Legality Policies and Theories of Legality: From Bananas to Radbruch’s Formula

Abstract

In this paper I shall take an inferential approach to legality (legal validity), and consider how the legality of a norm can be inferred, and what can be inferred from it. In particular, I shall analyse legality policies, namely, conditionals conferring the quality of legality upon norms having certain properties, and I shall examine to what extent such conditionals need to be positivistic, so that legality is only dependant on social facts. Finally, I shall consider how legality is transmitted from norm to norm and whether the ultimate legality policies (the rules of recognition) of a legal system need to be constituted by social facts.