Es aquello que otorga validez a las normas jurídicas, permite certificar su existencia y obligatoriedad. De este modo, fundamento de validez es el que le otorga la validez, o sea, lo que permite certificar la existencia y obligatoriedad de las normas. Existen seis visiones sobre cuál es el fundamento de validez de las normas jurídicas.

Foundation of validity according to Hans Kelsen

Its conception of the validity of legal norms designates their existence and their claim to be binding, which is presented in a double sense: for normative subjects who must obey those norms and for the jurisdictional bodies that must apply them in their coercive consequences when they have not been obeyed. This vision of obligation refers to legal obligation, related exclusively to a positive legal order, without moral implication. The foundation according to this author depends on each rule having been produced in accordance with what is established by a higher rule of the same legal system, therefore, it is found in another legal rule of higher rank, which determines the creation of the lower rule in three aspects:

Basis of validity according to the criteria of the normative subjects

The foundation of validity of legal norms is found in the fact that they are effectively recognized and observed as such by the corresponding governed subjects, in this way, for a legal norm to be valid, that is, for it to exist and be binding, a very precise fact must occur, which ratifies that the norm is habitually recognized and observed as such within the legal community in question. In this case, a law that is approved by Congress, and that is then promulgated and ordered to be published by the President of the Republic, is not yet, properly speaking, a law, that is, a set of mandatory legal norms, but rather a kind of bill that will be definitively validated as a law only when the corresponding governed subjects recognize and obey it as such.

Basis of validity according to the criteria of the judges

The type of foundation of validity is the one found in the fact that the rules are effectively applied by the jurisdictional bodies due to the exercise of the jurisdictional function that is entrusted to them by constitutional mandate. But for this to happen, it is also necessary for a legal norm to be valid, but this fact no longer occurs through the recognition and obedience of the norm by governed subjects, but rather through the application made by judges and courts of justice through resolutions and rulings.

Basis of validity as a mixed system

When we say that the foundation of validity is mixed, it means that it is strictly necessary that both the governed subjects and the jurisdictional bodies must obey it. We will first address the validity, from the point of view of the prevailing subjects, which has to do with them recognizing them as such. For the legal norm to be effective, it is essential that it be obeyed and applied and its effectiveness refers to its purpose, which in simple terms would be that the conduct is complied with as due, which we can see in two ways, that the conduct is complied with to apply the norm, or that the conduct is not complied with to not apply the norm (in terms of persuasion, which would be the most ideal), the support that the norm has a value, is configured through its origin, that is, that it emanates through a fundamental charter, in ordinary terms, which is of citizen consensus, which has universality in its production of concepts and precepts for the due protection of the inhabitants, since, in this way, the competent bodies can be identified, to be able to create norms (In the case of Chile; The President of the Republic, and the National Congress), and these would be mandatory and non-obedience would result in a sanction. In the same way, the bodies that must apply it would be identified, with the limits and parameters that they would have as an indispensable margin, in this way the governed subjects would have a symmetry of information and it would be easier for them to abide by them from that point of view, but now all this is conditioned by the reasons that lead a person to commit "X" act, which would not necessarily have to do with the intention to disobey just because. This happens since certain norms due to disuse of the community can be repealed, eliminated or replaced with one according to the needs. Now, from the point of view of the jurisdictional bodies, it refers in simple terms to what is responsible for applying the coercive consequences of non-obedience of the norm by the governed subjects, since by constitutional mandate this task is entrusted to them, so that they may issue their rulings and sentences, enforcing the corresponding if the conditional event for the application of the norm occurs. And what is necessary for this fact to be authentic is that there is a specific fact so that, through the established parameters and limiting themselves to those asked of them according to their function, in this way they can dictate what is appropriate.

In this way, it can be observed that the effectiveness and validity of a legal norm depends both on the subjects governed by its recognition and on the jurisdictional bodies regarding its coercive application.

Foundation of validity according to Natural Law.

