A critical evaluation of the efficacy-validity criterion of Kelsen's Theory of Revolutions with especial regard to selected case-studies.
Cohrssen, Friedrich Karl.
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The efficacy-validity criterion of Kelsen·s theory of revolutions can be impugned in both its theoretical and practical dimensions. The philosophical foundation of this criterion is contained in the Is-Ought dichotomy between which there exists, according to Kelsen, an "unbridgeable gulf". The questionable nature of this premise is borne out by empirical examination in showing that there exists a necessary and substantial connection between the Is of socio-political and factual reality and the Ought of normative ideality, which far exceeds the minimum of effectiveness which Kelsen is prepared to concede as forming the content of the Ought. This becomes more apparent when a specific examination of this dichotomy is undertaken in relation to the efficacy-validity criterion, a special case of Is-Ought. Firstly, in its theoretical dimensions, it is clear that there exists a necessary and conditional relation between the efficacy of a single, individual norm and its validity. Secondly, and more significantly, there also exists a substantial connection between the efficacy (sociological sphere) and the validity (normative sphere) of the legal order as a whole. This is borne out by an examination of the pivotal Grundnorm conception which Kelsen postulates as forming the ultimate, presupposed 'Ought' validating a given legal order. Even from a theoretical perspective, it is clear that this conception is predicated on more than just the minimum of effectiveness which Kelsen concedes for it. In actual fact, this fundamental norm, which validates the legal order, is a product of the very "impurities" of sociology, politics, morality, justice, history, ideology etc. which Kelsen is so vehement in delimiting from the purview of bis Pure Theory of Law. The examination of this conception in its practical applications in dynamic revolutionary situations further underscores this point and, at the same time, exposes its limitations. This can be perceived in the fact that since the destruction of the Grundnorm of the old legal order need not be done contemporaneously with the positing of a new Grundnorm, Kelsen·s revolution theory admits of the possibility of there being a hiatus in the legal system. More significantly, the shortcomings of the Grundnorm conception highlight the deficiencies and inadequacies that inhere in Kelsen·s efficacy-validity criterion with which the Grundnorm is in extricably interlinked. As a result, and in order to reflect more adequately the underlying politico-sociological realities of revolutionary situations, additional and more flexible criteria are suggested in order to supplement the inadequacy of, or, alternatively, to limit the socially undesirable consequences of the employment of efficacy-validity in vacuo. In so doing, the necessary overlap between efficacy and validity in its practical dimensions is further underscored. It is especially in the critical evaluation of the relevant revolution cases that the practical inadequacies and uncompromising rigours of the judicial employment of this criterion are demonstrated. It is also noteworthy that the judges in certain revolution cases should have departed so markedly from the strict Kelsenism reflected in this criterion, by the employment of additional limiting principles. It is clear that while efficacy remains probably the dominant test of legality, its adoption as a blanket test of legality cannot be sustained. This holds equally true within the sphere of the international legal order. Although this criterion may be readily reconcilable with the traditional criteria of statehood (all of which are based. on effectiveness) this is no longer the case in modern state practice where further limiting and, at times, contradictory principles have been evolved to serve as criteria of legality.