Legal Validity

Author(s): JOSEPH RAZ

Source: ARSP: Archiv fr Rechts- und Sozialphilosophie / Archives for Philosophy of Law and
Social Philosophy, Vol. 63, No. 3 (1977), pp. 339-353
Published by: Franz Steiner Verlag
Stable URL: http://www.jstor.org/stable/23679040
Accessed: 04-12-2015 17:28 UTC
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Legal Validity
BY JOSEPH RAZ, OXFORD
1. Its Nature
Rules,

orders,

contrais,

wills,

sales,

and

marriages

many

others

can

be le

gally valid or invalid1. We shall confine our discussion to the legal validi
ty of rules but several of our conclusions apply with equal force to other
cases of legal validity.
A rule which is not legally valid is not a legal rule at ail. A valid law is
a law, an invalid law is not. Similarly a valid rule is a rule and an invalid
rule is not a rule at all. This last point is controversial. Many hold that an
invalid rule is a rule which lacks the property of being valid (or is it that
it has the property of being invalid?). This view is particularly appropria
te if rules are identified with propositions or Statements or some norma
tive analogues of them,e.g.,imperatives, prescriptions or deontic proposi

tions. On this view a legally binding raie such as "Parents must support
their children" is a deontic proposition which is accepted or endorsed
within a certain legal system. Endorsement of a deontic proposition (or
in diffrent thories of
imperatives) is conceived as being somehow
belief
with
to
analogous
respect to ordinary propositions.
I do

not

wish

to deny

that

persons

(though

perhaps

not

states

or ot

her organizations) may have attitudes to deontic propositions or to im

peratives which are analogous to belief if not identical with it. But ail this
has

to do

nothing

with

rules.

Rules,

but

not

propositions,

are reasons

for

action ('I did it because of the raie prohibiting so and so' but not 'I did
it because of the deontic proposition (or the imperative) that so and so'2 ).

ru
Are all rules either legally valid or legally invalid? I shall assume so. Voidable
is a special form of repeal. Sometimes
until avoided-which
some of their
On other occasions
when avoided they are repealed retroactively.
les are often valid

in order to protect the interests of people who

are maintained
relied on them in good faith or for other reasons. I think that it is best to regard
as due to the opration of some further rules which apply
all such consquences
consquences

to some of the cases of this special repeal through voidability.

Strictly speaking it is not the rule but the fact that it exists i.e. is valid, which
la reason.

ARSP

(Archiv fr Rechts- und Sozialphilosophie),

Franz Steiner Verlag GmbH, D-6200

Bd. LXIII/3
Wiesbaden

(1977)

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Joseph Raz

340

Rules, but not propositions or imperatives, can be reasons for belief in or

endorsement of some propositions or imperatives ('I believe that I ought
to support

mother

my

because

mie

of the

(but

not

because

of the deon

tic proposition) that children ought to respect their parents')

of the

considrations

These

role

of rules

as reasons

may

that

suggest

mies if not propositions or imperatives are facts, sihce facts are reasons
both for action and for belief. The existence of a mie is admittedly a fact.
We can say 'It is a fact that there is a mie that..and
if such a State
ment is tme then it is a fact that there is such a mie. Yet even if every
tme or justified deontic Statement states a fact ('the fact that one ought
to 4> ', etc.) it does not follow that every such Statement is a statement
of a mie. On the contrary this is clearly not the case. Consider the follo
wing three Statements: (1) Every one ought to keep his promises. (2)
Women ought to keep their promises. (3) John ought to give me 5 (be
cause he promised to). Clearly only the firststatement states a mie (I am
assuming that ail three are true, correct, or justified). The other two are
true in virtue of the raie stated by the first.They themselves do not Sta
te rales.

They

It is not
te mies

apply

part

and

a rale

others

do

not3.

or concrete

to general
here

of my purpose
For

to explain

our

prsent

situations.
why

some

purpose

we

Statements
can

Sta

rely on our

linguistic intuitions which tell us that only to some deontic sentences we

can prefix 'it is a raie that' while preserving the trath value of the senten
ce4 .

