Legal Validity: The Fabric of Justice (European Academy of Legal Theory Series)

Critical human interests are affected on a daily basis by appeal to past decisions deemed to be ‘legally valid’. They include statutes, deportation orders, judgments, mortgage contracts, patents and wills. Through the technique of validity, lawyerly reasoning settles morally pressing matters in a way that largely bypasses moral argument. Legal philosophy has paid considerable attention to validity criteria, but it has neglected to explore validity’s point: whether, and if so how, the pervasive technique of validity can contribute to a legal system’s ability to realise justice and human rights. This book shows that validity can help a political community to foster justice precisely because validity does not primarily turn on moral considerations. Validity serves to both allocate, and limit, a distinct kind of power, a power that is key to forging valuable forms of enterprise and commitment in pursuit of individual and collective self-direction. By entrusting the capacity to decide to those who, in justice, ought to bear it, validity can enable persons and institutions to rally the resources and opportunities that only large-scale behavioural convergence can afford, thereby weaving a fabric of just relationships within the systemic framework of law. European Academy of Legal Theory Monograph Series: Volume 15 "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"-- Provided by publisher "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."-- Résumé de l'éditeur Acknowledgements Contents Notes 1. Introduction: Why Legal Validity? I. An Intriguing Fact II. The Code Idea III. A Neglected Question Notes 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 Notes 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 Notes 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 Notes 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 Notes 6. The Systemic Character of Legal Meaning I. The Moral Need for Law's Positivity 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 Notes 7. Conclusion: The Fabric of Justice I. The Strength of Limited Power II. Validity's Spell Bibliography Index "Critical human interests are affected on a daily basis by appeal to past decisions deemed to be 'legally valid'. They include statutes, deportation orders, judgments, mortgage contracts, patents and wills. Through the technique of validity, lawyerly reasoning settles morally pressing matters in a way that largely bypasses moral argument. Legal philosophy has paid considerable attention to validity criteria, but it has neglected to explore validity's point: whether, and if so how, the pervasive technique of validity can contribute to a legal system's ability to realise justice and human rights. This book shows that validity can help a political community to foster justice precisely because validity does not primarily turn on moral considerations. Validity serves to both allocate, and limit, a distinct kind of power, a power that is key to forging valuable forms of enterprise and commitment in pursuit of individual and collective self-direction. By entrusting the capacity to decide to those who, in justice, ought to bear it, validity can enable persons and institutions to rally the resources and opportunities that only large-scale behavioural convergence can afford, thereby weaving a fabric of just relationships within the systemic framework of law"--Bloomsbury Publishing.