Development of the Principle of Effectiveness
143
the effectiveness of legal norms it shall be limited because of the phenomena of validity and realization.5 Validity means, in this context, that it is based on truth or reason and is acceptable. Realization is the point when you start to understand a situation or when you are becoming aware of it. The effectiveness of legal norms can be described as the relationship between their effective result and the social objects which the norm was designed to achieve. Often, different levels or dimensions of the effectiveness of legal norms are distinguished, like legal effectiveness and social effectiveness. Other dimensions can also be addressed, like economic effectiveness. Sometimes, these are described as the only dimensions or the most extreme dimensions. Legal effectiveness is furthermore described as the attitude of the addressees corresponding to the prescriptions of legal norms. Social effectiveness does not only focus on the lawful conduct of the addressee but also the realization of the social object which the regulation was designed to achieve. There are different conditions for the effectiveness of legal norms.6 These conditions are not only the legal conditions but also the non-legal, social, economic, cultural, ideological, political ones. They are not only related to the norms in the law as such, but also in the application of law and the level of legal consciousness. In the legal philosophical literature, a link is made between applicability and effectiveness of legal norms. That is relevant because a proper reconstruction of the concept of applicability is of great importance for understanding the concept of effectiveness and for providing insight into the nature of law.7
2. Development of the Principle of Effectiveness The principle of effectiveness has been developed because there was also a need to know whether or not a certain regulation had indeed produced the desired result. Often this was seen as a factual question and not as a legal question. This would suggest that while the principle of effectiveness is in the interest of good governance, it would be difficult to establish an effectiveness norm. At most, there can be an obligation to act in the interests of effectiveness or try to predict what the outcome of the decision will be. In the sense of effectiveness as a principle of good governance, the issue is very relevant from a more modern perspective. Policies must be effective and timely, delivering what is needed based on clear objectives, implementing policy in a proportionate manner, and taking decisions at the most appropriate level. Relevantly, we see that this effectiveness approach has consequences for new regulations as well.8 Effectiveness gives rise to different ideas. Some people immediately think about the goals of international regulation and what to do when these goals are not realized. Other people think about the implementation in the national legal system. Finally, some people are still of the opinion that this is not a legal question. Here we clarify the idea of the principle of effectiveness and the importance of this principle as one of the standing principles of good governance, which may be confusing in some discussions. We start with an explanation of the notion of effectiveness based on a variety of definitions and the position of this norm within the principles of good governance. Subsequently, we explore questions like ‘why is effectiveness relevant for law?’ and ‘which general aspects can be found in the legal fields?’ We explore three levels of law where this principle has been more or less developed: international law, EU law, and 5 8
Visegrády 2002, 52–6. Addink 2010c.
6
Ibid, 51.
7
Navarro and Moreso 1997, 201.
