The Validity of Law Normativity, Effectiveness, and Legitimacy

SW 21 The Validity of Law Normativity, Effectiveness, and Legitimacy

Convenors: JJ Moreso; Carsten Heidemann; Gonzalo Villa Rosas

Contact: legalvalidity.sw@gmail.com

 

 

The concept of validity lies at the core of both legal practice and legal theory, yet its precise meaning remains far from settled. The issue becomes even more pressing when one considers its close relationship with other key legal notions. What does it mean for a legal norm to be valid? What does it mean for an entire legal system to be valid? How does validity differ from concepts such as existence, effectiveness, or legitimacy? And what grounds the validity of legal norms? Can validity be fully explained within the legal system itself, or does it presuppose extra-legal foundations? These and related questions will be addressed by our panelists, coming from diverse philosophical and legal traditions. We invite contributions that explore the conceptual, normative, and historical dimensions of legal validity in a pluralistic and critical spirit.

 

Suggested Topics (include but are not limited to):

• The concept of legal validity: positivist and non-positivist perspectives
• Legal norms, legal systems, and legal validity
• Existence, effectiveness, and validity
• Legal rules, legal principles, and legal validity
• Legal validity and legitimacy
• Contemporary debates on normativity and the authority of law
• Comparative perspectives on validity in different legal traditions

A compilation book of the papers presented at the Special Workshop will be published in a journal or in a book.

 

Language: The sessions will be held in English.

 

Total number of participants: 11

 

Total time requested for the workshop: 2 Sessions (8 hours).

 

Please submit your abstract by March 30, 2026, to the following email address:

 

legalvalidity.sw@gmail.com

 

 

 

 

 

 

 

Speakers,

and Lecture’s Title[*]

 

 

Speaker: Professor Brian Bix (University of Minnesota)

Lecture’s title: The Nature of Legal Normativity

 

Speaker: Professor David Duarte (University of Lisbon)

Lecture’s title: Competence and Validity

 

Speaker: Professor Kenneth Ehrenberg (University of Surrey)

Lecture’s title: Legal Validity and Legal Legitimacy

 

Speaker: Professor Michael Steven Green (William and Mary Law School)

Lecture’s title: Validity under Private International Law

 

Speaker: Dr. Carsten Heidemann (Schleswig-Holstein Bar Association)

Lecture’s title: Bruno Celano’s disquotational theory of validity and quasi-realism

 

Speaker: Professor Matthias Klatt (University of Graz)

Lecture’s title: Legal Validity and the Separation Thesis

 

Speaker: Professor Yahya Berkol Gülgeç (Bursa Uludağ University)

Lecture’s title: Axio-Factual Validity: Emergence of the Supreme Norm from a Legal Positivist Perspective

 

Speaker: Professor Maris Köpcke Tinturé (University of Oxford)

Lecture’s title: Validity’s Revolutionary Past

 

Speaker: Professor Andrei Marmor (Cornell University)

Lecture’s title: Validity and Grounds

 

Speaker: Gonzalo Villa-Rosas LL.M. (Center for Research in Philosophy and Law. Externado University of Colombia)

Lecture’s title: Is Julius Merkl a Positivist? On Legal Validity, Legal Competence, and the Regulative Function of Legal Science

 

Speaker: Professor Monika Zalewska (University of Łódź)

Lecture’s title: Hans Kelsen’s Concept of Validity as an Ideal Type

 

 

 

 

 

 

Abtracts List

 

ABSTRACT TITLE: The Nature of Legal Normativity

AUTHOR: Professor Brian Bix (University of Minnesota)

 

 

ABSTRACT:

The paper will elaborate the strengths and weaknesses of an idea I have discussed in previous works: that legal normativity is sui generis, not reducible to or equivalent with either moral normativity or a prediction of the actions of legal officials. If time permits, the analysis will also consider the connection with the topic of legal validity.

 

 

 

 

 

 

ABSTRACT TITLE: Competence and Validity

AUTHOR: Professor David Duarte (University of Lisbon)

 

 

ABSTRACT:

Competence norms are constitutive in the sense that they comprise an action-type (to create deontic consequences) that is made by the norm itself. Since it is the power given by a competence norm that makes it possible to create deontic consequences, it follows that those consequences are impossible to create whenever an agent lacks power. A clear connection between the absence of power and invalidity ascertains: «norms» created by powerless agents do not belong to the normative system because there is no possibility to create them; furthermore, given the impossibility, they do not even exist (inexistence effect). Yet, this connection between the absence of power and validity is often transformed in normative systems by norms that somehow destroy that «inexistence effect» and recover to the system, in multiple and various ways, norms created by powerless agents. These «norms of recover», besides being partially responsible for the ambiguity of the term «validity», do not affect the nature of competence norms: they just work at the level of sanctions. They contain the various consequences applicable to a norm that has been created by a powerless agent (even entailing the inexistence of consequences and the assumption of the full validity of the norm at hand). Yet, by doing so, those «norms of recover» clearly separate competence norms and norms on the exercise of competence, also confirming that propositions expressing broad understandings of competence norms (entailing procedural or even material conditions on power) seem to be mistaken.