This is linked to a higher order that is called Natural Law, which would contain norms not given by man, the basis of validity will no longer be a norm as normativism preaches, nor a fact, as legal realists preach, but it will be in norms prior to and superior to positive legal orders.

Morality as a foundation of validity

For a norm to be valid, as in a legal system, it does not need to be adjusted to a natural right or a specific moral order, but this does not mean that it does not have a claim to moral correctness, that is, if there is an order with incorrect norms from a moral point of view, this does not remove its validity. However, if they are extremely unjust, namely, for example, they violate fundamental rights or their guarantees, in this case they would lose their validity. The creation of law has its logical origin in the need for human behavior to be explained by a higher authority, just as it happens in morality, therefore it is based on its formidable moral duty, that is, we are obliged to carry out behaviors that the public law tells us to do. This imputable obligation has every law in every person who lives together. This is why the law has a moral value, because the law must be an object of respect and obedience, and is based on this fundamental norm. The validity of positive duty as a rationally obligatory duty is based on a moral duty, therefore every positive duty must also be a just duty, to the extent that morality does not require rejecting such a norm. If we consider that the public determination is unjust to avoid a greater evil, then it does not lose its moral validity "the lesser evil is morally preferable to the greater evil." If it is understood that security or order must prevail over what each person considers due, what predominates is the rationality of moral duty, because order and security are a moral duty since they constitute what is just, since justice does not constitute a value independent of peace, order or security but rather a ramification between them.

Now there is only one unjust positive duty and therefore it would lose its validity when the moral reason on which it is based deprives it of general validity. This means when there is a moral reason that requires one not to obey the duty established by public order, therefore in this class it ceases to be the duty with general validity, since there is another heteronomous moral duty that collides with public duty and suppresses general validity.

In short, there is a prepositive moral world that sustains and grounds the moral validity of positive duty. The foundation of positive duty is not a confusing factual hypothesis but a manifest and fundamental moral norm. Therefore, positive law constitutes a determined moral world, that is, a determined objective morality[2].

Es aquello que otorga validez a las normas jurídicas, permite certificar su existencia y obligatoriedad. De este modo, fundamento de validez es el que le otorga la validez, o sea, lo que permite certificar la existencia y obligatoriedad de las normas. Existen seis visiones sobre cuál es el fundamento de validez de las normas jurídicas.

Foundation of validity according to Hans Kelsen

Its conception of the validity of legal norms designates their existence and their claim to be binding, which is presented in a double sense: for normative subjects who must obey those norms and for the jurisdictional bodies that must apply them in their coercive consequences when they have not been obeyed. This vision of obligation refers to legal obligation, related exclusively to a positive legal order, without moral implication. The foundation according to this author depends on each rule having been produced in accordance with what is established by a higher rule of the same legal system, therefore, it is found in another legal rule of higher rank, which determines the creation of the lower rule in three aspects:

Basis of validity according to the criteria of the normative subjects

The foundation of validity of legal norms is found in the fact that they are effectively recognized and observed as such by the corresponding governed subjects, in this way, for a legal norm to be valid, that is, for it to exist and be binding, a very precise fact must occur, which ratifies that the norm is habitually recognized and observed as such within the legal community in question. In this case, a law that is approved by Congress, and that is then promulgated and ordered to be published by the President of the Republic, is not yet, properly speaking, a law, that is, a set of mandatory legal norms, but rather a kind of bill that will be definitively validated as a law only when the corresponding governed subjects recognize and obey it as such.

Basis of validity according to the criteria of the judges

The type of foundation of validity is the one found in the fact that the rules are effectively applied by the jurisdictional bodies due to the exercise of the jurisdictional function that is entrusted to them by constitutional mandate. But for this to happen, it is also necessary for a legal norm to be valid, but this fact no longer occurs through the recognition and obedience of the norm by governed subjects, but rather through the application made by judges and courts of justice through resolutions and rulings.

