Abstract
The concept of legal validity is regarded within the dominant—legal-positivistic—account of law as a nongradable concept: a legal rule is either valid or nonvalid. However, this account of validity is criticized by some scholars as being too strict and rigid. Apparently, an attractive alternative might be Alf Ross’s probabilistic account of validity. Ross assumed that the stronger the predictions of judicial behavior a given rule generates, the greater the probability of their being valid. However, this account of legal validity is by no means uncontroversial. In this paper, four objections to it are formulated: the objection of the apparent gradability, the objection of the problematic ascertainability, the objection of the normative insignificance of probabilistic information, and the objection of neglecting the normativity of legal rules. These objections are treated in the paper as providing strong reasons for rejecting Ross’s claim that predictions of judicial behavior formulated on the basis of rules are conceptually linked to their validity (i.e., they define their meaning); it is argued that they are merely a way of testing empirical hypotheses concerning the application (effectiveness) of legal rules.
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Notes
- 1.
C.f. the article by von der Pfordten in this volume.
- 2.
Ross (1946), p. 11.
- 3.
For more on Ross’s account of verificationism c.f. Aarnio (2011), pp. 83–84.
- 4.
In his debate with H.L.A. Hart, Ross made it clear that his focus is on external assertions (descriptions) as to the validity of law. C.f. Ross (1962), p. 1189.
- 5.
- 6.
Ross (1958), p. 41.
- 7.
Ross (1958), p. 22.
- 8.
Ross (1958), p. 41.
- 9.
Ross (1958), p. 75.
- 10.
For more on Ross’s conception of the sources of law see Millard (2013).
- 11.
Ross (1958), p. 101.
- 12.
According to J. Hage, the difference between the positivistic and Ross’s realistic account of legal validity rests on the fact that positivists (especially Kelsen) discuss validity as a binding force, while Ross perceives validity as efficacy, c.f. the article by Jaap Haage in this volume, section 2D.
- 13.
Ross (1958), p. 45.
- 14.
Ross (1958), p. 45.
- 15.
Ross (1958), p. 102.
- 16.
Cf. the following quotation: “The real content of a norm of conduct is a directive to the judge, while the instruction to the private individual is a derived and figurative norm deduced from it.” Ross (1958), p. 33.
- 17.
Cf, e.g., Grabowski (2014), Ch. 7, section 5.
- 18.
Hart (1959), p. 235.
- 19.
- 20.
For an analysis of the difference between efficacy and validity c.f. the article by Anne Ruth Mackor (section 2.4) in this volume.
References
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———. 1958. On Law and Justice. Berkeley: University of California Press.
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Eliasz, K., Załuski, W. (2018). Critical Remarks on Alf Ross’s Probabilistic Concept of Validity. In: Westerman, P., Hage, J., Kirste, S., Mackor, A. (eds) Legal Validity and Soft Law. Law and Philosophy Library, vol 122. Springer, Cham. https://doi.org/10.1007/978-3-319-77522-7_10
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