In

the

of the law

case

we

have

perhaps

a clearer

grasp

of the way

to

apply this distinction than with some other kinds of mies. The reason is
that laws are normally the product of authoritative acts (either lgislation
or judicial law making) and at the very least we feel that Statements clo
sely

describing

ter claim

the

product

to be regarded

In Practical

Reason

ments of reasons

and Norms,

for action

a special

of one

or more

as statements

authoritative

of a mie

London

are Statements

than

acts

Statements

have

a bet

which

ap

1975, cl. 2,1 argued that not all State

of rules on the ground that rules play

role in practical reasoning which is significantly diffrent from that of

ordinary reasons. My prsent argument is more far reaching and entails that not
every Statement of a rule-based reason is a Statement of a rule. The clarification
of this distinction is the function of the doctrine of the individuation
of rules. I
outlined

a doctrine

System, Oxford
When discussing

of the individuation
of legal rules in The Concept of a Legal
cannot be extended to all other rules.
1970, but its conclusions
the law the relevant Operator is there is a law that' - not 'it is

the law that'.

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341

Legal Validiy

ply the rule to particular circumstances. This test does not apply to
non-institutionalized

rules

such

as moral

rules

or customary

where

rules

diffrent considrations fulfl a similiar role.

Rules,
fied
which

are

therefore,

or

trae
is

prescriptions

described

not

some

by

or

Statements

or Statements.
normative

not

prescription?,

They

are

the

things

Statements

and

such

evenjusti
of

content
Statements

are trae if the rales exist, i.e. are valid, and not trae if the rales do not
exist, i.e. are not valid. Henee our original observation that an invalid
rale

is not

a rule:

non-existent

stone

is not

a stone,

though

we

can

talk about such stones and describe some of their properties as we can do
about invalid rales.
These remarks may lead one to conclude that explaining what is legal
validity is no more nor less than explaining what is law. This, however, is
a mistake. The nature of law is explained primarily by explaining what
are legal Systems. Validity, on the other hand, pertains to the rales of the
System. If we can say of the system itself that it is valid this is only in
the sense that its rules are valid5. But now another proposition may sug
gest itself. Since it is clear that a legal system consists of legally valid ra
les6 is it not the case that legal validity means simply membership in a le
gal system. When asking for the nature of legal validity we are, this sug
gestion goes, asking for the criteria of membership in a legal system.
Nevertheless, despite its initial attractiveness this suggestion must be
rejected. Even if we assume that 'legally valid according to system s' and
'a law

of system

s' are

co-extensive

necessarily

we

cannot

conclude

that

they mean the same. The question is what is a reason for what. Is a rule
part

of a system

gal system?

because

It seems

it is valid

intuitively

or is it valid

clear

that

there

because
are two

it is part
diffrent

of a le
answers

to these questions. Those who want to explain validity as membership of

a system would presumably maintain that despite our intuitions the two
terms are identical in meaning and that both questions should be ans

Or that they are systemically

system. See section 2 below.
Here
norms
legal

valid

namely

valid because

they belong

to such a

I use 'rules' to include principies and ail other kinds of

throughout
laws. I am considering in this article momentary
as well as non-normative
systems only (cf. The Concept of a Legal System, p. 34f.). Obvious small
and

adjustments

are needed

for the conclusions

to apply

to non-momentary

systems.

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legal

Joseph Raz

342

wered negatively. This is wrong if only for the simple reason that not
every legally valid rule is part of the legal System according to which it is
valid.
It

is of course

force

many

mies

well

known

which

are

that
not

most

part

Systems

legal

of the

and

recognise
The

system.

mies

en

of private

international law of a legal system s are laws establishing the conditions

under which foreign laws are to be held legally valid according to s. Le
Systems

gal

often

the

recognise

rights

of various

religious

to reg

groups

late certain aspects of their members' life according to their religious laws.
They recognise the right of various ethnie or tribal groups to be govemed
in certain respects by their customary ways. And they recognise the right
of voluntary associations to make mies for the rgulation of some activi
ties of their own members. In ail these cases the mies recognised and en
forced
selves

in s are legally
part

valid

of the legal

in accordance

with

s but

are not

them

thereby

s7.

system

Since validity according to law is broader than membership of the le

gal system, since though ail laws are legally valid not every legally valid
mie is a law, it is clear that the notion of membership in a legal system
cannot completely explain legal validity. The two notions though related
are partly independent of each other.
The best route to the understanding of 'legally valid' is by attending
to the fact that it is used interchangeably with 'legally binding'8. A valid
mie

is one

has

legal

which

has

effects9.

normative

To

avoid

effects.

