Validity and Adjudication in Multi-level Legal Systems
Paul Scholten Centre Colloquium with Thomas Riesthuis (Legal Philosophy Erasmus University Rotterdam).
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In this paper I explore our general understanding of legal validity in the context of multi-level legal systems. Common-sense beliefs about validity can be explained on the basis of H.L.A. Hart’s theory of legal positivism. Legal validity is commonly understood as binary, meaning that a rule or principle is either valid or invalid. We also consider officials to be important in affirming the validity of legal norms. In Hart’s positivist theory of law officials follow a conventional rule of recognition when valid legal norms are identified. This paper will argue that these two commonly held positivist beliefs are unconvincing considering how officials recognize norms of other legal orders as valid. A moral account of the practice of recognition in multi-level legal systems will be constructed that is perspectival in nature. Based on this moral account of the practice of recognition this paper then turns to adjudication. We generally assume that adjudication is aimed at reaching the best decision, or what Ronald Dworkin has called a ‘right answer.’ This paper will argue that adjudication in multi-level legal systems reveals the importance of institutional context in which judges reach their decisions.
Research colloquium, organised by the Paul Scholten Centre. This colloquium is open to all, no registration required. A copy of the paper can be obtained via email@example.com.