Legal Validity

The Fabric of Justice

Maris Köpcke

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509904297
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Critical human interests are affected on a daily basis by appeal to past decisions deemed to be 'legally valid'. They include statutes, deportation orders, judgments, mortgage contracts, patents and wills. Through the technique of validity, lawyerly reasoning settles morally pressing matters in a way that largely bypasses moral argument. Legal philosophy has paid considerable attention to validity criteria, but it has neglected to explore validity's point: whether, and if so how, the pervasive technique of validity can contribute to a legal system's ability to realise justice and human rights. This book shows that validity can help a political community to foster justice precisely because validity does not primarily turn on moral considerations. Validity serves to both allocate, and limit, a distinct kind of power, a power that is key to forging valuable forms of enterprise and commitment in pursuit of individual and collective self-direction. By entrusting the capacity to decide to those who, in justice, ought to bear it, validity can enable persons and institutions to rally the resources and opportunities that only large-scale behavioural convergence can afford, thereby weaving a fabric of just relationships within the systemic framework of law.

1

Introduction: Why Legal Validity?

I.AN INTRIGUING FACT

EVERY DAY, IN many parts of our world, human beings are deprived of their freedom and denied assistance, their plans and expectations are thwarted, their belongings are seized, they are forcefully torn out of their homes and separated from their loved ones, by appeal to one or more past decisions deemed to be legally valid: for example, a legally valid deportation order, a legally valid contract, or a legally valid criminal statute. Even when we are not thus subject to exertions of legal force, our lives are shaped in far-reaching ways by our own and other people’s reliance on the fact that certain things are legally valid, including job appointments, pension grants, passports, marriages, tax returns, or airline tickets. Many important matters turn on what is and what is not valid. Correctly pinpointing valid decisions is a fundamental lawyerly skill, and much argument in courtrooms and legal scholarship turns precisely on this question.

There is something deeply intriguing about this reality. Despite the central place that the idea of validity occupies in these familiar forms of reasoning, they rarely engage with the question of what legal validity is. Plainly they need not. The fact that an English will must have three rather than two signatures, for example, does not follow from anybody’s understanding of the English phrase ‘legally valid’. It follows from relevant statutory provisions that provide, amongst other things, requirements of procedure and form. So if I have to assess whether the document in front of me is a legally valid will, I have to check what other persons have decided in the past on the question of what makes a will valid. And the way in which I identify their decisions as being relevant to my enquiry, in turn, is in virtue of the fact that those decisions, too, are legally valid. They, too, were made in accordance with criteria, including requirements of procedure and form, set out in yet further decisions. In an important sense, therefore, my judgement – here and now – that this is a legally valid will is a judgement at several steps’ remove. And the steps it builds on, those past judgements I have not witnessed, by persons I do not even know, do not settle what validity is either. They only specify how to tell whether something is valid.

Most of us, however, intuitively feel that we do have a firm grasp of what ‘legal validity’ stands for. This adds to the puzzle. Try asking people – lawyers, laypeople, theorists – what it means to say that a contract, a statute, a will, a passport or a bus-ticket is legally valid. Chances are that you will be told that it is pretty obvious, but you will be given quite a range of different (‘obvious’) responses. You may be told, for example, that it was done ‘according to law’. Now, it is true as a general matter that all that is legally valid has been done according to law. But we do not think of all that is according to law as being legally valid. When I stop at a red light, I act according to law (lawfully). And likewise when I refrain from stealing. Yet it would normally be contrived to describe these kinds of act or omission as ‘legally valid’ – or ‘invalid’, for that matter. Of course, those who operate cameras at traffic lights, for example, might employ jargon by which a stop completely behind the white line is ‘legally valid’, but this would be a highly context-specific use of the expression. Stoppings-at-red and omissions to steal are not legally valid in quite the same stable, widely acknowledged sense as are contracts, passports and wills. This is partly because, when I issue a valid passport or make a valid contract or will, unlike when I stop at red, I bring something into existence: I create an entity – the passport, the contract, the will – that somehow lives on beyond the moment of its creation, and sometimes for generations. Perhaps this is why, for many legal professionals, ‘legally valid’ stands for ‘created by following the relevant steps’. But again, although this is true of all that is legally valid, it is similarly true of many other things, for example brownies baked according to a recipe. To be sure, contracts, unlike brownies, have legal consequences. This yields another popular explanation of ‘legally valid’, as whatever ‘has the consequences established by law’. The problem, here as well, is that not only do contracts have consequences established by law, but so do thefts, childbirths, floods and earthquakes. And none of these sorts of action or event is for most purposes thought of as being legally valid.

