Positivity and law

Kaufmann states in relation to law:

“The polarity of natural lawfulness and legality expresses the relation of the validity of law to its efficacy. We have here the key to an understanding of both main themes of legal philosophy: justice and certainty; law and power. Basically, they center on one and the same question, the question of the ontological structure of law. The monistic theories of law fasten on only one aspect of legal reality: positivism, on the existential; idealistic natural law, on the essential. The former sees only the certainty, the efficacy, the factual power of the norm; the latter sees law only from the angle of justice, substantive content and material validity. Positivism regards the validity of the norm to be result of its efficacy; idealistic natural law regards validity as the criterion of the efficacy. The problems concerning “law and power,” “justice and certainty,” are finally insoluble for both views; each has suppressed one member of the relation in favour of the other. […] validity and efficacy […] are neither identifiable nor antagonistic, but are related as polar forces and so stand in a fruitful exchange with one another.”[1]

Efficacy (or factual existence) has to do with the relationship between human conduct and a norm. Legal norms are effective if their addressees follow them. Yet, if law is the result of what the judges do when deciding a case, a legal norm is effective if and only if the courts apply that norm to facts. Many legal philosophers agree with the first notion.[2]

The word “efficacy” signifies the same as what is meant in the purity of legal philosophy by saying that norms are in force: the effective existence of a conduct in compliance with that addressed by the norms. For one version, efficacy or facticity is the fact that the effective conduct agrees with its representation given by the norms; thus, the norms are effective norms. The second version has to do with realism. For example, Alf Ross maintains that although individuals deduce their instructions from norms, “the real content of a norm of conduct is a directive to the judges” and therefore, it is in their decisions where “we must seek the efficacy that is the validity of law.”[3]

This distinction between efficacy understood as compliance with the norm by their addresses and application of the law by the courts is what Ferrajoli classifies as “primary” and “secondary.”[4]

In turn, for Kelsen a norm is effective when its addressees comply with it and in case they do not, the courts proceed. According to Kelsen the efficacy of law means that the norms are actually obeyed and applied.[5] That is to say, efficacy results a factual, empirical question or a question of facts. The facts that concern the legal world are those of human beings in relation to their behavior or conduct. Thus, a norm or legal order will be effective provided it is complied with by the community to which it is addressed, and provided its members behave according to what is established and do not do what is prohibited.

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Law as multidimensional phenomena [Post 21]

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Efficacy: force and coercion.

Author of:

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).

Tuesday 22nd June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

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[1] A. Kaufmann, “The Ontological Structure of Law,” Natural Law Forum, Notre Dame Law School Paper 95 (1963), 79-96, 81-82.

[2] P. Navarro and J. Moreso, “Applicability and Efficacy of Legal Norms,” Law and Philosophy 16 (1997): 201-219, 201.

[3] A. Ross, On Law and Justice (London: Stevens & Sons Limited, 1958), 33-35.

[4] L. Ferrajoli, “Principia Iuris. Teoria del Diritto e della Democrazia,” in Teoria del Diritto (Roma-Bari: Laterza,2007), 451-252.

[5] Hans Kelsen, General Theory of Law and State (Cambridge, Massachusetts:  Harvard University Press, 1949), 39.