Law as multidimensional phenomena [Post 23]

Efficacy: force and coercion

A legal norm will be effective or in force as long as it is followed by the population to which it is addressed to—at least in a representative number or percentage, a sufficient number of members of that population.[1] Obviously, there will be conduct that deviates from the content stipulated by the norm. But, the rule, legal norm, legal order will also be effective or in force if the competent authority actually applies the corresponding coercive sanction when the antecedent happens—i.e. a broad account of coercion is present whilst a narrow account of coercion may be, depending upon compliance or non-compliance of the subject and actual use of force.

Coercion—narrow account—seems to have a more central role on the factual side of the law. That is to say, if the members of the population do not comply with the norm in a sufficient number or the consequences that ought to follow the antecedent in any valid norm do not happen in a representative number or percentage, that rule or norm is ineffective. So, if the coercive side of the norm or rule does not manifest when the antecedent happens, therein the valid norm or rule loses its force since it is not effective.

For example, if somebody kills somebody else, and the law says “whoever kills ought to be sent to prison,” the killer ought to be sent to prison for that norm or rule to be effective—i.e. the coercive element of the rule or norm has to manifest. If the killer did not go to prison, and therein the coercive element of that norm or rule did not manifest, there would be a non-effective norm.

Similarly, in the case of a contract in which the parties ought to sign in order for the document to be binding. For example, if there was a valid norm or rule stating that “for a purchase to be satisfied the seller and buyer ought to sign.” Consider the case in which somebody sells his house for a price but when reviewing the actual document that was meant to “transfer the property” to the buyer, one of the signatures is missing—either, that of the seller or that of the buyer. This norm or rule is in principle coercive in the sense the conducts of both the buyer and the seller are limited since they ought to sign the contract for the purchase to legally happen—i.e. to be, to exist. Now, if any of these two parties did not sign the contract, there would not be a contract at all. However, if the parties behaved as if there was a purchase even though the contract had not been signed, therein that norm or rule would be non-effective. That is because in addition to the norm or rule being coercive in the sense it limits the behavior of contractual parties by including requirements, the parties ought to comply with these requirements in order for that norm or rule to be actually effective.

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Validity and efficacy.

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).

Friday 25th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world


[1] The blog series does not discuss what expressions such as “representative number or percentage” or “sufficient number” mean. For simplicity, the blog series follows Philip Pettit—i.e. less than everyone, but likely to be nearly everyone. See P. Pettit, “Virtus Normativa: Rational Choice Perspective,” Ethics 100:4 (1990) 725-755.

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