A Pragmatic Standard of Legal Validity
Abstract
American jurisprudence currently applies two incompatible validity standards to determine which laws are enforceable. The natural law tradition evaluates validity by an uncertain standard of divine law, and its methodology relies on contradictory views of human reason. Legal positivism, on the other hand, relies on a methodology that commits the analytic fallacy, separates law from its application, and produces an incomplete model of law.
These incompatible standards have created a schism in American jurisprudence that impairs the delivery of justice. This dissertation therefore formulates a new standard for legal validity. This new standard rejects the uncertainties and inconsistencies inherent in natural law theory. It also rejects the narrow linguistic methodology of legal positivism.
In their stead, this dissertation adopts a pragmatic methodology that develops a standard for legal validity based on actual legal experience. This approach focuses on the operations of law and its effects upon ongoing human activities, and it evaluates legal principles by applying the experimental method to the social consequences they produce. Because legal history provides a long record of past experimentation with legal principles, legal history is an essential feature of this method.
This new validity standard contains three principles. The principle of reason requires legal systems to respect every subject as a rational creature with a free will. The principle of reason also requires procedural due process to protect against the punishment of the innocent and the tyranny of the majority. Legal systems that respect their subjects' status as rational creatures with free wills permit their subjects to orient their own behavior. The principle of reason therefore requires substantive due process to ensure that laws provide dependable guideposts to individuals in orienting their behavior.
The principle of consent recognizes that the legitimacy of law derives from the consent of those subject to its power. Common law custom, the doctrine of stare decisis, and legislation sanctioned by the subjects' legitimate representatives all evidence consent.
The principle of autonomy establishes the authority of law. Laws must wield supremacy over political rulers, and political rulers must be subject to the same laws as other citizens. Political rulers may not arbitrarily alter the law to accord to their will.
Legal history demonstrates that, in the absence of a validity standard based on these principles, legal systems will not treat their subjects as ends in themselves. They will inevitably treat their subjects as mere means to other ends. Once laws do this, men have no rest from evil.
Subject
natural law theorylegal positivism
HLA Hart
William Blackstone
John Locke
Jeremy Bentham
John Austin
Galileo
Socrates
Trotsky
Athens
Soviet law
Stuart dynasty
John Dewey
Dewey Commission
Sidney Hook
Congregation of the Holy Office
Galileo Affair
trial of Socrates
Moscow Trials
trial of Galileo
heresy
trial of Trotsky
reason
autonomy
consent
philosophy of law
pragmatism
Kant
Inquisition
ostracism
Anaxagoras
Protagoras
Alcibiades
Arginusae
Pericles
Peloponnesian War
Solon
Ephialtes
Apology
Plato
Herodotus
Xenophon
Plutarch
Roscoe Pound
common law
Oliver Wendell Holmes, Jr.
The Common Law
The Path of the Law
Learned Hand
Christopher Columbus Langdell
Ronald Dworkin
Lon Fuller
Lenin
Stalin
King Rex
Sergei Kirov
Permanent Revolution
Socialism in One Country
Great Terror
Dekulakization
Holomodor
Terror Famine
Italian positivist school
Harold J. Berman
Gustav Radbruch
Ramon Mercader
Trotsky assassination
Marteman Ryutin
Old Bolsheviks
Genrikh Yagoda
Pope Urban VIII
Walter Duranty
Harold Denny
New York Times
Joseph E. Davies
Mission to Moscow
New Republic
John F. Finerty
Lev Sedov
Military Collegium
Vasili Ulrikh
Gaspare Borgia
Cardinal Robert Bellarmine
Pericles
Father Commissary Michelangelo Segizzi
Cardinal Francesco Barberini
Cardinal Maffeo Barberini
Dialogue on the Two Chief World Systems, Ptolemaic and Copernican
Siderius Nuncius
Starry Messenger
Accademia dei Lincei
Letters on Sunspots
Friar Tommaso Caccini
Niccolo Lorini
Commentaries on the Laws of England
Second Treatise on Civil Government
Henry de Bracton
Sir Edward Coke
Sir John Fortescue
Matthew Hale
Ranulf de Glanvil
James I
Charles I
James II
Charles II
ship money
forest fines
distraint of knighthood
impositions
dispensing power
royal prerogative
Duke of Buckingham
Oliver Cromwell
Bishops Wars
William Prynne
Great Migration
Declaration of Indulgence
Settlement Act
Test Act
Protectorate
Clarendon Code
Quaker Act
William and Mary
English Civil War
Puritan Revolution
Glorious Revolution
Thirty Years' War
Earl of Shaftesbuty
William Laud
Historiomatrix
Long Parliament
Rump Parliament
Barebones Parliament
sociological jurisprudence
Red Terror
war communism
New Economic Policy
1926 Criminal Code
Kirov Amendments
judicial discretion
semantic sting
The Concept of Law
Fragments on Government
The Province of Jurisprudence Determined
A Fragment on Government
Positivism and the Separation of Law and Morals
Anarchical Fallacies
primary rules
secondary rules
rule of recognition
legal validity
internal point of view
external point of view
law as prediction
the bad man perspective on law
life of the law
page of history
Basilikon Doron
Trew Law of Free Monarchies
Citation
Tyler, John (2012). A Pragmatic Standard of Legal Validity. Doctoral dissertation, Texas A&M University. Available electronically from https : / /hdl .handle .net /1969 .1 /ETD -TAMU -2012 -05 -10885.