Understanding Legal Norms: Validity and Structure

Posted on Mar 7, 2025 in Other university degrees and diplomas

Standard Criteria for Legal Validity

For a legal norm to be valid, it must meet the following criteria:

  • Competent Authority: The norm must be produced by an authority with the legal power to do so. Invalidity can arise from a “formal defect,” where the issuer lacks the necessary authority.
  • Appropriate Procedures: The norm must be created following established procedures. This can also lead to invalidity due to:
    • Formal procedural defects (disregarding formal requirements).
    • Defects in the content itself (material invalidity).
  • Non-Repeal: The norm must not have been repealed by a subsequent norm of equal or higher rank. This reflects the principle of consistency within the legal system.
  • Consistency with Higher Norms: The norm cannot contradict higher-ranking rules within the legal system.

Dynamic and Static Criteria of Validity

The concept of validity involves two types of criteria:

  • Dynamic Approach: A norm is valid when its creation complies with the conditions related to authority, procedure, and non-repeal (points 1, 2, and 3 above). These criteria focus on *how* a rule is made, not its content.
  • Static Criterion: A norm is valid when its content can be derived from a higher norm and does not contradict it. This focuses on the *content* of the norm.

Structure of Legal Norms (Kelsen’s View)

For Kelsen, legal norms are techniques of social motivation, guiding people’s behavior. He distinguishes two types of motivation:

  • Direct Motivation: The norm directly indicates the desired behavior. Individuals are motivated by the authority or rationale of the norm itself.
  • Indirect Motivation: The norm establishes a sanction (punishment or reward) to encourage or discourage certain behaviors, rather than stating the desired conduct directly.

General Elements of Legal Norms

Legal norms can be broken down into eight elements:

  • Nature
  • Content
  • Condition of Application
  • Authority
  • Subject
  • Occasion
  • Promulgation
  • Sanction

The first three constitute the core, the next three are proper elements of prescriptions, and the final two are related.

Classification of Legal Norms

Legal norms can be classified as primary or secondary:

  • Primary Rules:
    • Definitive or Determinative Rules: Define a particular activity (e.g., rules of a game, grammar rules).
    • Technical Guidelines or Rules: Indicate the means to achieve a specific purpose (e.g., instruction manuals). These are conditional and, according to Von Wright, are neither prescriptive nor descriptive.
    • Requirements: Standards characterized by identifying the legislative and regulatory authority, and an opportunity.
  • Secondary Rules:
    • Customs: Norms requiring regular behavior in similar circumstances, generally shared within a community.
    • Moral Norms and Ideal Principles: Establish model standards or ideals within a class (e.g., what constitutes a good lawyer).