A legally

misunderstanding

valid
these

mie

is one

statements

which
should

perhaps be augmented to read: A legally valid mie is one which has the
normative effects (in law) which it claims to have. If it is a legal mie pur
porting to impose an obligation on x then x is under this obligation be
cause this mie is a legal mie. If it is a raie purporting to confer a right or
power

on

y then

y has

the

right

mie is a legal mie.

or power

in virtue

of the

fact

that

the

See more on this point in Practical Reason and Norms

pp. 152-4.
the law 'binding' is used more extensively than 'valid'. We
talk, e.g., of
morally binding rules rather than morally valid ones, of binding promises not
of valid ones. I will use 'valid'
with 'binding' and the analysis of
interchangeably
fered is meant to apply to both. The diffrence between
'binding' and Valid' in
all such contexts does not affect their normative
signifcance.
Outside

For the precise

force of 'legally'

in such contexts

see the end of the next section.

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343

Legal Validity

It is evident that this conception of the nature of the validity of rules

can

easily

be

extended

to

explain

the

validity

of contracts,

sales,

wills,

marriages, etc. They are all valid if and only if they have the normative
they

consquences

purport

to have.

work it will be clear that I have so far

simply adapted and explained his notion of validity. He identifies the va
lidity of mies with their existence and he claimed that to say of a rale
that it is valid is to say that it ought to be obeyed. I simply tried to ex
plain and to generalize this by saying that a me is valid means that it has
To those familiar with Kelsen's

the

normative

consquences

it purports

to have.

But

no sooner

does

one

state this view than its inherent difficulties become apparent.

In the long standing debate between natural lawyers and positivists
the former adopted the view that 'a valid me' means a justified one, a
rale that one is justified, indeed required, to observe and endorse. Positiv
ists on the other hand traditionally hold that the validity or at least the
legal validity of a me means not its justification but that it is recognised
as enforceable by tests set down in an efficacious legal System, one which
is in fact followed regardless of whether or not it should be. In following
Kelsen we have adopted the natural law view on the meaning of 'validity'.
This poses two questions: How could such a view be reconciled with the
fact that law rgultes its own validity, namely that it can and does set
social and factual tests for validity - quite unlike those determining the
validity of moral mies. Secondly how can it be that in stating what the
law is we are not endorsingits moral merit.
2. Systemic Validity
It seems not unreasonable to identify the moral validity of mies with
their justification and identify justification with the existence of a moral
mle. Moral validity is presumably established by argument and the way
to argue that a mle is morally binding or valid is to show that it is justi
fied,

that

the requirements

and

restraints

it imposes

ought

to be observed.

Here validity and justification seem particularly close. But law is diffr
ent. The legal validity of a mle is established not by arguments concerning
its value and justification but rather by showing that it conforms to tests
of validity laid down by some other mies of the system which can be cal
led mies of rcognition. These tests normally concern the way the mle
was enacted or laid down by a judicial authority. The legal validity of

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Joseph Raz

344

rules of rcognition is determined in a similar way except for the validity

of the ultmate rules of rcognition which is a matter of social fact name
ly those ultmate rules of rcognition are binding which are actually prac
tised

and

In

followed

order

by the courts10.

to understand

how

and

the social

character

factual

of the law

can be reconciled with the view of validity as justification we must con

sider the sense in which law is a social system.
There is one obvious sense in which law is social. A legal system may
be in force in a certain community or it may not. It is in force if it is ef
fectively followed, observed and enforced within the community. It is not
to our

pertinent

here

purpose

to work

out

a test

for determining

when

legal system is in force in a certain community. Suffice it that ail agree

that its being in force is a matter of the efficacy of the law in that society.
But so far as this considration goes the same is true of moral rules. They
may be observed followed and enforced by a certain community (and I
don't mean enforced by law) or they may be disregarded and violated
more often than not. The precise test for the law being in force differs
from that by which we judge whether a certain moral code is the moral
code

of a community.

