Validity and invalidation

Thesis

Legal systems typically allocate powers to persons and establish conditions for their successful exercise. Legal thought tends to operate on the idea that if a power is exercised by meeting the conditions—if it is correctly exercised—the power-holder succeeds in creating a juridical act. Conversely, if the power is incorrectly exercised, the power-holder fails in his or her attempt. A concomitant notion of legal thought holds that in the first case the act is referred to as valid; in the second as invalid. The real and normal operation of legal systems shows, however, that very many exercises of powers are defective, and yet they nonetheless produce binding juridical acts, which in legal practice are commonly referred to as legally valid. Frequently, moreover, many such acts are not invalidated by a court. Legal systems employ a diverse set of alternative remedies, including delayed declarations of the invalidity of administrative decisions and statutes, non-binding declarations of the invalidity of statutes, the rectification of the terms of a contract, among many others. This state of affairs poses a theoretical problem. How to explain and justify the existence and binding force of such defective acts? And how to explain and justify the ample variety of remedies? The existing answers are not satisfactory. This DPhil thesis begins by explaining the current theoretical landscape and criticizing the current views; it then proposes an alternative answer, whose main features are the following. Juridical acts are institutional facts: they exist if persons recognize them to exist. There are strong moral reasons for a community to confer recognition on some defectively created acts. This justifies ascribing them the provisional or definitive status of legally valid. Remedies are a means to correct the injustice cause by an incorrect exercise of powers. There is no one means to correct that injustice. The remedy must be appropriate to the moral gravity and particular facts of the case.

Authors: Contreras Santander, F

• DOI: 10.5287/ora-g25yyjb1e
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: unlawfulness; normativity; legal validity; invalidation; legal powers
• Subjects: Law