An Inquiry into a Normative Concept of Legal Efficacy

• Published date: 01 December 2016
• Date: 01 December 2016
• Author: Andre Santos Campos
• DOI: http://doi.org/10.1111/raju.12143

An Inquiry into a Normative Concept

of Legal Efficacy

ANDRE SANTOS CAMPOS

Abstract. This essay argues that legal efficacy understood as existent binding force

and as dominance of a system of coercion vis-

a-vis competing systems is not strictly

a matter of fact, but involves what can be termed justified normativity in a factual

context. The argument is divided into four sections. The first three sections describe

different dimensions of a normative concept of legal efficacy applied to legal sys-

tems: efficacy as persuasiveness, as indirect communication, and as constitutive obe-

dience. The final section focuses on the efficacy of individual norms and adds a new

criterion – membership– which establishes a multi-layered test of efficacy.

1. Introductory Remarks

Among the basic elements that comprise the tests for the identity of legal systems and

norms, efficacy is in all likelihood the least controversial. Natural lawyers and legal

positivists share the view that there is no law in force unless there is a coercive order

that is generally adhered to by at least certain sectors of the population. For the most

part, all legal theories seem to agree that legal systems must by and large be socially

efficacious as a necessary condition for the existence of actual positive law rather than

defunct or prospective law. They differ only on matters such as whether “law in

force” means a legal system or an individual norm in a legal system, whether inter-

nalisation is a significant aspect of normative force, or whether efficacy refers to the

entire population or only to specific groups submitted to the legal system.

In the light of this apparently undisputed consensus, one could assume that

determining whether a legal system is by and large socially efficacious is a simple

task. Efficacy would appear to be the actual binding force of norms in a group, that

is, the factual existence of law. It would not be a normative concept per se insofar as

a norm, in order to be efficacious, would not necessarily have to be subject to

judgements prescribing that what is stipulated by the norm referred to in the

judgements ought to be done. The determination of efficacy would be a simple

matter of fact. However, some problems seem to arise from this consideration.

The characterisation of a system as “by and large efficacious” presupposes that

unanimity of acceptance and/or conformity with the legal system is not absolutely

necessary and that there is no undisputed method of computation or a certain

quantitative threshold that can be universalised. Except for cases of complete

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Ratio Juris. Vol. 29 No. 4 December 2016 (460–477)

inefficacy, the levels of efficacy that allow for the identification of law in force can-

not be determined exactly. Nevertheless, even though efficacy can be determined

statistically in various degrees, it can only function as a criterion of binding law

absolutely. For the purposes of determining the existence of bindingness, legal sys-

tems can only be efficacious or inefficacious: They cannot be so more or less.

This vagueness gives rise to a theoretical challenge to the law’s prevailing abhor-

rence of arbitrariness. In cases of political unrest that are evident mostly in times

preceding revolutions or civil wars, determining whether a system is “by and

large” accepted can be problematic, especially when silent majorities make their

silence difficult to interpret or when the sectors of the population in charge of

managing the legal system openly disobey certain norms. The problem is not that

of establishing a sociological method of ascertaining efficacy, but rather that of

finding a theoretical yardstick that determines a minimum threshold of acceptance

of a law’s bindingness in the light of which disagreement with the law’s content is

necessarily an exception. The problem of efficacy does not involve quantitative

tests developed by sociologists concerning how far laws are actually obeyed

(whether through descriptive or inferential statistics about levels of compliance

with established laws), but rather a yes-or-no condition for the existence of law in

force.

1

As a result, efficacy is not just a matter of ensuring that the law referred to is the

actual law of a society rather than a past, future, or imagined system. It is also a

matter of establishing what it means, theoretically and practically, to say that a

legal system is in force in a given community. Societies can be exposed to compet-

ing systems of coercion that base a claim to authority either on a presupposed

norm or on a practised norm. The qualitative yardstick that attributes by-and-large

efficacy to one system of coercion to the detriment of any other competing system

must then be the characteristic that describes how the overlapping system has

dominance over the others (Alexy 2010, 90; Hoerster 1987, 184). The identification

of dominance turns efficacy into a criterion that qualifies claims to authority as

actual exercises of authority.

For this reason, the conceptualisation of efficacy proposed in the following

should be used carefully when compared with other concepts, in particular legal

existence and validity. Insofar as it identifies actual dominant exercises of author-

ity, efficacy depends upon claims to authority existing in a factual context. How-

ever, efficacy as synonymous with factual existence (Bulygin 1990) is different from

what is often referred to in jurisprudence as normative existence (Nino 1978). In

the first instance, to state that a legal system or norm exists as efficacious is to state

a fact: A theory of legal efficacy concerns the criteria in the light of which elements

1

The concept of normativity employed in this contextdoes not have to be especially rich but it

must emphasize the ascertainment of efficacy as something more than a mere identification of

the factual existence of law in descriptiveterms. The use of a normativeconcept of legal efficacy

(or what mightbe termed “normative efficacy”)refers here to the determinationof the threshold

dividing actualbinding law from nonlaw or from nonbinding law, whichcould prove useful in

difficult cases such as those involving conflicts of norms and of sources that already seem to

comply with theminimum formal (or even moral) requirementsof lawfulness.

A Normative Concept of Legal Efficacy 461

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