For

one

thing

morality,

unlike

the

law,

does

not

rest on legislative and adjudicative institutions. But in essence just as we

can talk of the laws of England or Germany so we can talk of the morali
ty of the English or the Germans and the tests in either case are tests of
the social
There

efficacy

of the rules.

is, however,

a second

way

in which

law

is a social

fact:

ail laws

have a source. The validity of every law is conditioned on the existence

of certain

facts:

certain

acts

of parliament

or of a minister

or of a town

council, certain dcisions of the courts, a general pattern of behaviour

of the
these

general
are

population

law-creating

facts.

to the

amounting
The

existence

existence

of every

of a custom,
law

dpends

etc.,

also

on

the non-existence of law-repealing facts. "Law rgultes its own cra

tion" said Kelsen. The law itself determines which facts create law- and
which abrgate them.

I am here following Hart's doctrine of the rule of rcognition in a slightly modi

fied form. Cf. Hart, The Concept of Law, 1961, pp. 92-107,
and my "Legal
Principies and the Limits of Law", Yale Law Journal, 1972. For the reasons for
Doctrine of the Basic Norm",
preferring Hart's view to Kelsen's see my "Kelsen's
American

Journal of Jurisprudence,

1974.

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345

Legal Validity

The view of law as a social fact, as a method of the Organization and

rgulation of social life stands or falls with the two theses mentioned. At
its core lie the theses that (1) the existence of a legal system is a function
of its social efficacy, and that (2) every law has a source. The obvious
importance of the firstthesis should not obscure the equal importance of
the second. It is vital for the conception of law since it alone can guaran
tee that the content of law can be a determined in an objective and value
neutral way. Since the validity of a law dpends on its source and since
the source
the

validity

is an action
of laws

or a series
revolve

on

of actions,
factual

and

doubts

discussions

on issues

questions,

about
of

susceptible

objective dtermination to which one's moral or political views are essen

tially irrelevant.
Explaining the function and importance of the sources thesis does not,
however, help to reconcile it with the view of validity as justification. It
cannot be claimed that the justification view of validity entails the sour
ces thesis. But it is clear that the two are compatible. When considering
the

validity

of a law

as a law

one

considers

those

reasons

for adhenng

to

the rule which dpend on its being a law, i.e., part of legal system in force
in a certain Community. The legal validity of the law prohibiting theft
does

not

rest

on

arguments

concerning

the

right

to

property

and

the

wrong done in infringjngit. It rests on the need to have effective law and
the justified authority of those who make it.
Let us distinguish between the validity of a law or a rule, which means
that it ought to be obeyed for some reason or other, and its systemic vali
dity as a law, as a legal rule, which means that it ought to be obeyed be
cause

it is part

of a legal

system

which

is in force

in the country

conver

ned. While the direct (i.e. non-systemic) validity of a mie tums on the
goals and values which it serves or harms, its legal, systemic, validity .d
pends on the fact thatit belongs to a given legal system and that it is justi
fied as such. Henee proof that the law rests on a source which is recogni
sed by the system is an essential part of the argument to its legal validity
just as we expect it to be. Nor is this dependence of validity on a factual
source unique to the law. A child ought to obey his parents' commands.
Their commands addressed to him are valid. Some are directly valid, some
times there are good reasons for behaving as one is commanded. But
regardless of whether or not this is the case ail parents' commands are sy
stemically valid, i.e. valid because issued by a legitmate authority, be
cause

they

have

a source

and

because

there

are

reasons

for following

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or

346

Joseph Raz

ders

from

coming

that

source.

