In that case, a rule exists and is valid if it was made by Parliament. Another
example would be that a rule was created by means of a contract. A rule about
contracts would then hold that rules created by means of contracts are valid.
There is of course a difference between rules created by Parliament and contractual rules.
The former bind everyone in a country, while the latter only bind the contracting parties.Effectiveness Not Required Effectiveness isnota condition for the validity of
institutional rules. If, for example, Parliament has made a rule that hardly anybody
obeys, this rule may still be a valid rule.
The rule that pedestrians are forbidden to cross the street if the crossing signal is red is an
example of such a valid rule, which is violated on a very large scale in the Netherlands.
Most of the time, however, a valid institutional rule will be an effective rule.
If an institutional rule is not used anymore (desuetudoin Latin), this may be seen as a
reason to assume that the rule has lost its validity again. It this has happened, effectiveness
had some influence on the validity of an institutional rule.Most Rules Institutional Nowadays, most legal rules exist as institutional rules.
They are valid legal rulesbecausethey satisfy the conditions of some other rule that
specifies which rules count as valid legal rules. Most often, this other rule gives the
power to make new rules to some person or institution. If this person or institution
then exercises this rule-making power, the rule counts as a valid legal rule.
A typical example would be the rule that confers on Parliament the power to make statutory
rules. If Parliament exercises this power and makes a statute, the rules in this statute count
as valid legal rulesbecause of the power conferring rule. These statutory rules therefore
exist as institutional rules. They are valid legal rules, independent of whether they are
effective.2.2.3 Sources of Validity, a Schema
A rule makes something into a source of legal validity if it assigns legal validity to
what stems from this source. In common law countries, judges are under a duty to
follow the precedents created by their own court or higher courts. This rule ofstare
decisismakes precedents in common law jurisdictions into a source of validity for
the law. In the civil law tradition, the most important validity source is legislation.
Rules that are made in the form of legislation are, for that reason, valid legal rules.
Characteristic of a source of legal validity is that rules that stem from such a source
are,for that reason, valid legal rules (see Sect.14.2.2). Figure2.1illustrates the
phenomenon of validity sources.
The “highest” rule, which is itself not based on any other rule, is the constitution.
The constitution itself contains a number of rules that guide behavior (which tell
people what they should do), such as human rights rules, and it also contains rules
that empower institutions, in particular the legislator, to make additional rules.
26 J. Hage