Legal Validity Of The Law Of Recognition Essay

Better Essays
Some legal positivists such as Hart argue that legal validity is dependent upon the sources it derives from, rather than its moral substance or legally valid norms. This viewpoint falls under the sources thesis, which focuses on the rule of recognition, which tells us where a law arises from, rather than the separation thesis, where content is essential to legal validity. Officialdom is crucial to Hart’s understanding of a legal system, as it is the officials’ responsibility to accept and apply the rule of recognition. Hart consequently reasons a rule of law will be legally valid, so long as it conforms to the requirements of the rule of recognition. However in accordance with legal validity, when legal sources are concerned, the dimension of legal validity is formal validity, this tends to concede with a ‘successful enactment’ using law-making procedures. Whereas legal norms fall under ‘material validity’ as they are a matter of interpretation, this plays a significantly limited role. Moreover Hart, rightly argues there is a tendency for judges to refer to law as what it ‘ought to be’, which reduces discrepancy between law and morality. The ‘model of interpretation’ on what the law ‘ought to be’ arises, yet Hart argues one should not implicate a judgement in morality, but instead one should suggest a reflection of criticism, which may or may not have moral connotations. Additionally the open texture of law, thanks to the rule of adjudication allows officials to
Get Access