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

Abstract

I shall argue that issue of legal validity or legality (I will use these two terms as synonymous) can be addressed by taking an inferential stand, namely, by considering under what preconditions (antecedents) the legality of a norm can be inferred, and what postconditions (consequences) can be inferred from a norm’s legality. Consequently, I shall consider what form theory of legality can take, where by a theory of legality I mean a set of conditionals (legality policies) which, together with true facts, circumscribes the set of legal norms. In particular, I shall consider to what extent such conditionals need to be positivistic