Validity is elusive, and yet critical aspects of human well-being pervasively hang on whether something is or is not valid. We individually and collectively let valid decisions occupy a place in our arrangements and deliberations, in our plans, vindications, justifications and hopes, that, in the final analysis, only just decisions deserve to occupy. In the name of validity, human interests are affected in ways that would only be justifiable if warranted by a morally compelling reason. But a valid decision at best reflects somebody else’s past view of what it would be morally appropriate to do in certain circumstances. It need not even be that person’s present view, if it was an honestly held view in the first place. At any rate, the view may be wrong. In short: not only do we settle questions of justice by reference to something other than a fresh reflection on what justice demands, but the idea we replace justice with, the property we treat almost as if it were a mark of justice, is one on which we hardly have a grip – though we seem deceived into treating it as self-explanatory. Are we under a collective spell?

II.THE CODE IDEA

In a sense, we are under a spell. The purpose of this book is to explore the moral need for this spell, and in so doing unravel how it operates. The book explains how, and within what general limits, legal validity can help a large community to foster justice precisely by helping it bypass concerns about justice and other concomitant matters. It shows that a fascinating legal technique is associated with the idea of legal validity, spanning the domains of private and public law. And it demonstrates that this technique is a valuable, in some ways an irreplaceable, tool for individuals and groups, for persons and institutions, to forge commitments and allocate responsibilities in pursuit of reasonable self-direction, by rallying the resources and opportunities that only large-scale patterns of behavioural convergence can afford, thereby weaving a fabric of just relations between persons within the framework of the law.

In thus probing the point of legal validity, the book exposes and explains some remarkable puzzles this everyday notion harbours. These puzzles may be grouped into three broad sets, each of which follows on from the previous one.

One first set of puzzles concerns the very sort of thing validity is. We routinely refer to certain things as legally valid, but is there anything common to the things we thus refer to – something other than the fact that we so refer to them? Is there more to our accustomed appeal to legal validity than a haphazard or random linguistic habit? We shall not unravel validity’s point by pondering what the term ‘validity’ means. Its use appears to preclude the very kind of enquiry we are pursuing. One does not crack the workings of a magical trick by looking up the words ‘hocus pocus’. Therefore the book’s initial task is to look beyond the way we speak, in search of an underlying similarity amongst the miscellaneous things we habitually call legally valid. The way we speak is, for our purposes, no more, though no less, than a potential clue. It is a potential clue to the existence of a deeper similarity amongst certain kinds of things, a similarity that might begin to explain why we are justified in assigning them such a central place in our dealings.

The quest for this similarity occupies chapters 2 and 3. It is a revealing task. Valid things accompany us in the most diverse walks of life. Some valid things can be touched; some cannot. A valid 30-page deed may record an investment company’s valid incorporation. One may validly trade a minute share in the risk involved in a transaction that itself occurs in a global financial market. Valid ID cards increasingly give way to valid codes. Valid things originating in the past may seal the fate of individuals in the present. Valid action may occur under the auspices of state law or of an ever-growing set of supranational regulations. Despite these variegated manifestations, it is common to valid things that they are made and, crucially, that they are made through a distinct kind of technique: in essence, by someone saying so. Valid things, the book shows, embody choices to change legal duties, rights and powers incumbent on the agent himself or on others. Valid choices are choices of a special kind. They become true in being expressed. Valid choices are self-fulfilling. One brings about what one says one intends to bring about – a feature rendered particularly conspicuous by the lawyerly ‘hereby’. The technique of legal validity is a powerful tool to shape one’s own and other people’s legal relations. It is power exercised through a datable say-so. It is a technique fit to be deployed intentionally, but which may also curb the agent’s intentions. It is a technique that manifests a present choice, but its binding force lasts over time. It is the technique whereby we exert what jurisprudential literature has insistently but imprecisely described as ‘legal power’.