 

 

 

 

 

ABSTRACT TITLE: Legal Validity and Legal Legitimacy

AUTHOR: Professor Kenneth Ehrenberg (University of Surrey)

 

 

ABSTRACT:

Legal validity is a social fact. Inclusive and non-positivist theories deny this, in whole or in part, because they hold that law can or must depend on non-social facts—specifically, the law’s moral value or goodness. Many legal systems explicitly reflect this inclination, invoking moral criteria to challenge the validity of legal norms. Exclusive Legal Positivism (ELP) must therefore explain such systems in a way that respects participants’ internal understandings without collapsing into moral evaluation. Where ELP diverges from these internal perspectives, it adopts an error theory about what participants think is happening. This paper proposes that such divergence can be reconciled by clarifying the distinction between validity and legitimacy.

Validity, I argue, is entirely a social fact: legal norms are valid by virtue of socially recognized criteria and official acceptance. Legitimacy, in contrast, is a normative judgment. To call something illegitimate is to claim that, though it bears legal status, it does not deserve that status because its acquisition or content conflicts with certain normative commitments—whether formal legal principles, communal moral values, or elements of a universal morality. The truth of such a judgment is not necessarily socially determined, provided one believes that normative truths have non-social truthmakers.

While many legitimacy claims rely on socially defined procedural norms (for example, asserting illegitimacy because a rule was adopted contrary to procedure), the fact of such procedural contravention is not itself socially dependent—even if the procedure it violates is. In chess terms: the rule that pawns may move two spaces only on their first move is socially defined, but the fact of violating it is not dependent on anyone’s acceptance.

Recognizing this distinction allows exclusive positivists to address inclusive and non-positivist objections by reclassifying the issues they highlight as concerns of legitimacy rather than validity. Participants within a legal system may nonetheless conflate the two, partly because framing claims of illegitimacy as invalidity better motivates officials to act, but also because a purely descriptive theory of legal validity offers little practical guidance. High-level legal decision-makers must ultimately confront questions of legitimacy in rendering judgments, even if those questions lie outside the boundaries of validity as a social fact.

 

 

 

 

ABSTRACT TITLE: Validity under Private International Law

AUTHOR: Professor Michael Steven Green (William and Mary Law School)

 

ABSTRACT:

This paper uses private international law (PIL) to argue for one of two conclusions. The first and more modest conclusion is that positivists must change their conception of a community’s core law practices, upon which law ultimately solely depends. The second and more radical conclusion is that Kelsen’s doctrine of the unity of law is correct, albeit for reasons that Kelsen himself did not acknowledge.

Most Anglophone positivists understand the official practices of norm application within a community, upon which the community’s law ultimately solely depends, as identifying when members of the community can make laws binding upon members of the community. What should be done with the laws of other communities is a matter that comes, if at all, further down in the structure of the community’s legal system.

This is a mistake. A court entertaining a PIL case commonly relies on principles of prescriptive jurisdiction, which concern when members of any community with law practices can make laws binding upon some subject. These principles are understood by the court as just as applicable to the lawmaking members of its own community as they are to the lawmaking members of other communities. Thus, when the court faces two laws—one created by a member of its own community and another created by a member of another community—and both members are empowered under principles of prescriptive jurisdiction, it confronts a conflict of valid laws, a conflict that must be resolved by the court, just as conflicts between two laws made by its own members must be resolved.

Anglophone positivists can accommodate this insight, by reconceiving the scope of a community’s law to include those made by members of other communities. Law still ultimately depends solely upon a particular community’s official law practices. But the fact that courts take the lawmaking members of their own community to be bound by principles of prescriptive jurisdiction, whatever their own community’s law practices might say about the matter, is a reason to adopt the Kelsenian view that there is only one legal system.

