Kelsen: Formalism, Efficacy, and Acceptability II

This new post is a continuation of this one.

In the last post I developed an argument for the idea that Kelsen’s third requisite for the validity of norms, that is efficacy, would not conciliate with the intention to keep his pure theory of law completely formal, capable of admitting any content as valid law. My argument was that efficacy is a selective requisite, and since efficacy is a requisite for validity and since it is not the case that norms with every content can be efficacious, it is also not the case that norms with every content can be valid law. In this new post I would like to challenge my own argument. My strategy will be to distinguish between two senses of “formal”, only one of which is missing in the efficacy-requisite, and then distinguish the formality of the legal science and the formality of law, showing that the requisite of efficacy is incompatible with the latter, but not with the former.

First, I would define formality as “independence from content”. There are two senses for this “independence”: in a strong sense (as universal attainability), a requisite R is “formal” if R can be met by any content; in a weak sense (as lack of content-selection), R is “formal” if R admits of any content that can meet it in the first place. Compare a requisite with a door: a door would be formal in the first sense if everyone can reach it and pass through it (as with a door in the street), but it would be formal in the second sense if, although not everyone can reach it, everyone who can reach it can pass through it (as with a door in the top of a mountain). Well, efficacy, as criticized by my last post, would fail to be formal in the first sense, but would still be formal in the latter one. If a norm is to be efficacious, not every content can be valid law (efficacy is not universally attainable), but every content that can be efficacious can be valid law (efficacy is not content-selective). The post would have to show either that efficacy is not formal in the latter sense too or that the first sense is the only relevant one in Kelsen.

Second, I would distinguish between the formality of the legal science and the formality of law. Kelsen never said that law was formal. Law is not only full of content but also those who make the law are specially concerned with turning certain contents legally required instead of others. They are occupied with legal politics, not with legal science, which is why they do not have to refrain themselves from considerations about content, being actually those officially responsible for those considerations. The same is true about those who obey the law. If their obedience is not universal and unconditional, but selective and conditional, sometimes because of the content of the norms, it means that the point of view of the addressees, which is what makes law efficacious or not, is not formal. But it doesn't mean that the point of view of the legal scientist, who only finds that certain norm is efficacious or not, without being the one who turns it efficacious or not, is not formal either. Maybe the addressee is not prepared to obey to norms with any content (and that’s why not every norm can be efficacious), but the legal scientist is prepared to recognize as valid law norms with any content, as long as they are efficacious. Therefore, in the end of the day, his point of view would remain formal. By recognizing as valid law only norms that are efficacious, the legal scientist is not making a content-sensitive judgment himself, but only verifying a requisite which results from a content-sensitive judgment from the addressee. And that would maintain the core of Kelsen’s formalistic approach: to study descriptively a normative object, that is to study an object that is value-laden with a method which is value-free.

Kelsen: Formalism, Efficacy, and Acceptability

For my dear advisees, especially for Vitor Marcellino and Pollyane Leitão

Kelsen establishes three requisites for a legal norm to be said to be valid. The first one is its belonging to an existing legal system, that is its legality. The second one is its containing of a sanction or connection to other norm which contains a sanction, that is its coercion. The third one is its being obeyed, that is its efficacy. Kelsen also states that his pure theory of law is formal, which means that it admits of any content to be law and its requisites are completely void of content.

In the case of the third requisite for the validity of legal norms, that is efficacy, we can challenge Kelsen’s belief that such requisite is indeed formal by reasoning as follows: a) if a requisite is to be formal, it must make no distinction among different possible contents; b) if the requisite of efficacy is to be formal, then efficacy must make no distinction among different possible contents of norms; c) if efficacy is to make no distinction among different possible contents of norms, then norms with every possible content must be able to be efficacious. But c) is not only an empirical statement (therefore, not much of a candidate for being formal), but it is also a glaringly false one. Therefore, efficacy is not a formal requisite.

We can go one step further and connect the issue of efficacy with that one of acceptability. It is obviously true that one of the many possible reasons for a norm to be inefficacious is the addressees’ rejection of its content, that is its lack of acceptability. If at least in some cases of inefficacy, the norm is inefficacious due to its unacceptability, then at least in some cases inefficacy will be an issue that depends on the content of the norm. Well, an issue depending on the content of the norm cannot, by definition, be a formal one. Therefore, efficacy is not a formal requisite.

This challenge could be met with the following response: If the efficacy of the norm were in any measure depending on the acceptance of its content, then it would not be a formal requisite. But in Kelsen’s theory, the efficacy of a norm is obtained by means of the sanction. Kelsen denies that a sanction alone can bring about efficacy for a norm of behavior, but, even when it does not, it creates a second kind of efficacy for a norm, that is the efficacy of its sanction. Then, even when the content of a norm of behavior were so unacceptable as to turn that norm inefficacious in the first sense (people not acting according to the norm commandment), the application of its sanction to the disobeying addressee would still turn it efficacious in that second sense (people who do not act according to the norm commandment being sanctioned).

However, it would only postpone the problem. The sanction would only be a solution for the problem of inefficacy if the sanction itself could never be inefficacious. But sanctions also have contents, and their contents can also be unacceptable. If at least in some cases the unacceptability of a norm entails its inefficacy, then at least in some cases sanctions that are unacceptable would also be inefficacious. It would happen not only in cases where sanctions are inhumane or disproportional, but also in cases where the sanction punishes the disobedience to an unacceptable norm of behavior. If the behavior commanded by the norm is unacceptable, then a sanction punishing the disobedience to such norm would also be unacceptable. If in some cases unacceptable norms of behavior can become inefficacious, then the unacceptable sanctions punishing those who disobey such norms cannot wait for a better fate. Otherwise we would be counting on totally cold-hearted sanction enforcers, capable of applying any sanction no matter how unacceptable it is, but, if we could appeal to fictional beings like that, we would have no reason not to appeal instead to perfectly obedient addressees, capable of obeying norms of behavior no matter how unacceptable they are. Fictions could have solved our problems many steps earlier. If, however, we are not fictionalizing, then the assumption that all sanction enforcers are totally cold-hearted is, to say the least, very unlikely to be true. Thus, sanctions would also depend on their efficacy, which would also in at least some cases depend on their content; therefore, efficacy, with or without sanction, would keep not being a formal requisite.

If that is right, we can not only come to the conclusion that efficacy cannot be a formal requisite, but we can invert that conclusion against Kelsen’s purposes and say that, introducing efficacy as a requisite for validity, Kelsen sheltered a material wolf covert with sheep’s formal clothing. For saying that every content can be valid law, but, in order to be valid law, that content must be efficacious is tantamount to saying that, as not every content can be efficacious, not every content can be valid law. And any theory that recognizes that is not a formalistic theory anymore.