Efficacy as a Condition of Validity in Kelsen’s “General Theory of Norms”

Abstract

The paper aims to reconstruct and critically analyse efficacy as a condition of validity in Hans Kelsen’s General Theory of Norms both in the light of his newly introduced distinction between the conditional and full validity of a norm and the dynamic aspect of the legal order. It also aims to give a systemic account of efficacy as a condition of validity of both general and individual legal norms, taking into account the temporal aspect of validity, i.e., the moments in which a norm becomes valid and ceases to be valid, and the time span during which it remains valid. The paper first outlines Kelsen’s understanding of the concept of efficacy (Section 2). It then analyses and reconstructs the efficacy condition as a condition for the beginning of a legal norm’s validity (Section 3), and goes on to analyse and reconstruct the efficacy condition as a condition of the end of a legal norm’s validity. Finally, the paper systematizes the conditions under which the general hypothetical sanction-decreeing legal norm and the individual hypothetical and categorical sanction-decreeing legal norms acquire and lose their validity (Section 5).