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Texas A&M University

1. Tyler, John. A Pragmatic Standard of Legal Validity.

Degree: 2012, Texas A&M University

American jurisprudence currently applies two incompatible validity standards to determine which laws are enforceable. The natural law tradition evaluates validity by an uncertain standard of divine law, and its methodology relies on contradictory views of human reason. Legal positivism, on the other hand, relies on a methodology that commits the analytic fallacy, separates law from its application, and produces an incomplete model of law. These incompatible standards have created a schism in American jurisprudence that impairs the delivery of justice. This dissertation therefore formulates a new standard for legal validity. This new standard rejects the uncertainties and inconsistencies inherent in natural law theory. It also rejects the narrow linguistic methodology of legal positivism. In their stead, this dissertation adopts a pragmatic methodology that develops a standard for legal validity based on actual legal experience. This approach focuses on the operations of law and its effects upon ongoing human activities, and it evaluates legal principles by applying the experimental method to the social consequences they produce. Because legal history provides a long record of past experimentation with legal principles, legal history is an essential feature of this method. This new validity standard contains three principles. The principle of reason requires legal systems to respect every subject as a rational creature with a free will. The principle of reason also requires procedural due process to protect against the punishment of the innocent and the tyranny of the majority. Legal systems that respect their subjects' status as rational creatures with free wills permit their subjects to orient their own behavior. The principle of reason therefore requires substantive due process to ensure that laws provide dependable guideposts to individuals in orienting their behavior. The principle of consent recognizes that the legitimacy of law derives from the consent of those subject to its power. Common law custom, the doctrine of stare decisis, and legislation sanctioned by the subjects' legitimate representatives all evidence consent. The principle of autonomy establishes the authority of law. Laws must wield supremacy over political rulers, and political rulers must be subject to the same laws as other citizens. Political rulers may not arbitrarily alter the law to accord to their will. Legal history demonstrates that, in the absence of a validity standard based on these principles, legal systems will not treat their subjects as ends in themselves. They will inevitably treat their subjects as mere means to other ends. Once laws do this, men have no rest from evil. Advisors/Committee Members: McDermott, John J. (advisor), Pappas, Gregory (committee member), Austin, Scott W. (committee member), Welch, Ben D. (committee member).

Subjects/Keywords: natural law theory; legal positivism; HLA Hart; William Blackstone; John Locke; Jeremy Bentham; John Austin; Galileo; Socrates; Trotsky; Athens; Soviet law; Stuart dynasty; John Dewey; Dewey Commission; Sidney Hook; Congregation of the Holy Office; Galileo Affair; trial of Socrates; Moscow Trials; trial of Galileo; heresy; trial of Trotsky; reason; autonomy; consent; philosophy of law; pragmatism; Kant; Inquisition; ostracism; Anaxagoras; Protagoras; Alcibiades; Arginusae; Pericles; Peloponnesian War; Solon; Ephialtes; Apology; Plato; Herodotus; Xenophon; Plutarch; Roscoe Pound; common law; Oliver Wendell Holmes, Jr.; The Common Law; The Path of the Law; Learned Hand; Christopher Columbus Langdell; Ronald Dworkin; Lon Fuller; Lenin; Stalin; King Rex; Sergei Kirov; Permanent Revolution; Socialism in One Country; Great Terror; Dekulakization; Holomodor; Terror Famine; Italian positivist school; Harold J. Berman; Gustav Radbruch; Ramon Mercader; Trotsky assassination; Marteman Ryutin; Old Bolsheviks; Genrikh Yagoda; Pope Urban VIII; Walter Duranty; Harold Denny; New York Times; Joseph E. Davies; Mission to Moscow; New Republic; John F. Finerty; Lev Sedov; Military Collegium; Vasili Ulrikh; Gaspare Borgia; Cardinal Robert Bellarmine; Pericles; Father Commissary Michelangelo Segizzi; Cardinal Francesco Barberini; Cardinal Maffeo Barberini; Dialogue on the Two Chief World Systems, Ptolemaic and Copernican; Siderius Nuncius; Starry Messenger; Accademia dei Lincei; Letters on Sunspots; Friar Tommaso Caccini; Niccolo Lorini; Commentaries on the Laws of England; Second Treatise on Civil Government; Henry de Bracton; Sir Edward Coke; Sir John Fortescue; Matthew Hale; Ranulf de Glanvil; James I; Charles I; James II; Charles II; ship money; forest fines; distraint of knighthood; impositions; dispensing power; royal prerogative; Duke of Buckingham; Oliver Cromwell; Bishops Wars; William Prynne; Great Migration; Declaration of Indulgence; Settlement Act; Test Act; Protectorate; Clarendon Code; Quaker Act; William and Mary; English Civil War; Puritan Revolution; Glorious Revolution; Thirty Years' War; Earl of Shaftesbuty; William Laud; Historiomatrix; Long Parliament; Rump Parliament; Barebones Parliament; sociological jurisprudence; Red Terror; war communism; New Economic Policy; 1926 Criminal Code; Kirov Amendments; judicial discretion; semantic sting; The Concept of Law; Fragments on Government; The Province of Jurisprudence Determined; A Fragment on Government; Positivism and the Separation of Law and Morals; Anarchical Fallacies; primary rules; secondary rules; rule of recognition; legal validity; internal point of view; external point of view; law as prediction; the bad man perspective on law; life of the law; page of history; Basilikon Doron; Trew Law of Free Monarchies

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APA · Chicago · MLA · Vancouver · CSE | Export to Zotero / EndNote / Reference Manager

APA (6th Edition):

Tyler, J. (2012). A Pragmatic Standard of Legal Validity. (Thesis). Texas A&M University. Retrieved from http://hdl.handle.net/1969.1/ETD-TAMU-2012-05-10885

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

Chicago Manual of Style (16th Edition):

Tyler, John. “A Pragmatic Standard of Legal Validity.” 2012. Thesis, Texas A&M University. Accessed December 12, 2019. http://hdl.handle.net/1969.1/ETD-TAMU-2012-05-10885.

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

MLA Handbook (7th Edition):

Tyler, John. “A Pragmatic Standard of Legal Validity.” 2012. Web. 12 Dec 2019.

Vancouver:

Tyler J. A Pragmatic Standard of Legal Validity. [Internet] [Thesis]. Texas A&M University; 2012. [cited 2019 Dec 12]. Available from: http://hdl.handle.net/1969.1/ETD-TAMU-2012-05-10885.

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

Council of Science Editors:

Tyler J. A Pragmatic Standard of Legal Validity. [Thesis]. Texas A&M University; 2012. Available from: http://hdl.handle.net/1969.1/ETD-TAMU-2012-05-10885

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

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