“Being” and law as “ought to be” as categories
“Ought to be” and “being” are, in the sense of logical categories, obviously different. But they are also related. First, of course, they may coincide in the instance of a “rightful” state of affairs; but also in the sense that “ought to be” contains the concept of existence as part of its meaning.
Logical being and ought to be, as categories of knowledge, only show an opposition of different points of view in conceptualization, but not an ontological antagonism or of objects that exclude reciprocally.
As the essence is different from the existence without opposing because the difference is not in the sense of contradiction, to a similar extent, the ought to be is not in necessary contradiction with the existence. Being and ought to be, in what they have to do with categories, only differ as concepts; only logically they do not have contact.
For law, therefore, its object is at one time validity and efficacy. To understand this relationship as a hypostasis is mistaken. Law, whether defined as a norm referred to human conduct (abstract conception of law) or human conduct center of imputative norms (factual conception of law), means that validity and efficacy are facets of its object.
As categories of knowledge, law is validity (abstract conception of law: ought to be, norm, the world of the rules) or efficacy (factual conception of law: being, facts, the world of the facts). As phenomena, law is in the validity that has efficacy.
In the theory of law, Kelsen refers only to “positive” law because it is the only law that exists. This is evident in one of the passages from The Pure Theory of Law in which Kelsen maintains that even though validity and efficacy are different things, despite that difference, there is a certain relationship of dependence between validity and efficacy. That is because the theory of law considers that norms are valid if and only if the legal order is effective as a whole.
Kelsen maintains that the dependence between validity and efficacy, or between normativity and positivity, cannot go beyond a maximum nor be below a minimum. If it goes beyond its maximum, in the sense there was no logical possibility of disagreement between a norm and the conduct (for example, if the legal order states, “you ought to do what you wish”), there would be a normative system without normative sense. On the contrary, without a certain minimum (for example, the conducts to which the legal order refers to were in contradiction completely with that order), it would also result in having an order without any sense. In the latter, the reason why a legal order has to lose its validity when faced with reality that does not comply with it to that extent is that the reality designed by the legal order is not present, hence it would result in a situation in which the intellectual (or rational) act would not have an object.
Being of law and the ways of being of law.
Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).
Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).
Saturday 15th May 2021
Dr Jorge Emilio Núñez