Standards of legal validity are historically cyclical, and the cycle has continued in the United States throughout the 21st century. U.S. law originally adopted Blackstone`s two standards of validity based on moral principles and legal customs. Centuries of challengers have eroded these norms. Bentham, Austin, Holmes, and Hart undermined Blackstone`s moral standard by advocating the separation of law and morality. Pound undermined Blackstone`s usual norm by advocating abandonment of the common law. Legal educators have removed Blackstone from their curriculum. The second reinforcing factor is the erosion of the moral dimension of law. Oliver Wendell Holmes, Jr. is a figurehead in this process.
Holmes campaigned for a law without values and described himself as a skeptic. Holmes defines truth as the majority decision of each nation that is more powerful than all the others. Holmes equates a lawyer who seeks criteria of validity in natural law with the poor devil who must get drunk to satisfy his demand for superlative. (Holmes 1918, p. 40). The first principle is the principle of reason, which deals with the validity of the content of the law. The principle of reason recognizes that each subject is a rational creature with free will. To be stable, the legal system must treat its subjects as an end in itself and not as a mere means to another end. The legal system must also enable rational individuals to direct their own behaviour in order to achieve a society based on ordered freedom. Due process protects against the punishment of the innocent and the tyranny of the majority. Due process allows laws to provide individuals with reliable guides to guide their behaviour. The fourth factor that strengthened Hart`s influence was the judges` natural desire to “make” new laws.
Blackstone`s “declaratory theory” prohibits judicial law, but Hart`s “penal doctrine” regards it as an ordinary and necessary judicial function. A striking example of Hart`s influence is Griswold v. Connecticut, 281 U.S. 479 (1965). Griswold uses a penumbral analysis to imply a constitutional right to privacy, while admitting that such a right does not appear in the language of the Constitution. The Supreme Court ruled Roe v. Wade, 410 U.S. 113 (1973) on the basis of Griswold`s implied right to privacy. The growing willingness of judges to sit in U.S.
courts in the 20th and 21st centuries. Hart`s most important and controversial legacy in American jurisprudence is to legislate from the bench. The validity standard for Custom includes seven requirements. First, custom must have been used “so long as the memory of man is not opposed.” Evidence of a time when custom did not exist invalidates custom. Secondly, the custom must be observed continuously, the interruption invalidates the custom. Thirdly, custom must be observed peacefully. Customs depend on consent, and controversial customs authorities have no consent. Fourth, customs must be “reasonable” and must not create unnecessary difficulties.
Fifth, custom must be safe. A custom inherited by the most worthy son is void because there is no specific standard of dignity. Sixth, compliance must be mandatory. Optional tariffs have no coercive force. Finally, customs must be consistent. Customs authorities lack consistency between them. (Blackstone 1838, pp. 53-55). Binding; have legal force or force; Legally sufficient. For example, a valid contract is a contract that has been performed in compliance with all necessary legal formalities and is binding and enforceable by the persons who performed it.
The second principle is the principle of consent, which deals with the validity of the creation of rights. This principle provides that the legitimacy of the law derives from the consent of the persons subject to its authority. Common law custom, the doctrine of stare decisis and legislation sanctioned by the legitimate representatives of the subjects are all evidence of consent. The rules of natural law are the criterion of legal validity. This norm waives all rights or obligations that violate the regulations of natural law. The Institute provides illustrative examples: contracts concluded for immoral purposes such as the execution of homicide or sacrilege are not enforceable. (Justinian, Institute, 3.19.24). Immorality invalidates illegitimate gains. Whoever profits from illegal domination over someone else`s property must confiscate those profits. (Justinian, Digest, 5.3.52). Bentham`s theory of law has two peculiarities.
The first is Bentham`s exclusion of the historical dimension of law. Bentham`s “imperative” theory of law defines law as (1) the collection of signs of a sovereign`s will, (2) the control of the behavior of those under his power, (3) accompanied by an “expectation” of those people that (4) motivates obedience. The will of the sovereign establishes its own standard of validity. Custom is excluded and the ruler exercises autonomy over the law. (Bentham, 1970, p. 1). Hart`s 1957 lecture “Positivism and the Separation of Law and Morality” focuses on three doctrines affirmed by Bentham and Austin. The first, which Hart argues, emphasizes “the importance of the distinctive vocabulary of law.” The second doctrine Hart maintains is the separation of law and morality. Hart considers the law “as is” to be distinct from the law “as it should be.” This distinction rejects moral norms as a criterion of legal validity. (Hart, 1958, pp. 594-601).
The sophist Protagoras of Abdera (born c. 481 B.C.) rejected the moral dimension of the law. As an agnostic, Protagoras rejected the divine lawgiver. As a moral relativist, Protagoras rejected the existence of universal moral principles. Unlike later Sophists, however, Protagoras accepted the validity of custom in the historical dimension of law. LawInfo.com National Directory of Law Societies and Legal Resources for Consumers The political dimension of law is strongly defined in Blackstone`s jurisprudence. Society is founded for the protection of the individual. In addition to the standards of validity discussed above, Blackstone`s historical dimension dictates an almost absolute standard of legal autonomy. The law exercises its supremacy over the will of political leaders, whether kings or judges. (Blackstone 1838, p. 32). Aristotle ensured legal justice by restricting the will of the political leader by autonomous laws.
Politics teaches that unbridled power breeds tyranny, even in democracies. Aristotle wonders whether societies function better under “human domination” or the “rule of law.” He concludes that laws, if they are good, should be a top priority. Political leaders should simply supplement the law by acting as guardians and ministers. They should only regulate matters on which laws cannot speak precisely, because it is difficult to have a general principle that covers all the details. (Aristotle, Politics, 1282b). The Corpus Juris Civilis (Corpus of Civil Law) codified Roman law according to the decree of Justinian I. The four works of Corpus were completed in 535 AD and became the sole legal authorities of the empire. The Institutes was a text from the law school. The codex contained statutes from 76 AD. The compendium included comments by eminent jurists, and new laws were amended as new laws became necessary. Hart also excludes the moral dimension of law from its standard of legal validity.