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Priel on Legitimacy & Validity in Legal Theory

By Lawrence Solum

Dan Priel (University of Warwick - School of Law) has posted The Place of Legitimacy in Legal Theory on SSRN. Here is the abstract:

In this essay I argue that to understand debates in jurisprudence one needs to distinguish clearly between four concepts: validity, content, normativity, and legitimacy. More specifically I show that debates between legal positivists and Dworkin should be understood not, as it is often said, as debates on the conditions of validity, but rather as debates on the right way of understanding the relationship between these four concepts. After presenting the two different ways in which legal positivists and Dworkin understand this relationship, I argue that the Dworkinian approach is superior to the positivist one. The positivist account begins with an attempt to explain the conditions of validity and to leave the question of assessment of valid legal norms to the second stage of inquiry. But though appealing, I argue that the notion of validity cannot be given sense outside a preliminary consideration of legitimacy.

And from the paper:

[Q]uestions of what counts as law, or as sources of law, are shot through with considerations of legitimacy. Indeed, even with the ?obvious? sources? legislative acts or precedents?considerations of legitimacy are part of the story. True, it may be that if asked to explain why she relied on a statute, a judge would first respond, ?because it is the law?, or even ?because that is how we do things around here?. But if pressed I doubt whether any judge would say that this is where her spade is turned. This, of course, is an empirical claim for which I cannot provide conclusive proof. But neither has Hart offered contrary evidence. His claim that ?surely an English judge?s reason for treating Parliament?s legislation (or an American judge?s reason for treating the Constitution) as a source of law having supremacy over other sources includes the fact that his judicial colleagues concur in this as their predecessors have done?,37 is very weak as it only demands that the practice be one among several reasons that motivate the judge. While it is not inconsistent with the fact that political considerations affect judges? views on the legitimate sources of their decisions and the legitimate boundaries of their adjudicatory role, it cannot challenge it either. And when we look at how judges explain their judicial practice, they often do so by relating it to their position within a structure of legitimate government. In interpreting the law they admit of certain arguments or sources and not of others, because of the political and institutional constraints of the judicial role. It does not matter whether their arguments are astute or not. What matters is that in doing so judges show that the boundaries of their practice are not (exclusively) set by conventions.

Interesting, informative, and well argued.  Highly recommended.

Full post as published by Legal Theory Blog on March 15, 2010 (boomark / email).