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![handle is hein.journals/jisprud13 and id is 1 raw text is: JURISPRUDENCE Routledae
2022, VOL. 13, NO. 1, 1-25
https://doi.org/10.1080/20403313.2021.1981686 Taylor & Francis Group
In defence of systemic validity: extra-systemic and
unconstitutional norms*
Yahya Berkol GuIgee
Faculty of Law, Chair of Constitutional Law, Bursa Uludag University, Bursa, Turkey
ABSTRACT KEYWORDS
Systemic validity has been criticised based on its supposed inability Systemic validity;
to account for the validity of so-called extra systemic norms and incorporation of
unconstitutional statutes. The article argues that these criticisms international law; extra-
are not sound by demonstrating that no truly extra-systemic systemic norms; conflict of
norm is actually recognised as valid within the legal system and laws; abridged legislation
by claiming that there is nothing non-systemic with
unconstitutional statutes. On the other hand, with respect to
norms of public international law, foreign law applied in cases of
conflict of laws and the norms of the former legal system, what is
concerned is not the incorporation of the norms themselves, but
the contents thereof. This means that there is a norm within the
legal system identical in content with an actual extra-systemic
norm. This content-based incorporation is usually carried out with
two different methods respectively called 'dynamic' and 'static'
incorporation and neither case provides a challenge for the
understanding of systemic validity.
Introduction
Systemic validity is the general understanding of validity adopted by positivist theories of
law. Accordingly, a legal norm is valid only if it is created in conformity with the system-
based criteria.' Moreover, such legal norm stay valid only if, after being created in
accordance with the criteria of valid creation, it has not been repealed, annulled or other-
wise invalidated as envisaged by the system. System here refers to another norm valid in
the same legal system.2
As the basic understanding of validity for positivist legal theories, one may criticise
systemic validity from a natural law or realist perspective. From a natural law perspective,
it could be argued that systemic validity offers no explanation as to why a legal directive
issued in accordance with the relevant systemic criteria is binding on its addressees. On
CONTACT Yahya Berkol Gilge4 ybgulgec@uludag.edu.tr, yahyaberkolgulgec@yandex.com
*This article is based on the author's Ph.D. thesis. It consists of the elucidation and improvement of the arguments first
produced within the thesis. The title of the thesis is 'Akil Temelli Normativite Teorileri ile Hukuki Pozitivizmin Bagdastir-
lmas' (Reconciliation of the Reason-Based Theories of Normativity with Legal Positivism) (360-86), on file with Bursa
Uludag University Library System. The research concerning the dissertation has been funded by TUBITAK (The Scientific
and Technological Research Council of Turkey) and Burs Uludag University. For the published version of the thesis
please see Yahya Berkol Gilge , Normativite ve Pozitivizm [Normativity and Positivism] (On Iki Levha, 2020).
'Jerzy Wr6blewski, 'Problems of Objective Validity of Norms' [1983] Rechtstheorie 19, 19.
2ibid. 77.
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