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Article
Punishment, Invalidation, and Nonvalidation: What H.L.A. Hart Did Not Explain
Legal Theory (2008)
  • Richard Stith
Abstract
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.
Keywords
  • H.L.A. Hart,
  • legal invalidation,
  • nullification,
  • power-holders,
  • diversity,
  • pluralism
Disciplines
Publication Date
January 1, 2008
Publisher Statement

Copyright © Cambridge University Press 2008

Online edition of Legal Theory available at: http://journals.cambridge.org/action/displayJournal?jid=LEG

Citation Information
Richard Stith, Punishment, Invalidation, and Nonvalidation: What H.L.A. Hart Did Not Explain, 14 Legal Theory 219 (2008).