Cambridge Legal Theory Discussion Group (CLTDG): 'The Puzzle of the Continued Validity of a Legal Norm'

Hafsteinn Kristjansson (Oxford) “The Puzzle of the Continued Validity of a Legal Norm”

Paper abstract: In virtue of what does a legal norm continue to be valid, especially when its legal basis loses its force? A norm is valid as law (valid law) if it has a sufficient basis in a source of law identified by a norm of recognition of the legal system. Some legal norms are created according to the law (norms of change). They are valid in two different senses at once. They are valid according to the law (created according to the norm of change) and valid as law (identified by a norm of recognition). In which case, a norm of recognition and change interlock. The norm of recognition identifies what is created according to the norm of change as a source of law. When the norm of change according to which the legal norm was created loses its force, the legal norm is no longer valid according to the current law (the norm of change), but it continues to be valid as law (valid law) if it continues to be identified by a norm of recognition. In which case, the norm of recognition refers to a norm of change that was, but no longer is, in force. And it ceases to be valid law in the legal system when it is no longer identified by a norm of recognition even if it is not invalidated as such. This is the basic solution to the puzzle of the continued validity of a legal norm and it works both at the constitutional level and for laws lower in the chain of validity. The reasons for why it works are that ultimate norms are not confined to the ‘end’ of the chain of validity but can operate at every level and norms of recognition and change interlock. However, the solution is more complex because norms of interpretation and applicability need to be considered as well.

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The Paper: https://bit.ly/kristjanssonpaper

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