Filósofo Grego

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”. ...

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...