Unlocking legal validity. Some remarks on the artificial ontology of law

Following Kelsen’s influential theory of law, the concept of validity has been used in the literature to refer to different properties of law (such as existence, membership, bindingness, and more) and so it is inherently ambiguous. More importantly, Kelsen’s equivalence between the existence and the validity of law prevents us from accounting satisfactorily for relevant aspects of our current legal practices, such as the phenomenon of ‘unlawful law’. This chapter addresses this ambiguity to argue that the most important function of the concept of validity is constituting the complex ontological paradigm of modern law as an institutional-normative practice. In this sense validity is an artificial ontological status that supervenes on that of existence of legal norms, thus allowing law to regulate its own creation and creating the logical space for the occurrence of ‘unlawful law’. This function, I argue in the last part, is crucial to understanding the relationship between the ontological and epistemic dimensions of the objectivity of law. For given the necessary practice-independence of legal norms, it is the epistemic accessibility of their creation that enables the law to fulfill its general action-guiding (and thus coordinating) function

Balancing, Proportionality, and Constitutional Rights

In the theory and practice of constitutional adjudication, proportionality review plays a crucial role. At a theoretical level, it lies at core of the debate on rights adjudication; in judicial practice, it is a widespread decision-making model characterizing the action of constitutional, supra-national and international courts. Despite its circulation and centrality in contemporary legal discourse, proportionality in rights-adjudication is still extremely controversial. It raises normative questions—concerning its justification and limits—and descriptive questions—regarding its nature and distinctive features. The chapter addresses both orders of questions. Part I centres on the justification of proportionality review, the connection between proportionality, balancing and theories of rights and the critical aspects of this connection. Part II identifies and analyses the different forms of proportionality both in review, as a template for rights-adjudication, and of review, as a way of defining the scope and limits of adjudication

Normative Legal Positivism, Neutrality, and the Rule of Law

Usually, in jurisprudential debates what is discussed under the rubric of \u2018neutrality\u2019 is the claim that jurisprudence is (or at least can, and should be) a conceptual, or descriptive - thus, non-normative, or morally neutral - inquiry. I discuss neutrality in an altogether different sense, namely, neutrality as an ethico-political ideal the law should meet. My starting point is normative legal positivism, or the claim that it is a good and desirable thing that the laws have easily identifiable, readily accessible, as far as possible non-controversial social sources. What justifies normative legal positivism, I claim, is the value - or the ideal - of neutrality, suitably understood. I.e., what is desirable about laws being such as normative legal positivism claims they ought to be is, in a sense to be specified, their neutrality. What, then, is the relevant concept of neutrality? And why is neutrality, so understood, a value? Answers to these questions, I argue, can be found when we consider the idea of the Rule of Law. Normative legal positivism envisages neutrality through the Rule of Law. There are two connections. The first is through stability of mutual expectations. The second stems from what I call the \u2018inherent neutrality\u2019 of prescriptions. Under both respects, it turns out, in J. Raz\u2019s words, \u201cobservance of the rule of law is necessary if the law is to respect human dignity\u201d