Legal validity and the infinite regress

Law and Philosophy 15 (4):339 - 368 (1996)
Abstract
The following four theses all have some intuitive appeal: (I) There are valid norms. (II) A norm is valid only if justified by a valid norm. (III) Justification, on the class of norms, has an irreflexive proper ancestral. (IV) There is no infinite sequence of valid norms each of which is justified by its successor. However, at least one must be false, for (I)--(III) together entail the denial of (IV). There is thus a conflict between intuition and logical possibility. This paper, after distinguishing various conceptions of a norm, of validity and of justification, argues for the following position. (I) is true. (II) is false for legislative justification and true for epistemic justification. (III) is true for legislative and false for epistemic justification. (IV) is true for legislative justification; for epistemic justification (IV) is true or false depending on the conception taken of a norm. Our intuition in favour of (II) must therefore be abandoned where justification is conceived legislatively. Our intuition in favour of (III) must be abandoned, and our intuition in favour of (IV) qualified, where justification is conceived epistemically
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