Legal Validity, Effectiveness, and Justice: A Comprehensive Analysis
Legal Validity, Effectiveness, and Justice
Validity: A rule is valid if it meets the conditions laid down in the order, the appropriate body created it, a proper procedure was followed, it has not been repealed, and it does not conflict with another rule.
Effectiveness: A rule is effective when it achieves its intended end, rules are followed spontaneously, there is a fear of punishment, sanctions are applied when necessary, and sanctions are not bypassed.
Justice: Justice is the adequacy of a standard of morality.
Positive Law vs. Natural Law
Positive Law: There is no natural right; if there is, it is irrelevant. Positive law must adapt to natural law.
- Ethical Skepticism: Only empirically verifiable statements can be true or false.
- Ideological Positivism: The law is mandatory and must be obeyed by judges and citizens to produce social peace.
- Legal Formalism: The law is a complete and coherent whole composed of self-originating rules.
- Methodological Positivism: The law can be characterized by descriptive properties.
- Sociological Realism: The law is based on prophecies about what judges will do. Laws only matter in terms of what judges will decide.
Iusnaturalismo (Natural Law)
Natural law is above positive law.
- Ontological: The law must abide by certain ethical requirements and principles for its existence.
- Deontological: The law must adhere to certain principles of justice.
Moral-Right Differences
The right has an external view, while morale is internal. Moral autonomy vs. legal heteronomy. The law believes people are in moral-legal positions alike. The law addresses criminality, law enforcement, and sanction. Morality is immune from deliberate change; law imposes obligations and confers rights, while morality only imposes obligations.
Minimum Content Theory (Hart)
All law must have a minimum of natural law drawn from fundamental truths:
- Vulnerable men
- Equal in strength
- Limited altruism
- Limited resources
- Limited ability and willingness to understand
This theory extracts four points:
- Ban violence
- Property institution
- Need for sanctions
- Respect for promises
Social Role Orientation
Rules are designed to guide behavior. Law directs and regulates the conduct of group members. This is “Educational” and provides social control through various mechanisms, including family, education, religion, trade unions, and political parties. Deviation is a breach of social norms due to socialization deficiency. Penalties discourage behavior, and positive consequences encourage it.
Sanctions
(Kelsen): Any unpleasant consequence for a breach of a norm.
(Bobbi):
- Positive: Awarding benefits
- Negative (Retributive): Punishment
- Reparative: Effects offset harmful actions
Elements of Penalty (Kelsen)
An act of coercion, force, actual or latent deprivation of good; authority should apply sanctions, and a legal norm should be behind it, following a behavior.
Standard Rates (Bobbi)
Contains criteria for identifying legal rules, is valid in itself, and is built around the system. Production rules empower agencies to create change. Sanction rules empower organs to decide when a standard has been violated.
- Simple: Behavior + identifier
- Semi: Driving + identifier + sanction or produce
- Complex: Conduct + produced + identifier + sanction
Prob.Unid. (Kelsen)
Divided into two parts of legal theory:
- Static: Rules are derived from general rules.
- Dynamic: A standard is valid if it has been created pursuant to a superior rule.
Pyramid of execution-production, basic norm presupposed, ahistorical order; everything below is valid.