A second set of puzzles concerns the moral import of such legal power. Can the use of the legal technique of validity justify compromising sensitive human interests as if warranted by a compelling moral reason? In other words: Can validity bestow on one the power to change not only legal but also moral duties and rights, by so saying? In some respects it can. The basic logic that makes this possible is explained in chapter 4. It is the logic of specific convergence. Specific convergence is what it takes, across countless domains of social life, to foster human well-being as resources permit and justice demands. Many aspects of a person’s well-being depend, for their protection and development, on the cooperation of other persons. In many regards, each of us is only able to make an effective contribution to the well-being of others when acting as part of a collective scheme. Only in the context of a fair redistributive system, for example, can my payment of a specified tax sum by a specified date make a duly apt and proportionate, and therefore necessary, contribution to the healthcare of others. Only in the context of an operative traffic order does my stopping here and now amount to a uniquely appropriate, and therefore necessary, means to safeguard the physical integrity of other drivers and pedestrians, compatibly with sustaining the amenities of swift transport. In each case, it is the presence of a scheme of convergent conduct that makes a difference to my own ability to foster justice, and thus to what it is necessary and morally obligatory for me to do. This is so even though the particulars of this scheme – eg how much to pay, when to stop – are specific enough that they could reasonably have been otherwise. In the absence of the relevant collective scheme, the same kind of conduct on my part would probably be ineffective to the same end, if not counterproductive. Specific convergence makes a standing difference to what persons ought in justice to do.

The kind of specific convergence required to foster justice, however, does not arise out of the blue. Valid choices are key to generating and sustaining it. Generating convergence involves publicly settling on determinate patterns of conduct, and seeing to their general compliance. The book speaks respectively of marking and enforcing. Marking and enforcing go, hand in hand, to ensure that specific provisions are convergently followed. It takes specific convergence to realise justice, and it takes marking and enforcing to realise specific convergence. Legal systems have a privileged tool for marking. It is the technique of legal validity. Valid choices are distinctly salient. They can stand out to a potentially wide range of people, given the characteristics of validity’s technique. It is a technique for expressing choices through a specified process, often recorded on a lasting physical support. Criteria for identifying valid decisions make central considerations of procedure and form, that is to say, features of the choosing act or its record that even persons with different skills and clashing ideological outlooks can convergently identify: signatures, stamps, seals, registry entries. Validity serves to mark specific conduct as due, even in the face of moral controversy. It serves to mark specific conduct as due, also in the face of rational under-determination of general requirements of justice. Valid choices provide a stable focus for expectations because they are able to circulate as deliberately introduced normative changes and yet also as entities in their own right, which one can refer to and rely on, for many purposes, relatively independently of their originating circumstances and of shifting views about their merits. Valid choices, in being able to generate needed convergence, can render conduct due by marking it as due. The technique of legal validity can bestow a power to craft requirements of justice.

But this power is not unlimited. In fact, justice requires that we lack an unconstrained power to shape legal duties and rights as we happen to choose. Herein lies the third set of puzzles about validity. The book shows that legal power can be all the greater precisely in being limited. Even as a matter of law, legal power is limited power. It cannot be other than limited. It is only by acting in accordance with what is provided in the relevant legal regime that one’s say-so can succeed in changing legal relations. If you try to marry a person who is already married, to convey land on tissue paper, or to issue a resolution that is deeply ultra vires, you fail. You fail, no matter how clearly you express your intention to thereby change legal relations. Your say-so only succeeds if it is expressed in the legally specified way, and if the law otherwise provides for this possibility. Only by complying with these limits will your say-so become part of the legal fabric. Ultra vires acts are loose, indeed lost threads. Chapter 3 accounts for these legal limitations on legal power in canvassing validity’s technique. Later chapters are able to spell out the moral point of these limitations.

This requires understanding that the legal regime that places these constraints is itself the result of valid decisions of other persons and institutions, typically including legislatures and judges. There are stringent considerations of justice, as chapter 5 explains, why the many social affairs that fall to be settled through law ought to be settled by the valid decisions of a variety of agents acting at different times – rather than by a small set of agents choosing once and for all. These considerations speak to the need for, amongst other things, a separation of powers, institutional deference, relative freedom of contract, prosecutorial discretion, democratic self-government, and an appropriate balance between common law and legislative modes of law-making. In other words: the question of who should take the lead in generating specific convergence is itself a question of justice. In a just political community, the responsibility to bring about specific convergence will be shared. It will be shared amongst those who are in the best position to decide on each relevant matter, in light of requirements of expertise, impartiality, proximity, s...

Table of contents

• Cover
• Dedication
• Title Page
• Acknowledgements
• Contents
• Notes
• 1. Introduction: Why Legal Validity?
• 2. Legal Power
• 3. Intention in Valid Acts
• 4. Justice and Convergence
• 5. Reasons to Empower
• 6. The Systemic Character of Legal Meaning
• 7. Conclusion: The Fabric of Justice
• Bibliography
• Index
• Copyright Page