The Ethical Concept of Validity

The subject-matter of the ethical concept of validity is moral validity. norm is valid morally if it is morally justified. An ethical concept of validity underlies the theories of natural law and the law of reason.

C. The Juridical Concept of Validity

The sociological and the ethical concepts of validity are pure in the sense that they need not necessarily include elements of the other concepts of validity. It is different for the juridical concept of validity. Its subject-matter is legal validity. If a norm or a system of norms is not socially valid at all, that is, fails to manifest the slightest social efficacy, then this norm or system of norms cannot be legally valid either. The concept of legal validity necessarily includes, then, elements of social validity. If it includes only elements of social validity, it is a positivistic concept of legal validity, whereas if it also com­prises elements of moral validity, it is a non-positivistic con­cept of legal validity.

The fact that a fully developed concept of legal validity qua positivistic concept includes elements of social validity and qua non-positivistic concept includes elements of both social and moral validity does not preclude the formation of a concept of legal validity in a narrower sense. Such a concept refers exclu­sively to specific characteristics of legal validity and is, then, a concept in contrast to the concepts of social and moral validity. Such a concept of legal validity is reflected in the statement that a norm is legally valid if it has been issued in the duly prescribed way by a duly authorized organ and does not violate higher- ranking law, in short, if it is authoritatively issued.

The juridical concept of validity poses two problems, an internal and an external problem. The internal problem is that the definition of legal validity seems to be circular in that it presupposes legal validity al the outset. How else should one say what a ‘duly authorized organ' is or what the issuance of a norm ‘in the duly prescribed way’ amounts to? This internal problem leads to the problem of (he basic norm. The external problem lies in determining how the juridical concept of validity is related to both of the other concepts of validity. The relation to the ethical concept of validity has been dis­cussed above in the context of legal positivism, the relation to the sociological concept of validity is still outstanding. The external problem will be aired here first, in the course of which, for systematic reasons, the relation of the juridical concept of validity to the ethical concept of validity will be taken up once again.