 

 

 

 

ABSTRACT TITLE: Bruno Celano’s disquotational theory of validity and quasi-realism AUTHOR: Dr. Carsten Heidemann (Schleswig-Holstein Bar Association)

 

ABSTRACT:

In a paper from 1999, Validity as disquotation, Celano reconstructs the core of Kelsen’s concept of validity, understood as binding force, by maintaining that validity is a ‘disquotational’ predicate. To explain this categorization, he draws a parallel to Tarski’s and Quine’s disquotational conceptions of truth: If you mention a normative sentence, “x ought to φ”, and add the predicate “is valid”, then using the sentence thus fabricated, “‘x ought to φ’ is valid,” is equivalent to just using the sentence “x ought to φ” – just like using the sentence “’snow is white’ is true” is equivalent to using the sentence “snow is white”.

This disquotational conception of validity is, according to Celano, sufficient to explain the definition of validity as a norm’s binding force and thus of validity tout court. However, Celano does not aim at the most adequate reconstruction of Kelsen’s writings; rather, he employs disquotationalism to combine two seemingly incompatible theses: the non-cognitivist thesis that normative sentences are (merely) expressive of attitudes and have no objective correlate, and the thesis that talk about correct practical solutions and treating norms as objective is not reducible or meaningless.

Disquotationalism seems to guarantee compatibility: On the one hand, normative sentences, having a world-to-mind direction of fit, are not assertive sentences (which have a mind-to-world direction of fit). Being expressive of attitudes, normative sentences have no truth value, but they still fit into the disquotation formula. On the other hand, the disquotation formula offers a possibility to distinguish valid normative sentences from invalid ones. Disquotation is possible only with valid, binding, normative sentences.

However, the plausibility of this approach seems to derive from the fact that validity and truth are not just analogous, but necessarily related. According to Kelsen, the normative assertion “x ought to φ” is true exactly if the norm, that x ought to φ, is valid or exists and the norm, that x ought to φ, is valid exactly if x ought to φ. If this double equivalence holds, the only advantage of the disquotational theory is its emaciated conception of truth which is general enough to cover the truth both of sentences having a mind-to-world-fit (assertive sentences), and of sentences which have a world-to-mind-fit (normative sentences). But taking validity to be part of such an emaciated conception of truth seems to be difficult to square with the assumption that normative sentences are merely expressions of attitudes. If asserting the sentence “x ought to φ” is merely expressive of an attitude, it should be logically equivalent to “I believe that x ought to φ” – or, doing without normativity, to “I like it if x φs”, not to “It is true that x ought to φ”. For it is possible that x ought to φ even if I do not believe that x ought to φ or like x’s φing (and vice versa).

And on closer examination, it turns out that the main brunt of Celano’s argument is not borne by the disquotationalist theory of validity, but by a conception which he mentions favourably in passing: quasi-realism. Quasi-realism is a rising trend in philosophy. It started as a meta-ethical position, instigated by Simon Blackburn and Allan Gibbard. It is exactly in line with Celano’s argument, promising that it is possible to eat one’s cake and have it too – that one can be a moral noncognitivist/expressivist and still hold that discourse about what is the ‘objectively’ correct way of acting is meaningful.

In a nutshell, this is achieved by distinguishing two different levels which operate independently from each other – the level of practical discourse, where objectivist and normativist language is used, and the level of meta-theory (meta-ethics), where this talk is grounded on emotions or attitudes. But it seems that there are just two options, both of which do not agree with quasirealism’s aim: Either the quasi-realist meta-ethics is ‘neutral’, as it were, and merely analyses the presuppositions of factually given moral discourse, without taking a stance on them. Or it has a critical function as well, either by justifying these presuppositions, or by proving them to be wrong.

Quasi-realism does not choose the first option; in fact, it explicitly maintains that moral discourse does not treat normative or evaluative speech-acts as merely expressive of attitudes. So it seems to choose the second ‘critical’ option, by holding these implicit objectivist presuppositions of moral discourse to be wrong. But in that case, both having the cake and eating it doesn’t work.

In short: While the disquotationalist theory of validity seems to be a possible way of reconstructing Kelsen’s conception of validity, it (and, with it, quasi-realism) falls short of reconciling expressivism with the possibility of an objective discourse about normativity.