To conclude: A rule of law is valid if and only if it has the normative

consquences it purports to have. It is legally valid if and only if it is va
lid because it belongs to a legal system in force in a certain country or is
enforceable in it, i.e. if it is systemically valid. Similarly an obligation is a
legal obligation and a right is a legal rightif and only if they are an obliga
tion or a right in virtue of a rule which is legally valid. Validity prsup
poss membership and enforcibility. Judgments of membership and of
enforcibility are judgments of social fact. Judgments of legal validity are
normative

judgements

on

based

partly

those

fact.

3. Statements from a Point of View

I have showed how the justification view of legal validity is compatible
with the dependence of legal validity on factual sources. It remains to
examine the other difficulty facing the justification view: the interprta
tion

of detached

Statements.

legal

A detached legal Statement is a Statement of law, of what legal rights

or duties

a detached

Yet
ce

even

an

of

the

about

their

normative

ordinary

speaker

a statement

not

have,

people
not

actions,

to the

clients,

law

to this

category.

about

statement

does

normative

statement.

normative

view

teachers'

expositions

I am

not

or actions

not carry
Its

implying

that

does

students
or law

lawyers

or

the law.

not

for

commit

advice

Lawyers'

of their

attitudes

about

the fll normative

utterance

it expresses.
in front

beliefs,

people's

attitudes

beliefs,

to their

often
teachers

belong
do

not

believe in the validity (i.e. justification) of the law with which they deal.
that

Only

often

do

they

not

commit

to such

themselves

beliefs

when

ac

ting in their professional capacity.

As

we

have

already

noted,

the

analysis

of detached

normative

State

ments is a crucial test for every positivist theory of law. On the one hand
their existence is a major source of strength. It shows that normative lan

guage can be used without a fll normative commitment or force. But on

the other hand it is far from easy to explain what sense normative utter

ances

have

Benthamite

when

they

do

answer

was

to

not

carry

deny

that

their
they

fll
are

normative

normative

force.
utterances.

The
'X

has a duty to 0' means 'x is liable to a sanction if he does not 0'. 'A law re
quires that x 0's' means 'a sovereign commanded x to 0' etc. Later positi
vists admitted that 'law', 'duty', 'a right' etc. have their normative uses

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347

Legal Validity

but assumed that they carry a purely factual sense when qualified by the
or prefaced

'legal'

adjective

by the Operator

"it is the law

that"

and

their

quivalents. Thus qualified they mean no more than that the rule or duty
is recognised by a generally efficacious legal system. But this is essentially
no

more

than

a more

of Bentham's

version

sophisticated

view.

Law

is

identified not necessarily as the product of lgislation but as a practice

of courts and other officiais and it includes not only mies which are direct
ly recognised by them but also those they are implicitly committed to in
view of their existing practices.
H.L.A. Hart recognising that even the sophisticated Benthamitt view
distorts

the

nature

of many

Statements11

legal

called

all such

Statements

external and insisted on the importance of internal Statements to the ana

lysis of law. Most ordinary Statements about the law by Citizens, the po
lice, lawyers, judges, law teachers and students are, according to Hart, in
ternal

Statements.

External

Statements

about

the law

are Statements

about

people's practices and actions, attitudes and beliefs concerning the law.
Internal Statements are those applying the law, using it as a standard by
which to evalate, guide or criticize behaviour. Internal Statements are
thus

full-blooded

thus

a sign

normative

of endorsement

Statements.
of the

rule

internal

Making

One

concerned.

Statements

endorses

is

a mie

if

one uses it regularly in guiding, evaluating and criticising those actions to

which the mie applies. Endorsement of a mie includes, therefore, a
to

disposition

make

internal

s tatemen

ts12.

It is crucial

to the understand

ing of Hart's position to understand that his notion of acceptance or en

dorsement of a mie does not entail moral approval of it. A man may hold
a mie
equally

to be

morally

a man

for no reason

may

justified
endorse

and
and

he may
follow

endorse
a mie

it for this reason.

for any

other

But
or

reason,

at ail.

