Law as multidimensional phenomena [Post 24]

Validity and efficacy

Alchourrón and Bulygin state that in legal science there are empirical as well as logical issues.[1] It may seem that law as validity belongs only to the world of rules (where “logical” issues are to be found), and law as efficacy belongs only in the world of facts (where “empirical” issues are concerned). In any case, the relationship between validity and efficacy in the idea of law is “synergetic.” This is to say that although these attributes of “law” are meaningful individually, they capture more about what law is when taken together.

To summarize what has been said already, what law is might appear to be either:

  • Rules that are valid, whether or not they are effective; or
  • Rules that regulate behavior, whether supposed “valid” or otherwise.

A situation in which valid laws existed but were ineffective, can be described as a state of law having “broken down;” that here laws were only “theoretical”, or were “fictitious.” In this case, the law exists, but does not rule. The full meaning of “law” has clearly not been realized in such a situation.

A situation fitting the opposite description can also be imagined. Here, conduct is effectively commanded, forbidden, and regulated etc., but the governing “rules” are not recognized as “valid.” The possible criteria of validity are of course many, but on whatever chosen grounds, it is imaginable that these rules may not (for example) have been made by way of legitimate process, or they may command the immoral, forbid the legitimate, or regulate that which should not be regulated. Here, again, the full meaning of “law” has not been realized: the arbitrary word of a dictator “is law.”

It seems clear, then, that the true answer to what law is has to be more closely approximated in a situation in which law is both effective and valid. The meaning of “law”, though not of course exhausted by these two concepts, is nevertheless more deficient when one of them is missing.

But is the relationship between these two conceptual components simply one of co-presence in the concept “law”? Or do they in some sense interact, modifying each other? Alexy presents two possible accounts of this relationship, one “restricted” and one “comprehensive”:

According to the restricted view, what the law is depends exclusively on what has actually been issued and is socially efficacious. It is a matter of social fact. According to the comprehensive view, what the law is depends on what it is correctly taken to be. This view constitutes the participant’s perspective.”[2]

The “restricted” view, that validity depends only on efficacy, implies that socially effective norms may be valid even if they are severely unjust. Only “intolerable” injustice makes an effective norm lose its validity, because in order to be designated “intolerable” it would be clear that the populace was not tolerating it, and that its efficacy was thereby reduced.[3] Such an account of validity Bobbio describes as “reductionistic”[4]—since validity is reduced to efficacy. But on the more “comprehensive” view of validity that Alexy describes, value judgments of another kind are involved.

For Joseph Raz too, the validity of law is not achieved by its efficacy alone.[5]

Bulygin[6] mentions three different ways in which “facts” and “norms” may have a particular relationship: (1) in the case of issuing a norm; (2) in the case of derogating a norm; and (3) (he writes) “[a]nother necessary condition for the validity […] of a norm is according to Kelsen the efficacy of the legal order to which this norm belongs […].”

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Validity and efficacy: synergy (available from September 2021).

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 29th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

[1] C.E. Alchourrón and E. Bulygin, Normative Systems (Library of Exact Philosophy, Springer-Verlag Wien,1971), 53.

[2] R. Alexy, “On the Concept and the Nature of Law,” Ratio Juris 21:3 (2008): 281-299, 297 (emphasis added).

[3] Ibid., 282.

[4] N. Bobbio, Teoria Generale del Diritto (Torino: G. Giappichelli Editore, 1993), 31.

[5] J. Raz, “The Identity of Legal Systems,” California Law Review 59:3 (1971): 795-815, 801.

[6] Eugenio Bulygin, “An Antinomy in Kelsen’s Pure Theory of Law,” Ratio Juris 3:1 (1990): 29-45.

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