This book addresses a palpable, yet widely neglected, tension in legal discourse. In our everyday legal practices -whether taking place in a courtroom, classroom, law firm or elsewhere -we routinely and unproblematically talk of the activities of creating and applying law. However, when legal scholars have analysed this distinction in their theories (rather than simply assuming it), many have undermined it, if not dismissed it as untenable.The author shows that the relevance of distinguishing between law-creation and law-application transcends the boundaries of jurisprudential enquiry and is a crucial component of political theory. For if there is no possibility of applying a legal rule that was created by a different institution at a previous moment in time, then our current constitutional-democratic frameworks are effectively empty vessels which conceal a power relationship between public authorities and citizens which is very different from the one on which constitutional democracy is grounded.After problematising the most relevant objections in the literature, the book presents a comprehensive defence of the distinction between creation and application of law within the structure of constitutional democracy. It does so through an integrated jurisprudential methodology, which combines insights from different disciplines (including history, anthropology, political science, philosophy of language and philosophy of action) while also casting new light on long-standing issues in public law, such as the role of legal discretion in the law-making process and the scope of the separation of powers doctrine. Volume 13 in the series Law and Practical Reason Law and Practical ReasonThe intention of this series is that it should encompass monographs and collections of essays that address the fundamental issues in legal philosophy. The foci are conceptual and normative in character, not empirical. Studies addressing the idea of law as a species of practical reason are especially welcome. Recognising that there is no occasion sharply to distinguish analytic and systematic work in the field from historico-critical research, the editors also welcome studies in the history of legal philosophy. Contributions to the series, inevitably crossing disciplinary lines, will be of interest to students and professionals in moral, political, and legal philosophy.
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 institutionalnormative practice. In this sense, validity is an artificial ontological status that supervenes on that of the 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. 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.
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