 

 

 

ABSTRACT TITLE: Legal Validity and the Separation Thesis

AUTHOR: Professor Matthias Klatt (University of Graz)

 

ABSTRACT:

 

In the debate between legal positivism and legal non-positivism, the impact of morality upon the validity of legal norms figures as a cornerstone. In this paper, I will delve more deeply into the intricate relationship between legal positivism’s separation thesis and the validity of legal norms. I identify a positivist connection thesis and highlight its fundamental weakness compared to the non-positivist connection thesis. The positivist thesis only establishes a contingent, not necessary, connection between law and morality, as legal validity under positivism depends solely on sources rather than moral content. This contingency undermines the strength of the positivist claim, which also fails to address the crucial issue of whether moral merits affect legal validity. I then distinguish two precise variants of the separation thesis. My argument emphasizes the importance of adopting a validity-embracing concept of law in the debate, as excluding validity preempts the discussion in favor of positivism. Ultimately, I clarify misunderstandings caused by imprecise formulations and shows that the weak positivist connection thesis does not effectively counter the stronger non-positivist claim that moral considerations are necessarily linked to legal validity.

 

 

 

ABSTRACT TITLE: Axio-Factual Validity: Emergence of the Supreme Norm from a Legal Positivist Perspective

AUTHOR: Professor Yahya Berkol Gülgeç (Bursa Uludağ University)

 

ABSTRACT:

Legal systems contain supreme norms, yet legal positivism has long struggled to explain their validity. The two most familiar candidates do not fully account for the robust normativity of such norms. The Rule of Recognition largely sidesteps the problem of normativity, while the basic norm yields only a normative-like conception of a legal system. Axio-factual validity aims to preserve the positivist framework while providing an account of how supreme norms can possess genuine normative force.

Axio-factual validity has two components. The first is an axiological component grounded in the conceptual relationship between norms and reasons. Reasons, being facts, cannot by themselves generate normative requirements; they must be connected to normative sources. Yet the relation also works in the other direction: if a norm is valid, its addressees must have a reason to conform to it. This minimal presence of a reason is evidence of robust normativity. Accordingly, the conditions under which a supreme norm exists must ensure that its addressees possess at least some (defeated or undefeated) reason to conform.

The axiological element is “minimal” in several respects. It imposes no constraints on the types of relevant reasons: prudential reasons are as suitable as moral ones. Because defeated reasons remain reasons, the reason supporting compliance may itself be defeated. The degree of strength is irrelevant; even a very weak reason suffices. Finally, the set of individuals who actually have such reasons may be narrower than the full set of apparent addressees identified by the norm.

If the axiological component ultimately secures the normative character of a norm, the factual component secures its legal character. I argue that the supreme norms of generally efficacious legal systems must themselves be generally efficacious. Thus, the condition for the existence of a legal system can be restated as a condition for the validity of its supreme norm(s). Additional points are required: (i) conformity must be intentional to some degree; (ii) a qualified test of efficacy in addition to general efficacy is needed to distinguish supreme legal norms from the supreme norms of other social normative orders.

The final question is whether this axiological element is compatible with legal positivism. I conclude that compatibility depends on how positivism is defined. If legal positivism is understood through the separability thesis, then axio-factual validity fits comfortably within it. However, it is generally incompatible with forms of positivism grounded in the social-fact thesis or the sources thesis.

 

 

ABSTRACT TITLE: Validity’s Revolutionary Past

AUTHOR: Professor Maris Köpcke Tinturé (University of Oxford)

 

ABSTRACT:

The concept of legal validity has a neglected revolutionary past. It helped to effect critical transformations in Western legal history. They include Roman legal thought’s devising of voluntary transactions, canon law’s pivotal contrast between invalidity and sin (immorality), the dawn of sovereign states under the auspices of the medieval ius commune, and modern constitutionalism’s limits on the democratic will.

 

Validity’s revolutionary past, in turn, teaches us valuable lessons about the uses to which this concept can be put in the future – particularly in our age of multilevel jurisdictions and shifting forms of governance in a digitally scripted world. Even though the current philosophical purchase of the concept of legal validity is largely owed to theories of law focused on nation states, it would be a mistake to narrowly associate legal validity to state-centric legal reasoning. The mistake is belied by nearly two millennia of legal history.

 

 

ABSTRACT TITLE: Validity and Grounds

AUTHOR: Professor Andrei Marmor (Cornell University)

 

ABSTRACT:

Kelsen seems to have been right to insist that validity is a matter of conformity with rules (or norms). Legal philosophers tend to assume that validity is a property of norms. But that is too restrictive. Moves in a game, or more generally, actions done in accordance with rules, can also be valid or invalid. They are valid if they conform to the rules and invalid otherwise. If you ask what makes a move in chess valid – or not valid – the answer can only be that it conforms – or not – with the rules of chess. Same about law, of course: What makes any legal act (including the creation of new law) valid, is also a matter of conformity with other laws, though sometimes in a rather complicated manner. From this Kelsen drew two conclusions: first, that validity must be systemic. We find validity only within some normative system or other. Secondly, Kelsen concluded that in order to account for the validity of any given normative system, one must, eventually, presuppose its validity, the validity of its Basic Norm. In this paper I am going to argue that Kelsen was right about what validity is and how it is, indeed, essentially systemic, but wrong about its grounding. The validity of a system of norms does not need to be presupposed; it is reducible to worldly facts about peoples’ conduct, attitudes and shared intentions. What I aim to show here is that with the tools of metaphysical grounding and collective intentionality we can build the idea of systemic validity from the ground up, without presupposing anything.

