Validity

the reputation of rules

Pauline Westerman

pp. 165-182

in: Pauline Westerman, Jaap Hage, Stephan Kirste, Anne R. Mackor (eds), Legal validity and soft law, Berlin, Springer, 2018

Abstract

If we want to know whether a particular legal construct (rule, contract) is valid, we are interested in ascertaining its relevance. We want to know whether a certain rule can be trusted to have the effect it claims to have. This question in itself rests on the background assumption and collective agreement that in general such legal constructs do matter and make a difference. This article investigates the conditions under which such collective agreement can wax or wane. To that end, the validity of rules is compared with the reputation of persons. Personal reputation is not only dependent on one's pedigree and upbringing but is also informed by present conduct and company, as well as by anticipated future performance. The same applies to the legal order, which is equally informed by considerations concerning past, present, and future. It is explained how these considerations move in circles of interaction and can be self-reinforcing, as well as self-defeating.