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Published online by Cambridge University Press: 01 September 2008
Elaborating first upon H. L. A. Hart's distinction between imposing duties and imposing disabilities, this article explores the two senses mentioned (but not fully explained) by Hart in which power-holders may be legally disabled. Legal invalidation (nullification) of norms that have been generated by vulnerable power-holders is seen to reduce diversity or pluralism in every normative sphere, from the supranational to the intrafamilial. By contrast, mere legal nonvalidation (noncognizance) of such norms tends to preserve the autonomy of the power-holders that created the norms, thus enhancing legal pluralism. Punishment for creating forbidden norms amounts in principle to an in-between sort of control, less restrictive than completely invalidating them but more restrictive than just not validating them, that is, just ignoring them. Illustrative examples include the European Court of Justice's early use of invalidation to convert an international treaty into a supranational constitution, and the subtle effects of legal nonvalidation of same-sex marriage.
1. Wesley Hohfeld, Fundamental Legal Conceptions (1923).
2. H. L. A. Hart, The Concept of Law 26–41, 66–71 (2d ed. 1994). Hart refers to Hohfeld in a note to page 66 found at page 289.
3. Id.
4. Id. at 26.
5. Id.
6. Id. at 27.
7. Id.
8. Id. at 31.
9. Id at 32.
10. Id. at 34.
11. Id. In this description of Hart's views of powers and their limits, I do not distinguish between private powers (such as the legal power to make a contract or a will) and public powers (such as the legal power to legislate), because Hart himself conflates the two. This conflation may have been part of what led Hart to confuse invalidity (which in domestic law tends best to describe the limits on public powers) with nonvalidity (which in domestic law tends best to describe the limits on private powers), as is shown later in this essay.
12. Id. at 69.
13. Coercion still lurks in the background, however, insofar as S may now be liable to be punished by C if he should undertake to punish P for refusing to comply with S's invalid order.
14. We might still say, as a matter of ordinary language, that the state legislators have a duty to abide by federal law as well as a disability to deviate from it, but in any event such disability-enforced duties are not ordinarily backed by threats of punishment. According to Madison's notes on the American Constitutional Convention, the method of enforcing federal law on the states by means of invalidation of deviance rather than by means of punishment for deviance was chosen at least partly because the latter approach could have required federal military intervention. Notes of Debates in the Federal Convention of 1787 Reported by James Madison 45, 88–89 (Norton, 1966).
15. Hart states, for example, that a “judge . . . may be indifferent to the validity of his order.” Hart, supra note 2, at 34.
16. William Ernest Henley, Invictus, in Modern British Poetry (Louis Untermeyer ed., 1920), available at http://www.bartleby.com/103/7.html.
17. The articles referred to here were first numbered 169–171 but are now Articles 226–228 of the Treaty Establishing the European Union. The specified punishment for violations, now found in Article 228, was not present in the mid-1960s, however.
18. Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1; Case 6/64, Costa v. ENEL, 1964 E.C.R. 585.
19. Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA, 1978 E.C.R. 629.
20. For reflections on the Court's bootstrapping, see R. Stith & J.H.H. Weiler, Can Treaty Law Be Supreme, Directly Effective and Autonomous—All at the Same Time? (An Epistolary Exchange), 34 N.Y.U. J. Int'l L. & Pol. 729 (2002).
21. Of course, where invalidation and punishment are combined, individuals are maximally limited. American law does this to prevent bigamy by both declaring second marriages impossible and punishing those who attempt to do what is legally impossible.
22. See Hart, supra note 2, at 26, 27, 31, 32, 34, 69. The distinction in this essay between nonvalidation and invalidation overlaps to some degree with that between “void” and “voidable” or “null” and “nullifiable” acts and like distinctions. Void acts are simply ignored by the law (e.g., a “marriage” of two six-year-olds or “legislation” by a law faculty establishing a national religion) because they are wholly null. Voidable acts are ones that originally have some legal existence that the law may undertake to nullify (e.g., a marriage caused by fraud in some essential respect or legislation by Congress establishing a religion). The former may be, surprisingly, more favorable to pluralism than the latter, as we see below.
23. Id. at 207–212.
24. The reason for this apathy is obviously that minimally adequate reciprocal consideration and a second witness amount to virtually costless formalities, so that few if any care about having to fit within their strictures.
25. Tamar Lewin, Out of Grief Grows an Advocacy for Legal Certificate of Stillborn Birth, N.Y. Times, May 22, 2007, at A16 (quoting the woman “who started the movement”).
26. John Finnis agrees with H. L. A. Hart that a morally unjust law remains a valid law for many purposes (for example, that of conceptual clarity), albeit nonvalid as a moral norm. Yet inasmuch as the focal sense of law, for Finnis, contains a moral obligation of obedience, an unjust law cannot be a law in this full focal sense. John Finnis, Natural Law and Natural Rights 351–368 (1980). If (or when or where) a law must be moral in order to count as a law, morality can only validate or invalidate it; an unjust law that is merely morally nonvalid (but not legally invalid) can by definition no longer exist. Law surrenders its systemic independence insofar as it needs moral validation.
27. Richard Stith, Keeping Friendship Unregulated, 18 Notre Dame J.L. Ethics & Pub. Pol'y 263, 264 (2004), n. 4.
28. See Goodridge v. Dept. of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003).
29. See In re Marriage Cases, 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384] (2008).
