Invalidity

Abstract

. According to the common thinking of continental European lawyers, a rule is invalid each and every time either it was not produced in accordance with the metarules which govern the production of rules in the system, or it is inconsistent with a “superior” (higher‐ranked) rule belonging to the same system. Thus, a better understanding of the concept of invalidity demands a careful inquiry into the various kinds of meta‐rules which govern the production of rules as well as into the various kinds of normative hierarchies. The paper is mainly devoted to such an analysis. Five different grounds for invalidity are distinguished. The analysis further shows that invalidity can affect rules as well as legal provisions and legal sources. Further, invalidity should be sharply distinguished from non‐existence (existence being a sufficient condition for rules to be applied). In most legal systems, invalid rules too are susceptible of judicial application: At least, until their invalidity is “declared” (in a constitutive way) by a competent organ (namely, a constitutional court, as far as statutory rules are concerned).

Juristic Concept of the Validity of Statutory Law

“…258 One should agree with Kelsen that the norms of such content are senseless 259 and cannot be valid ("kann keine Geltung haben"). 261 Interestingly, as it seems one can observe here a common sense (and, therefore, somewhat necessary aspect, because common sense should not be an understated feature of only some of the jurisprudential conceptions) compliance of legal positivism with natural law doctrines-for example, Lon Fuller, in his procedural conception of natural law assumes the principle of impossibilium nulla est obligatio as one of the conditions of the internal morality of law. 261 Interestingly, as it seems one can observe here a common sense (and, therefore, somewhat necessary aspect, because common sense should not be an understated feature of only some of the jurisprudential conceptions) compliance of legal positivism with natural law doctrines-for example, Lon Fuller, in his procedural conception of natural law assumes the principle of impossibilium nulla est obligatio as one of the conditions of the internal morality of law.…”

“…261 He rather tries, as do inclusive legal positivists, to demonstrate the possible relation of law and morality, with a very limited power and scope. 260 By rejecting the positivist thesis of the lack of any necessary (conceptual) connection between law and morality, he refrains from its categorical nonpositivist negation; namely, from adopting the necessity of such a connection.…”

“…In this case, the principle of necessitum nulla est obligatio intersects with the principle of cessante ratione 258 We have already analysed these examples in Chap. 261 Ibidem,p. 106-107.…”

“…The second possible interpretation consists of assuming that we deal with two concepts of validity: the first one-proper when taking the decision on validity and the second-expressed by the definition D 2 -identifying the validity 321 Cf. cit.,[257][258][259][260][261]268ff. 5,note 44 at p. 203.…”

La théorie des normes de compétence d’Alf Ross

“…R. Guastini reproche à A. Ross de ne pas préciser la méthode par laquelle peut être connue l'idéologie des juges. 120 Il est possible de répondre de la manière suivante. Selon le juriste danois, Lorsque l' étude doctrinale du droit décrit certaines normes comme du droit valide, elle décrit certaines réalités sociales, un certain contenu d'idées normatives en tant qu' elles sont réellement ressenties et effectives.…”