It seems to me that Hart is right in saying that judges and ail other
officiais regularly involved in applying and enforcing the law do accept
and follow it. They may have rservations concerning the moral justifia
bility of the law but nevertheless they accept and apply it for their own

I am using 'legal Statements' loosely to desgnate all kinds of Statements

the law. Some such statements are properly analysed on the sophisticated
thamite model.
Though,
amount

of course,
mere
to endorsement.

occasional

resort

to

internal

statements

about
Ben

does

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not

Joseph Raz

348
reasons

social

(salary,

involvement,

etc.)

or for no

reason

Their

at ail13.

legal Statements normally reflect this attitude. They are internai, fully
committed normative Statements. When they State the legal validity of a
rule they do mean to assert its binding force, though not necessarily its
moral

force14.
in

's interest

Hart

internal

Statements

was

a resuit

partly

of his view

that a legal system is in force in a certain community only if at least the

officiais of the system and normally many others in the community ac
cept its laws and follow them, such acceptance being characteristically
manifested
and

ternal
existence

by

the use

internal

of internal

Statements

of a third

His

Statements.

tends,

of statements.

category

between

dichotomy

to obscure

however,

Their

from

existence

ex

sight

was

the

realized

by Kelsen for it is crucial to anyone holding his view on the meaning of

Validity' and rejecting Natural Law at the same time15.
If the internai statements are characteristic of the judge, and of the
law-abiding Citizens, this third kind of statement is characteristic of the
lawyer

and

the law

teacher

(who

of course

often

make

internai

and

exter

nal statements as well) for they are not primarily concerned in applying the
law

to themselves

or to others

but

in warning

others

of what

they

ought

to do according to law. In an illuminating passage Kelsen contrasts the

behaviour of the anarchist acting as a citizen making fully normative in
ternai

statements

with

the anarchist

acting

as a lawyer

or scholar:

I used as an example for the fact that the

"In earlier publications
presupposi
tion of the basic norm is possible but not necessary: An anarchist does not prsup
The anarchist emotionally
pos the basic norm. This example is misleading.
rejects
the law as a coercive order; he objects to the law; he wants a community
free of
constituted
without a coercive
coercin, a community
cal attitude, based on a certain wish. The sociological

order. Anarchism
interprtation,

is a politi
does

which

A judge may occasionally

hold it his moral duty to enforce a law despite his be
lief that the law's subjects are not really bound by it. But he cannot maintain
such a position with respect to the law in
general.
In other words, all internai statements are of a kind fully normative. Some are
on moral grounds, some on other grounds but their basis does not re
supported

suit in a diffrent kind of normativity or

bindingness.
Hart, of course, does not accept the Kelsenite view of the nature of validity.
He,
therefore, did not have to provide an account
of such statements in order to
maintain his rejection of Natural Law.

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349

Legal Validity

not prsuppos
a basic norm, is a theoretical attitude. Even an anarchist, if he were
a professor of law, could describe positive law as a System of valid norms, without
having to approve of this law. Many textbooks in which the capitalist legal order is
described

as a system of norms constituting obligations,

authorizations,
rights, juris
are written by jurists who politically disapprove of this legal order'"6.

dictions,

Legal scholars and this includes ordinary practising lawyers can

use normative language when describing the law and make legal State
ments without thereby endorsing the Law's moral authority. There is a
special kind of legal Statement which, though it is made by the use of or
normative

dinary
ordinary

legal

terms,

does

Statement.

To

not

carry

examine

the

same

normative
we

its nature

force

should

of an

concntrate

attention on the activities of lawyers. But it is a mistake to think that

this kind of statement is unique to lawyers or to legal contexts. It is to be
found

whenever

a person

advises

or informs

on his normative

another

si

tuation in contexts which make it clear that the advice or information is

from

given

of view

a point

or on

the

basis

of certain

which

assumptions

are not necessarily shared by the speaker.

Imagine an orthodox but relatively ill-informed Jew who asks the ad
vice of his friend who is Catholic but an expert in Rabbinical Law. What
should I do, he asks, clearly meaning what should I do according to my

religion, not yours. The friend tells him that he should do so and so. The
point is that both know that this is not what the friend thinks that he re

ally ought to do. The friend is simply stating how things are from the
Jewish

Orthodox

of view.

point

It is important

not

to confuse

such

State

ments from a point of view with statements about other people's beliefs.
One

reason

in our

is that

example

there
be

may

be no one

may

who

has

such

a very uncommon

expressing

a belief.
view

The

friend

on an obscure

point of Rabbinical Law. Indeed Rabbinical law may never have been en
dorsed

or practised

statements
view

then

be
you

by anybody
as

interpreted
should

etc.'.

not

even

conditionals:
Rather

they

the inquiring
'If
assert

you

Jew.

