way in which rules and principles are over-ridden in various conflict situations. There may be at least four different situations:

1. A norm may be valid as a strict prima facie rule, in which case one can only deviate from it on the basis of another legal rule. Apparently, Ronald Dworkin had this in mind when he wrote “If two rules are in conflict, one of them cannot be valid”. Strict validity, however, is an ambiguous matter. Two rules may be prima facie (formally) valid even though the second must, all things considered, yield. Thus, the conflict can be decided through interpretation. The interpretation may show that a prima facie valid legal rule is something different from an all things considered valid legal rule.

Furthermore, two rules may be prima facie valid in the strict sense when one is a general rule and the other is a special one. There need not be a conflict between the two, even with all things considered. Instead, one simply yields on the basis of the lex specialis maxim.

2. A norm may be valid as an ordinary prima facie rule, although it can be over­ridden on the basis of a legal principle. The norm collision is “conflict-like”, and the pushing aside of the rule is a case of contra legem.

3. A norm may be valid as a prima facie principle, which means that in a case of conflict, a principle overrides another principle without a single principle losing its prima facie validity. A prima facie principle may only be over-ridden in legal consideration - that is, all things considered.

4. If a principle is valid as an ordinary prima facie principle, it is not possible to demonstrate even a prima facie preference. Principles compete in legal reasoning on an equal basis.

If it is not possible to ascertain the prima facie validity of a principle - there is no institutional support for it; the validity can only be ascertained with all things considered. In this case, the validity may be ascertained in two ways:

a. One ascertains whether the principle has prima facie institutional support in the legal order. Such support is provided, for example, by confirmation of the principle in a prece­dent. Indeed, many value principles are, precisely in this sense, institutional expressions of values.

b. Legal discourse, however, is also open to non-juridical arguments that have not yet received the advance institutional support, no matter whether these arguments are social facts or non-legal principles. For example, if a non-legal principle is part of a coherent background of justification that includes at least some authoritative legal sources, such as written law, this principle receives juridical relevance with all things considered.

The positive law includes not only the legal rules that have been given, as well as customary law, but also legal principles that are recognised as grounds of decision­making in practice. This is so when a non-legal value principle is confirmed for the first time by a superior court. The extra-legal argument receives its institutional support from legal discourse that can be appropriately controlled, even though the argument itself did not have institutional support in the legal system before that discourse. In these cases, a key position is held by the coherence of the result of the consideration - that is, how well the non-legal basis agrees with all the legal material that is available. The more coherent the argumentative basis, the more believable it is that a non-legal (value) principle is also legally relevant. The coherence creates the basis for the acceptance of the principle as a legal principle.

Let us return to the concept of systemic validity. Both rules and principles are arguments for certain legal consequences. They are used to justify a decision either prima facie or with all things considered. If they are ambiguous, they would not decide the problem immediately as they must first be interpreted. The decision can only be found with all things considered. Principle-like rules (PR) and principles (P) are in the same position as they are not unambiguous either. Examples include a cognitively open principle-like rule and an evaluatively open principle.

For this reason, it is misleading to claim that legal rules are always definite and that legal principles can only be characterised as prima facie norms. Rules also have a prima facie role in discourse and, for example, a flexible legal rule is anything but definite before consideration. On the other hand, a principle-like rule may, in a cer­tain decision-making situation, be not only prima facie applicable but also “definite” in that it provides the solution without the need for further arguments.

However, what is essential is that even though all kinds of legal norms are prima facie reasons for legal decisions, they are of different degrees of precision. One class consists of clear either/or types of rules, another of rules for which it is not possible to say whether or not they apply. A third class consists of principles for which we do not know the degree to which they can be applied.

If, and only if, we keep an eye on the extreme ends of the scale (R, P) it would appear that the strong demarcation thesis is valid. There really are different types of norms as far as applicability is concerned. On the other hand, the thesis is not valid for the area between the two extremes. With regard to applicability, there is no essential difference between open rules and principles.

Hans Kelsen's theory is a good example of an attempt to define the validity of a legal norm in a cut-and-dried manner. The weakness of this kind of norm arises from a deeply-rooted tendency to search for clear definitions of words. This does not solve the problems of legal validity. In this study, an attempt is made to give up strict definitions and again follow the Wittgensteinian idea of language-games. Why not speak of the validity in different ways in different contexts? It depends on the language we use, which meaning of validity has to be chosen.