Specification of this Concept
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Sarat and Kearns have described more concise and easily understandable explanations of this theory.31 They describe instrumentalism as conceiving law ‘as a tool for sustaining or changing aspects or social life’ and distinguish between ‘effects’ and ‘effectiveness’, believing that instrumentalists are centrally concerned with the effectiveness of the law and not the effects more broadly conceived and additional to the intended effects of the law. In addition, Robert W Gordon has noted how instrumentalists divide the word into a social and a legal sphere. Society is the primary realm of social experience ( . . . ) the legal system is a distinctly secondary body of phenomena. It is a specialized realm of state and professional activity that is called into being by the primary social world in order to serve that the world needs.32
Sarat and Kearns also note that whilst legal scholarship may be focused less on the study of gaps and effectiveness and more on the variety of relations between which law and other normative systems stand, such a focus would be encouraged by adopting the perspective of everyday life as the point of departure for law and society studies.
4. Specification of this Concept In many legal traditions, the focus of administrative law has been on its safeguard functions. Present-day administrative law is increasingly concerned with good governance principles and specifically the principle of effectiveness.33 This innovation in administrative law is important since policymakers have often complained that all sorts of legal restraints prevented them from taking the policy measures considered necessary. In the literature, the balance between policy rationality and the administrative law rationality is seen as a tension, not as an optimum. With the good governance view on administrative law, there is a more integrated approach which brings a better balance between the policy needs and the legal conditions of administrative law. Some authors give the principle of effectiveness a place in the distinction between the procedural and the substantive principles of law, concluding that it is a procedural principle.34 The procedural side denotes the existence of some procedural rights the applicant claims to possess because of an underlying legal norm which generates effectiveness. The substantive side refers to the situation in which the applicant seeks a particular benefit or commodity because of the effectiveness of the substantive legal norm. An administrative authority can also claim such a position in the procedure due to the public interest. It is submitted that the procedural side of the principle of effectiveness—effective protection and effective judicial review—is more developed than the substantive side.35 To conclude, the instrumental dimension is part of administrative law and the principle of effectiveness is also an element of that dimension. In this context, the focus of the principle of effectiveness is on the aim or the objective of a legal instrument. The principle has both a procedural and a substantive side.
31 34
Sarat and Kearns 1993, 23. Accetto and Zleptnig 2005, 383.
32
Sarat 1997, 18. 35 Tridimas 2006.
33
Buijze 2008.
