Abstract
The purpose of this article is to use the elusive phenomena of legal validity and soft law to illuminate each other. Three notions of legal validity are distinguished. Source validity and binding force (in a special technical sense) are internal legal notions that are used in legal argumentation. On the contrary, efficacy (also in a special technical sense) is an external notion, used in descriptive theories about law such as sociology of law or legal theory. Source validity is a characteristic of, among others, legal sources, and something was validly made in this sense if it was made by a competent agent in accordance with the relevant procedure. A rule has binding force if this rule exists and generates legal consequences when applied. A rule is efficacious if its consequences are accepted by the relevant legal subjects, including officials.
With these three notions of legal validity in place, the focus of the argument shifts to the nature of soft law and how it combines with the three notions of legal validity. For a proper analysis of soft law, three elements are required. First, it is necessary to replace the traditional rule-based view of legal reasoning by a view in which reasons, rather than rules, take the central place. For this purpose, a special logic for reasons, reason-based logic, is introduced into the argument. Second, it is necessary to replace the view of legal justification, according to which justification consists of an argument with the object of justification as its conclusion, with a view that emphasizes the dialogical nature of justification. For this purpose, a dialogical variant of reason-based logic is briefly explained. And third, the view of legal reasoning as a reconstruction of legal effects that exist independently has to be replaced by a constructivist view, according to which legal consequences are determined by means of legal argumentation.
On the basis of these three changes of perspective, the definition of soft law as law that can less easily be used in legal argumentation becomes understandable. Moreover, the tools that have become available by the introduction of the three notions of validity, dialogical reason-based logic, and constructivism make it possible to identify different reasons why legal rules may be soft: limited applicability, dubious binding force, frequent exceptions, and weak reasons for the rule consequences.
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- 1.
The contributions of Von der Pfordten and Kirste to the present volume contain historical overviews with emphasis on the German-language literature.
- 2.
The content of this example rule was inspired by Article 27 of the Dutch Code for Criminal Procedure.
- 3.
To avoid ugly “he/she”-constructions, I will adhere to the convention that the gender of the author is used when the gender of the person referred to in the text is immaterial: in the present case this means that “he” is so used. I can only encourage female authors to use “she” in this connection.
- 4.
If the differences between the truth conditions for internal validity claims were to be large, the question should be raised whether they are really truth conditions for the same claims. Suppose that German and English law have very different conditions for the validity of legal rules, can we then still say that the German “Geltung” as applied to legal rules means the same as the English “valid”?
- 5.
As Westerman and Mackor (this volume) both point out, claims about validity in the sense of efficacy, the kind of validity-claims one can expect in external discourse about law can sometimes be used to justify claims about the binding force of some rule. The latter kind of claim is most typically made in internal legal discourse. See also Sect. 5.4 of the present contribution.
- 6.
This point was already made by Sartor (2005, pp. 335/6).
- 7.
Mackor (present volume) disagrees here, but the difference seems superficial. According to Mackor, a rule is (source) invalid if the rule stems from a defective source.
- 8.
To avoid misunderstandings: they are disputes about the validity of the instance of the source. So the validity of a particular bill may be questioned in this connection, but not the role of legislation in creating law. The latter discussion is also possible, but that would again be a discussion about the binding force of a rule, namely the social convention (the “rule of recognition”) that identifies the validity-sources of a particular legal system. This distinction is emphasized in Carpentier’s contribution to the present volume.
- 9.
However, it is in principle possible to “avoid” juridical acts, including legislation and contracts. Such avoidance means that the legal consequences are no longer attached to the event in question and these consequences lose their validity in the sense of binding force.
- 10.
The term “naturalistic” is put between quotes, because it is not very clear what it means. The idea is often associated with empirical verifiability, or with physical properties. Cf. the distinction between methodological and substantive naturalism in Leiter (2014).
- 11.
