My research appraises legal techniques, modes of reasoning and institutional schemes in light of their capacity to help political communities justly advance human well-being. A major focus of my work is the riddling technique of legal validity, which lies at the heart of familiar forms of legal reasoning and institutional schemes. The technique of legal validity is a special method for changing legal duties, rights and powers across private and public law. Roughly, it involves changing duties, rights and powers by saying so.

In my monograph Legal Validity: The Fabric of Justice (Oxford, Hart Publishing, 2019) I explain the nature and probe the point of this technique. This enquiry has been all but neglected in decades of theoretical emphasis on the validity of abstract rules or norms. Considering valid objects such as wills, mortgage contracts, software licences, statutes, passports or judgments, the book reveals that the ordinary idea of ‘legal validity’ is associated to a fascinating legal technique spanning diverse areas of legal regulation. And it brings out the value, and limits, of this technique as a tool to foster the reasonable self-direction of diverse individuals and groups through a sound allocation of decision-making power.

A second, shorter monograph traces the hitherto uncharted history of legal validity in Western legal thought: A Short History of Legal Validity and Invalidity: Foundations of Private and Public Law (Cambridge, Intersentia, forthcoming 2019). In the course of a 2000 year journey through landmark texts of European legal culture, 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 realize today.

In other published and developing work I consider the use of the thencique of legal validity in the context of particular legal regimes. The book Legislated Rights: Securing Human Rights through Legislation (Cambridge University Press, 2018), jointly authored with Grégoire Webber, Paul Yowell, Richard Ekins, Bradley Miller and Francisco Urbina, vindicates the special ability and responsibility of legislatures to provide a specification of open-needed considerations of justice invoked by human rights instruments and constitutional bills of rights. In a number of journal articles, including some of my review essays for the American Journal of Jurisprudence, I put pressure on the moral hazards of, amongst other things, law’s morally needed generality and its resort to presumptions and evidential exclusions. Such hazards, in turn, have implications for the kinds of wrongful conduct the law is fit to curb: I consider this in a draft article on how the Rule of Law places limits on the kinds of psychological harm that can rightfully be criminalized. I am also writing a critique of the widespread understanding of legal meaning on the model of communication, an exposition of an historical shift in the conception of legal power, and a reflection on how the medieval origins of the idea of a territorially-bound jurisdiction can enrich current debates on the limits of the sovereignty of nation states.

Publications

  • M Köpcke, Legal Validity: The Fabric of Justice (Oxford, Hart Publishing 2019)
    Critical human interests are affected on a daily basis by appeal to past decisions deemed to be 'legally valid'. They include statutes, deportation orders, judgments, mortgage contracts, patents and wills. Through the technique of validity, lawyerly reasoning settles morally pressing matters in a way that largely bypasses moral argument. Legal philosophy has paid considerable attention to validity criteria, but it has neglected to explore validity’s point: whether, and if so how, the pervasive technique of validity can contribute to a legal system’s ability to realise justice and human rights. This book shows that validity can help a political community to foster justice precisely because validity does not primarily turn on moral considerations. Validity serves to both allocate, and limit, a distinct kind of power, a power that is key to forging valuable forms of enterprise and commitment in pursuit of individual and collective self-direction. By entrusting the capacity to decide to those who, in justice, ought to bear it, validity can enable persons and institutions to rally the resources and opportunities that only large-scale behavioural convergence can afford, thereby weaving a fabric of just relationships within the systemic framework of law.
    ISBN: 978-1-84946-686-8
  • GW Webber, PW Yowell, M Köpcke and R Ekins, Legislated Rights: Securing Human Rights Through Legislation (Cambridge University Press 2018)
    DOI: 10.1017/9781108551069
    The important aspects of human wellbeing outlined in human rights instruments and constitutional bills of rights can only be adequately secured as and when they are rendered the object of specific rights and corresponding duties. It is often assumed that the main responsibility for specifying the content of such genuine rights lies with courts. Legislated Rights: Securing Human Rights through Legislation argues against this assumption, by showing how legislatures can and should be at the centre of the practice of human rights. This jointly authored book explores how and why legislatures, being strategically placed within a system of positive law, can help realise human rights through modes of protection that courts cannot provide by way of judicial review.
    ISBN: 978-1-108-42657-2
  • M Köpcke, A Short History of Legal Validity and Invalidity: Foundations of Private and Public Law (Cambridge, Intersentia 2019) (forthcoming)
    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.
    ISBN: 9781780688152