The Validity of Validity: Reply to Moreso and Ángeles Ródenas

Moreso and Ródenas’s essay provides some striking images of legal validity which raise some interesting questions. The main part of this response deals with some implications of their theory. I argue that legal validity is best viewed as a practice concerned with what might be called ‘unifying rules’: a complete expression of a rule which is formed from various antecedent (or, in Continental systems, posterior) fragments. In the common law system, the legal concept of ‘ownership’ famously consists of a number of rights which are in turn composed from numerous statutory rules and court rulings. But the same is true of virtually any rule: eg the neighbour principle. This essay considers the extent to which Moreso and Ródenas’s theory provides the basis for a general theory of validity of this kind. The shorter second part of the essay discusses Maris Köpcke’s recent and important theory of legal validity.