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American Journal of Jurisprudence



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When, and in what sense, are laws ever "valid"? I shall argue that the validity of a law always depends on the law's moral justification. To see why, one must first disentangle three senses of the word "valid." I will distinguish "actual validity" from "legal validity," and use "valid" (without an adjective) only of the former-those laws one actually ought to obey. "Legally valid" laws are laws a particular legal system claims we ought to obey, and "morally valid" laws are laws one could morally justify making legally valid.

The distinction between moral, legal and actual validity explains two well-known paradoxes of obligation under law. I will call these the "validity paradox" and the "validation paradox" of law. The validity paradox recognizes that we sometimes have a duty to obey the laws of unjustifiable regimes, when such laws are (actually) valid anyway. The validation paradox binds us sometimes to obey the legally valid ("validated") laws of justified regimes, even when the laws themselves are bad. Both paradoxes illustrate how law's validity depends upon its moral justification, and illuminate the essential role law plays in determining the moral obligations of those subject to it.

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