A Short History of Legal Validity and Invalidity

This book traces the uncharted history of validity and invalidity, two central categories of legal thought ubiquitous in contemporary private and public law. It shows how they emerged in response to social needs that remain pressing today.
Author(s):
Maris Köpcke
book | published | 1st edition
August 2019 | xiv + 160 pp.

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€49.-

ISBN 9781780688152


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ISBN 9781780689203

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The twin ideas of legal validity and invalidity are ubiquitous in contemporary private and public law. But their roots lie buried deep in European legal culture. This book for the first time traces and reveals these roots. In the course of a 2000-year journey through landmark texts of the Western tradition, from Roman law to modern codification and constitutionalism, the book shows that, contrary to what is often assumed, validity and invalidity originated in the domain of private transactions and only gradually came to be deployed in the domain of official power and law-making. This went hand in hand with legal thought’s acknowledgement that law-making itself can be (in)valid, because legally limited, most recently by a body of constitutionally enshrined human rights. Understanding why, not only when, the technique of validity appeared, teaches valuable lessons about the kinds of social and political transformation that this technique can help realise – particularly in our age of emerging legal orders, shifting forms of governance, and fresh challenges to the regulation of exchanges in a digitally scripted world.

This accessibly written work will appeal to anyone concerned with validity or invalidity in legal scholarship and practice, whether in public or private law.

Dr Maris Köpcke is a Research Fellow at the Faculty of Law, University of Oxford, and a Lecturer at the Faculty of Law, University of Barcelona. She holds a doctorate from Oxford, which won the European Award for Legal Theory 2011. She is the author of Legal Validity: The Fabric of Justice (2019).

The book features over a dozen original drawings by the author’s mother, Trini Tinturé.



Table of Contents

Table of contents and preliminary pages (p. 0)

Maris Köpcke

Chapter 1. Introduction (p. 1)

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Chapter 2. Our Technique of Legal Validity (p. 11)

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Chapter 3. Roman Private Law: Rowing Against the Tide (p. 23)

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Chapter 4. Roman Law-Making: Power Usurped (p. 39)

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Chapter 5. Gratian’s Decretum (Mid-12th): A Novel Use (p. 51)

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Chapter 6. The Decretals (Mid-13th): The Terminology Settles (p. 65)

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Chapter 7. Bartolus (Mid-14th): From a World State to a World of States (p. 73)

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Chapter 8. Suarez (Early 17th): Inherent Legal Power (p. 99)

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Chapter 9. Codes and Constitutions (19th Onwards): The Table s are Turned (p. 115)

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Chapter 10. Conclusion (p. 137)

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Bibliography (p. 147)

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Open access content

Parts of this book have been made open access. We make chapters open access because they are particularly topical, or provide a useful introduction to the subject. They may be available for a limited time or indefinitely. Some books are entirely and permanently open access.


Table of contents and preliminary pages (p. 0)
Maris Köpcke
Bibliography (p. 147)
Maris Köpcke