Basis of validity as a mixed system

When we say that the foundation of validity is mixed, it means that it is strictly necessary that both the governed subjects and the jurisdictional bodies must obey it. We will first address the validity, from the point of view of the prevailing subjects, which has to do with them recognizing them as such. For the legal norm to be effective, it is essential that it be obeyed and applied and its effectiveness refers to its purpose, which in simple terms would be that the conduct is complied with as due, which we can see in two ways, that the conduct is complied with to apply the norm, or that the conduct is not complied with to not apply the norm (in terms of persuasion, which would be the most ideal), the support that the norm has a value, is configured through its origin, that is, that it emanates through a fundamental charter, in ordinary terms, which is of citizen consensus, which has universality in its production of concepts and precepts for the due protection of the inhabitants, since, in this way, the competent bodies can be identified, to be able to create norms (In the case of Chile; The President of the Republic, and the National Congress), and these would be mandatory and non-obedience would result in a sanction. In the same way, the bodies that must apply it would be identified, with the limits and parameters that they would have as an indispensable margin, in this way the governed subjects would have a symmetry of information and it would be easier for them to abide by them from that point of view, but now all this is conditioned by the reasons that lead a person to commit "X" act, which would not necessarily have to do with the intention to disobey just because. This happens since certain norms due to disuse of the community can be repealed, eliminated or replaced with one according to the needs. Now, from the point of view of the jurisdictional bodies, it refers in simple terms to what is responsible for applying the coercive consequences of non-obedience of the norm by the governed subjects, since by constitutional mandate this task is entrusted to them, so that they may issue their rulings and sentences, enforcing the corresponding if the conditional event for the application of the norm occurs. And what is necessary for this fact to be authentic is that there is a specific fact so that, through the established parameters and limiting themselves to those asked of them according to their function, in this way they can dictate what is appropriate.

In this way, it can be observed that the effectiveness and validity of a legal norm depends both on the subjects governed by its recognition and on the jurisdictional bodies regarding its coercive application.

Foundation of validity according to Natural Law.

This is linked to a higher order that is called Natural Law, which would contain norms not given by man, the basis of validity will no longer be a norm as normativism preaches, nor a fact, as legal realists preach, but it will be in norms prior to and superior to positive legal orders.

Morality as a foundation of validity

For a norm to be valid, as in a legal system, it does not need to be adjusted to a natural right or a specific moral order, but this does not mean that it does not have a claim to moral correctness, that is, if there is an order with incorrect norms from a moral point of view, this does not remove its validity. However, if they are extremely unjust, namely, for example, they violate fundamental rights or their guarantees, in this case they would lose their validity. The creation of law has its logical origin in the need for human behavior to be explained by a higher authority, just as it happens in morality, therefore it is based on its formidable moral duty, that is, we are obliged to carry out behaviors that the public law tells us to do. This imputable obligation has every law in every person who lives together. This is why the law has a moral value, because the law must be an object of respect and obedience, and is based on this fundamental norm. The validity of positive duty as a rationally obligatory duty is based on a moral duty, therefore every positive duty must also be a just duty, to the extent that morality does not require rejecting such a norm. If we consider that the public determination is unjust to avoid a greater evil, then it does not lose its moral validity "the lesser evil is morally preferable to the greater evil." If it is understood that security or order must prevail over what each person considers due, what predominates is the rationality of moral duty, because order and security are a moral duty since they constitute what is just, since justice does not constitute a value independent of peace, order or security but rather a ramification between them.

Now there is only one unjust positive duty and therefore it would lose its validity when the moral reason on which it is based deprives it of general validity. This means when there is a moral reason that requires one not to obey the duty established by public order, therefore in this class it ceases to be the duty with general validity, since there is another heteronomous moral duty that collides with public duty and suppresses general validity.

In short, there is a prepositive moral world that sustains and grounds the moral validity of positive duty. The foundation of positive duty is not a confusing factual hypothesis but a manifest and fundamental moral norm. Therefore, positive law constitutes a determined moral world, that is, a determined objective morality[2].