Critical Remarks on Alf Ross’s Probabilistic Concept of Validity
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RIS BIB ENDNOTECritical Remarks on Alf Ross’s Probabilistic Concept of Validity
Publication date: 2016
Principia, 2015, Volume 61-62, pp. 225-237
https://doi.org/10.4467/20843887PI.15.013.5542Authors
Critical Remarks on Alf Ross’s Probabilistic Concept of Validity
The concept of legal validity is regarded within the dominant legal-positivistic account of law as a non-gradable concept: a legal rule is either valid or non-valid. However, this account of validity is criticised by some scholars for being too strict and rigid. An attractive alternative would appear to be offered by Alf Ross’s account of validity as a probabilistic concept. Ross assumed that the stronger the predictions of judicial behaviour that a given rule generates, the higher the probability that can be assigned to its validity. However, this account of legal validity is by no means uncontroversial. In this paper, four objections against it are formulated: apparent gradability, problematic ascertainability, the normative insignificance of probabilistic information and the neglecting of the normativity of legal rules. These objections are treated in this paper as strong grounds for rejecting Ross’s claim that predictions of judicial behaviour formulated on the basis of rules are conceptually linked to their validity (i.e. they define their meaning); it is argued in the paper that they are merely a way of testing empirical hypotheses concerning the application (effectiveness) of legal rules.
Grabowski Andrzej. 2014. Juristic Concept of the Validity of Statutory Law: A Critique of Contemporary Legal Nonpositivism. Heidelberg, New York, Dordrecht, London: Springer.
Hart Herbert Lionel Adolphus. 1959. „Scandinavian Realism”. Cambridge Law Journal: 233-240.
Ross Alf. 1946. Towards a Realistic Jurisprudence, a Criticism of Dualism in Law. Copenhagen: E. Munksgaard.
Ross Alf. 1959. On Law and Justice. Berkeley: University of California Press.
Ross Alf. 1962. „The Concept of Law by H.L.A. Hart”. Yale Law Journal 716: 1185-1190.
Information: Principia, 2015, Volume 61-62, pp. 225-237
Article type: Original scientific article
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Critical Remarks on Alf Ross’s Probabilistic Concept of Validity
Published at: 2016
Article status: Open
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