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Realist Basis Of Validity

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Chapter Summary

The empirical, factual or phenomenological basis of validity is that which is located in the world of reality, of the "Sein" or "is," that is, of being, of facts. This basis grounds the validity of a norm in effective obedience on the part of the addressees. No longer is the author dealing with justification or identification of law, but rather with its application. This chapter presents the principal realist theories. Martin Diego Farrell attempts a new realist theory, overcoming the insufficiencies of hitherto existing legal realism, like those of the basic norm. In the study of legal validity, the opposition between those who base validity on force (coercion theory) and those who ground it on acceptance (recognition theory) is classic, likewise mixed theories of those that consider the two postures reconcilable instead of antagonistic. In turn, theories of recognition have two historical manifestations, individual recognition and general recognition.

Keywords: case law; civil disobedience; legal validity; principal realist theories; realist theories; Scandinavian realism; statute law

10.1163/ej.9789004179325.i-376.50
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