Nor

can

this

point

of

is the case

from

the

accept

what

such

relevant point of view as if it is valid or on the hypothesis that it is - as

Kelsen expresses the point - but without actually endorsing it.
Much of the discourse about the law falls according to Kelsen into this

The Pure Theory of Law,

2nd ed., Berkeley

- London

1967,

p. 218.

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Joseph Raz

350

categoiy which I called statement from a point of view17. This is especi

ally true of Statements by legal practitioners and scholars acting in their
professional capacity. The main diffrences between such contexts and
the one of our imagined example is that the clear assumption that the
Catholic does not share the point of view from which he speaks whereas
the Jew does share it is missing. The lawyer acadmie or practising
may or may not believe in the moral validity of the law. His reader or
client may or may not share such beliefs. Such questions are irrelevant to
the interprtation of such Statements even though the answers to them
as in our

example

may

be known

cases.

in some

The analysis offered here of statements from a point of view is incom

plte. Kelsen did not have a complete explanation of such statements. In
fact what I offered here is already an adaptation of Kelsen 's position. We
still await a fll analysis of such statements. But Kelsen deserves the cre
our

dit for drawing

The

literature

from

confusions

many

of such

to this most

attention

and

discourse

mistakes

it not

had

class

important

of normative

on the nature

would

of statements.
been

have

saved

the prevalence

overlooked

statements.

4. Validity and Positivism

If indeed statements from a point of view are a distinct type of statement
then

our

view

con troversy

of the traditional

between

Natural

Lawyers

and

Positivists is radically transformed. The main strength of the Positivist's

position is in its insistence that law is essentially a form of social Organi
zation.
tially

The

main

moral.

necessarily

contention

These

of the

formulations

mutually

Natural

suggest

exclusive.

The

law

is that

Lawyer
that

may

the

have

two

more

law

positions
than

one

is essen
are

not

essential

property. There is no denying, however, that many of the proposed Na

tural Law thories are incompatible with positivism18. This impression of
I am here presenting this view rather than defending it For a more detailed de
of Kelsen and an examination
of the way this doc
fense of this interprtation
trine is integrated in his general legal theory see my "Kelsen's
Doctrine of the
Basic Norm", American Journal of Jurisprudence,
1974. For my own develop
ment of this theme see Practical Reason and Norms, London
1975, pp. 170
177.
In Practical

Reason

kinds of Natural

pp. 162ff., I tried to distinguish between two

with Positivism and those not.
those compatible

and Norms,

Law Theories,

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351

Legal Validity

mutual incompatibility is enhanced by two semantic theses which are ge

endorsed

nerally

by

Natural

Lawyers:

that

Firstly,

normative

terms

like

'a right', 'a duty', 'ought' are used in the same sense in legal, moral and
other

normative

Statements.

that legal

Secondly,

Statements

are moral

Sta

tements. E.g. when one states 'It's John's legal duty to repay the debt'
one is asserting that John has a (moral) duty to repay the debt arising out
of the law.
Positivists reject the second semantic thesis. Even if the law is essenti
ally moral - the cautious positivist would argue it is clear that establis
hing the moral merit of a law is a diffrent process relying on diffrent
considrations than establishing its existence as a social fact. To the Posi
tivist the identification of the law and of the duties and rights it gives rise
to is a matter of social fact. The question of its value is a furtherand se
parate question. Since one may know what the law is without knowing if

it is justified there must be a possibility of making legal Statements not

involving commitment to its justification. The Positivist need not deny
that many legal statements do carry such a commitment. Firstly, it is
admitted that whether or not the law is in fact justified, if it is in force it
is held to be so by some of its subjects, and they are ready to make fully
committed statements. Secondly, the law - unlike the threats of the high
wayman Claims to itself legitimacy. The law prsents itself as justified
and demands not only the obedience but the allegiance of its subjects.
The Positivist need not deny that the primary kind of legal Statement is
the

committed

want

to

tached

Hart's

Statement
as we

allow,

i.e.

statements,

observed,
ones

internal

for the

which

not

he would

but

of non-committed

possibility

though

Statement

de

are nevertheless

committed

normative. Thus the Positivist is bound to reject the Natural Lawyer's se

cond

semantic

thesis.

