Legal validity and other properties of legal norms

Abstract

In Kelsen's very influential account, legal validity is the specific mode of existence of legal norms. For this reason, legal validity entails legal applicability and legal bindingness. The chapter intends to show that these notions should be distinguished. It starts with the notion of membership to a legal system: which are the criteria to identify certain norms as belonging to a legal system? Several issues are relevant here, for instance, is the efficacy a necessary condition of membership of legal norms to legal systems? In which sense the authorization of another legal norm N2, also a member to the legal system LS, is a criterion of membership of a legal norm N1 to a legal system LS? And, is this authorization only a formal authorization or a material authorization too? Secondly, the notion of applicability is introduced: in legal practice there are applicable norms that are not members of a legal system, we can think on foreign legal norms, which are not part of the domestic legal system, but applicable in virtue of conflict of laws rules. Finally, the notion of bindingness of legal norms is presented. This notion refers to the question of justified normativity. In which conditions are legal norms apt to provide us reasons for action? Moreover, is legal normativity linked in some sense to robust normativity?

The work was supported by the Spanish Ministry of Science and Innovation (PID2020-113472RB-I00 and PID2020-115041GB-I00) and by Generalitat of Catalonia (2017SGR 00823). We are immensely grateful to Professor Sean Coyle (University of Birmingham) for the comments on an earlier version of this manuscript and for the constructive feedback. We would also like to show our deep appreciation to Dr Samuele Chilovi (Instituto de Filosofía, CSIC, Madrid) and Dr Chiara Valentini (University of Bologna) for their comments and valuable suggestions.