It is presupposed here that if the members of a group collectively believe that they are walking, they are actually walking. Collective delusions are somewhat problematic for social facts. This is not the place, however, to elaborate a theory of social actions that deals with this complication.
- 12.
In her contribution to this volume, Waltermann explores this role of the people and how this role sits together with different views on the nature of law.
- 13.
This observation plays an important role in the contributions to this volume of Van Klink and Lembcke and Westerman.
- 14.
This view is represented by the rough delineation of soft law in the contribution of Mackor to this volume.
- 15.
This is emphasized in the contribution to this volume of Van Klink and Lembcke.
- 16.
- 17.
Cf. the discussion of rules and their factual counterparts in Hage (2015).
- 18.
Legal rules are one kind of nexus, but there are many other examples. For example the facts that somebody is a male and that he is unmarried are together a reason for the conclusion that this person is a bachelor. This reason is based on the definition (a nexus) that unmarried males are (count as) bachelors. The fact that the train departed too late is a reason why the train will probably not arrive on time. The underlying nexus is that trains which depart too late will probably arrive too late.
- 19.
This interpretation underlies the use of the term “undercutters” or “undercutting defeaters” for what Raz dubbed exclusionary reasons in the theory of defeasible reasoning. See Pollock and Cruz (1999), p. 196.
- 20.
Raz (1975), pp. 73–76.
- 21.
Hage (2012).
- 22.
Dworkin (1986), chapters 2 and 7.
- 23.
More details on dialogical reason-based logic can be found in Lodder (1999).
- 24.
The description of an argumentative process as a dialog between the proponent of a thesis and his audience suggests that there are always two parties involved in a legal dialog. That does not have to be the case. It is possible to devise a model of “dialogical” argumentation in which an arbiter plays a role who mediates between the other parties.
- 25.
A court will not normally accept theses without reasons, but in the end it must accept some theses without additional reasons, for instance the thesis that the suspect is telling the truth when he confesses his crime.
- 26.
Normally there would be additional conditions, for instance that the citizen undertook obligations because of her justified belief, but to keep the example manageable I will make some concessions on legal precision.
- 27.
There is no room to elaborate the following point, but it nevertheless deserves mentioning. Even where the body of valid laws is assumed to be fixed, the number of exceptions, and exceptions to exceptions, to these rules may still be open. This means that, even if the set of binding rules is closed, legal reasoning may still be open.
- 28.
A dialog also stops when both parties are committed to the negation of the main thesis, or if the parties stop adducing arguments.
- 29.
Westerman, in this volume, seems to overlook the possibility that soft law comes in degrees, and is nevertheless fully binding. In that case, the required graduation of soft law can only be bought at the cost of allowing degrees of binding force. In the present author’s opinion, not all reasons as to why a legal rule is soft lend themselves to support the claim that the rule is less binding. However, in the end the matter is mostly semantic: it is possible—although not elegant—to use a notion of graded binding force to play the logical role of the graded notion of softness in this contribution.
- 30.
The contributions of Bódig, Brus, Mackor, Van Klink and Lembcke, Yugank and Westerman pay more attention to these substantive reasons. Most of what these authors write is highly compatible with the more abstract and logical account of the present contribution.
- 31.
However, parties may be committed to the rule of recognition that a reason why a rule is binding is that this rule is broadly accepted as such. This broad acceptance is efficacy and efficacy may therefore play some role in legal dialogs as a reason for binding force. Then we are talking about semi-forced commitment.
- 32.
This is elaborated as the difference between formal and material validity in the contribution of Sandro to the present volume.
- 33.
See the contributions of Sandro and Mackor to the present volume.
- 34.
Fuller (1963), Chapter 2. See also the contribution of Van Klink and Lembcke to this volume.
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The author thanks Stephan Kirste, Anne Ruth Mackor, Pauline Westerman and Mark Rogers for useful comments on earlier versions.
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Hage, J. (2018). What Is Legal Validity? Lessons from Soft Law. 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_2
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