It may be thought that this entails the rejection of the first thesis as
well.

For

legal

contexts

statements?

if normative
aren't
But

terms
the

in fact

are

statements
my

very

regularly
made
arguments

used

in their

by their
so

use

ordinary
always

far show

sense

in

committed

that

the first se

mantic thesis is not essentially a Natural Lawyer's thesis. It is one that

Positivists can and should adopt for only through it and the doctrine of
statements from a point of view we can understand the possibility of de
tached

statements

which

are all the same

normative

and

not

merely

state

ments about other people's actions or beliefs, etc. Admittedly statements

from a point of view are parasitic on the full-blooded normative State

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Joseph Raz

352
ments.

That

is, there

is normally

no

point

in making

statements

from

point of view unless in relation to a society in which people are often re

ady to make the fll blooded statements. If there is nobody whose point
of view it is why should we be interested in it? This shows how the Natu
ral Lawyer's second thesis is modified rather than rejected outright. If
this is another pointer that the gulf between Natural Lawyers and Positi
vists need not be as unbridgable as is sometimes imagjned then it is wel
come

for this reason

as well.

JOSEPH RAZ
Legal Validity
Summary

The following theses are explained and defended: (1) A valid law is a law
which

has

the normative

it purports

consquences

to have,

i.e.

it succeeds

in imposing the duties and conferring the rights it purports to impose and
confer. (2) A legally valid law is a law which is valid because it belongs to
a legal system. (3) Though most Statements of legal rights and duties are
simply Statements of rights and duties people have because of the law,
some

such

ce of such

Statements
rights

are detached,

or duties

but

only

that
their

is they

do

existence

not
from

assert

the existen

the legal

point

of

view.

JOSEPH RAZ
La validit lgale
Rsum

L'auteur exposera et soutiendra les thses suivantes: (1) Une loi valable
est

une

loi

dont

les

consquences

normatives

sont

celles

prvues;

c'est

dire qui russit prescrirg les devoirs et confrer les droits qu'elle
prtend prescrire et confrer. (2) Une loi lgalement valable est une loi
qui est valable parce qu'elle appartient un systme lgal donn. (3)

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353

Legal Validity
Bien

que

la

simplement
certaine

des

plupart
des

droits

catgorie

de

noncs

et des
ces

de

devoirs

noncs

droits
que
est

et

de

devoirs

la loi prescrit
dtache

aux
c'est

lgaux

nonce
une

citoyens,
dire

qu'elle

affirme, non l'existence de tels droits ou de tels devoirs en tant que tels,
mais simplement leur existence du point de vue lgal.

JOSEPH RAZ
Rechtsgeltung
Zusammenfassung

Die folgenden Thesen werden erlutert und verteidigt: (1) Ein gltiges
Gesetz (law) ist ein Gesetz, das die normativen Konsequenzen hat, die es
zu haben vorgibt, d.h. es gelingt ihm, die Pflichten aufzuerlegen und die
Rechte zu verleihen, die es aufzuerlegen und zu verleihen vorgibt. (2) Ein
rechtsgltiges Gesetz ist ein Gesetz, das deshalb gltig ist, weil es zu

einem Rechtssystem gehrt. (3) Obwohl die meisten Feststellungen ber

rechtlich verliehene Rechte und rechtlich auferlegte Pflichten schlicht
Feststellungen von Rechten und Pflichten sind, die man auf Grund des
Gesetzes (law) hat, sind einige dieser Feststellungen distanzierte (detach

ed) Feststellungen, d.h. sie behaupten nicht die Existenz solcher Rechte
und Pflichten, sondern lediglich ihre Existenz vom Standpunkt des
Rechtssystems

aus.

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