 

 

 

 

 

 

 

ABSTRACT TITLE: Is Julius Merkl a Positivist? On Legal Validity, Legal Competence, and the Regulative Function of Legal Science

AUTHOR: Gonzalo Villa-Rosas LL.M. (Center for Research in Philosophy and Law. Externado University of Colombia)

 

 

ABSTRACT:

Positivist theories presuppose that the creation of legal norms in accordance with rules of competence is a necessary and sufficient condition for their legal validity (Alexy, 2025). Indeed, as Kelsen pointed out, according to such legal theories legal norms may have any content whatsoever (Kelsen, 1934), and legal science should not perform any regulative role in their interpretation (Kelsen, 1955). By contrast, non-positivist theories assume that the grounds of legal validity are not exhausted by the rules of competence that served as the necessary condition for the creation of legal norms. Often, as Paulson has observed (Paulson, 2012), it is assumed that a sufficient condition for a theory to be classified as non-positivist is that it proposes moral criteria as grounds of legal invalidity—such as Radbruch’s formula (Radbruch, 1946).

However, are moral criteria as grounds of legal invalidity a necessary condition for considering a legal theory to be non-positivist? If we apply the traditional criterion of exclusion, Merkl’s theory appears to be a positivist one, since it does not include the possibility of denying the validity of legal norms that cannot be reconciled with morality. Nevertheless, unlike Kelsen’s, Merkl’s theory affirms the existence of a moral point of view and maintains that legal science fulfills a regulative function with respect to the exercise of legal competence (Merkl, 1918/1920; 1923; 1927). Kelsen used the Stufenbaulehre developed by Merkl to deepen the distinction between law and morality (Paulson, 2019). Is it nevertheless possible that one of the most important contributions to modern legal thought, in its original formulation, admits of a non-positivist interpretation?

 

 

 

 

 

 

ABSTRACT TITLE: Hans Kelsen’s Concept of Validity as an Ideal Type

AUTHOR: Professor Monika Zalewska (University of Łódź)

 

ABSTRACT:

The concept of legal validity has traditionally been tied to the notion of ontological status within a legal system—“validity” as something that norms possess when they are part of the system. This paper challenges that assumption by proposing adding a dual-layered epistemological model: validity is not merely a static property of norms but also emerges through two interlocking cognitive constructions.

The first layer is the Basic Norm (Grundnorm), a transcendental presupposition that enables the legal system to be treated as normatively valid in the first place. It does not describe any empirical fact or observable norm, but rather serves as a necessary cognitive assumption: the “as if” foundation that allows jurists and legal subjects to interpret legal norms as binding. Without this hypothetical postulate, no norm could be regarded as valid within the system, regardless of its source or content.

The second layer is validity as an ideal type—not a property possessed by individual norms, but a model of how validity functions within the system. This conceptual model organizes legal norms through principles such as hierarchical structuring (Stufenbau), normative coherence, and the conditional toleration of normative deviations (e.g., through the Fehlerkalkül). It is through this ideal-typical framework that validity acquires shape, structure, and resilience as a systemic phenomenon.

Together, the Basic Norm and the ideal type of validity form a two-step epistemological construction: the first makes the legal system thinkable as a normative order; the second makes that order intelligible and operationalizable. This distinction sheds new light on the nature of legal validity—not as a brute fact, but as a layered, methodological fiction that sustains the internal logic of the legal system. This approach suggests that legal validity is not only a fixed ontological status but also a functional construct arising from the interplay between an enabling assumption (the Grundnorm) and a systemic model (the ideal type). By treating validity as an ideal type, I expose its role as a cognitive scaffold that holds together the normative architecture of the legal system, allowing for continuity despite imperfection.

This re-reading of Kelsen not only aligns his theory with contemporary discussions of epistemic modeling and methodological idealization but also opens new avenues for thinking about the reformability, coherence, and internal logic of legal systems.

[*] The list has been organized in alphabetical order.