The Grundnorm and the Relationship between Effectiveness and Validity

It has been demonstrated in the preceding paragraphs that according to Kelsen, the reason for the validity of legal norms derives from a higher norm, and ultimately – in the case of constitutional norms, which are the highest positive norms of a legal system – from the presupposed or hypothesized Grundnorm. In this respect, Kelsen, following Hume’s philosophy,185 adheres strongly to the idea that an ‘ought-statement’ is separated from an is- statement.186 Therefore “the reason for the validity of a norm is always a norm, not a fact. The quest for the reason of validity of a norm leads back, not to reality, but to another norm from which the first norm is derivable…”187 Consistent with this view, he states that “…the efficacy of the normative order must be distinguished from its validity”188

However, Kelsen concedes that there are, at certain points, inevitable connections between is (fact) and ought (normativity-validity). Concerning this connection, the term ‘effectiveness’ (or efficacy) is the most important to be taken into account. As Kelsen argues: “[v]alidity and efficacy are two completely distinct qualities; and yet there is a certain connection between the two”189 The following statement reveals what Kelsen believes this connection is: “[j]urisprudence regards a legal norm as valid only if it belongs to a legal order that is by and large efficacious..”190 Therefore, in order for a constitution to be considered as valid, the legal system established in accordance with it must be, by and large, effective. The effectiveness of a legal order can be obtained in two ways: i) either the people bound by that legal order obey or conform with their actual behaviour to the legal norms by and large, ii) or, in case of disobedience, the sanctions prescribed by the legal norms are applied by the officials by and

184_{Kelsen, Pure Theory of Law, p. 201.}

185_{Andrei Marmor, Social Conventions : From Language to Law (Princeton, N.J. : Princeton University Press,}

2009 (hereafter as Social Conventions) ), p. 158.

186

“The reason for the validity of a norm is not, like the test of the truth of an “is” statement, its conformity to reality. [A] norm is not valid because it is efficacious. The question why something ought to occur can never be answered by an assertion to the effect that something occurs, but only by an assertion that something ought to occur” Kelsen, General Theory of Law and State, p. 110.

187 _{Ibid. p. 111.}

188_{Kelsen, “On the Basis of Legal Validity”, p.181-182.}

189_{Kelsen, “The Pure Theory of Law and Analytical Jurisprudence”, p.50} 190

large. In contrast to effectiveness, ineffectiveness of a legal norm, which sometimes arises from desuetude, i.e. non-use of legal norms, will cause the invalidity of that legal norm.191

Following these statements by Kelsen, the fact that the ‘efficacy’ as an is-form belongs to the category of facts inevitably raises the question (even though the answer might seem to be clear), pp. does the efficacy form a validity criterion of a legal norm in general and of a constitution in particular? Kelsen’s answer to this question is negative and the following statement deserves to be quoted in full to show the rationale behind his rejection: “The solution proposed by the Pure Theory of Law is this: Just as the norm (according to which something ought to be) as the meaning of an act is not identical with the act (which actually is), in the same way is the validity of a legal norm not identical with its effectiveness; the effectiveness of a legal order as a whole and the effectiveness of a single legal norm – just as the norm-creating act – the condition for the validity; effectiveness is the condition in the sense that a legal order as a whole, and a single legal norm, can no longer be regarded as valid when they cease to be effective. Nor is the effectiveness of a legal order, any more than the fact of its creation, the reason for its validity. The reason for the validity – that is, the answer to the question why the norms of this legal order ought to be obeyed and applied – is the presupposed basic norm, according to which one ought to comply with an actually established, by and large effective, constitution, and therefore with the by and large effective norms, actually created in conformity with that constitution”192

Even if this solution proposed by Kelsen might seem to be acceptable, there remains a point that needs to be considered: in order for a constitution to be accepted as efficacious, first, there must be a constitution which is already in force, i.e. already valid. In order for a person to obey the legal norms, that constitution must also be by and large effective. At this point, Kelsen seems to assume an overlap of the coming into force of a constitution and its acquiring of efficacy. However, there might be a period, a transition, during which the status of the constitution in terms of its effectiveness might be doubtful. Thus, the taken-for-granted effectiveness of the constitution might not in fact be the case. There is another point, which

191_{Kelsen determines that a legal order in which a few legal norms are not efficacious in some instances will not}

lead the entire legal order to be consider as inefficacious, and thus invalid. “…for it is possible that in a legal order which is on the whole efficacious, and hence regarded as valid, a single legal norm may be valid but not efficacious in a concrete instance, because as a matter of fact, it was not obeyed or applied although it ought to have been” Ibid. p. 51.

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concerns the issue of when exactly the Grundnorm shall be presupposed. Therefore, the question of which comes first – the effectiveness of the constitution or the presupposing of the Grundnorm – remains to be resolved in Kelsen’s theory, but he does not provide a solution.

Furthermore, even though Kelsen stresses the idea that being by and large effective is not the reason for the validity of a legal system, but rather the condition of its validity, in the last resort, it constitutes a slight difference at the practical level. For the position of the effectiveness as a condition of the validity of a legal order in his theory does not change its practical implication. So, the refusal of the idea that no ought (normativity) can be derived from is (facticity) seems to lead Kelsen to a impasse, because, ultimately the fact, i.e. being by and large effective, determines or affects strictly, the normativity.

As to the meaning of the term effectiveness, it seems that Kelsen sometimes uses it as equivalent to legitimacy in the sociological and political sense of the word, while sometimes ‘effectiveness’ evokes the term ‘power’, even though Kelsen strictly opposes the use of the latter term with regard to the reason for validity of a legal norm. In an example he gives concerning the gangster situation, the term effectiveness is used in the sense of (legal and political) legitimacy. When he asks why a gangster’s command cannot be accepted as objectively valid, and thus does not have to be obeyed, he states that it is because the command of a gangster does not stem from a lasting effective order (and at the same time because no basic norm is presupposed that would yield the objective validity to the gangster’s command).193

The significance of the term ‘effectiveness’ and its use by Kelsen become clearer in his attempt to explain the change of the Grundnorm of a legal system by a revolution.

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