2. Development of the Principle of Effectiveness

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 Visegrády 2002, 52–6. 6 Ibid, 51. 7 Navarro and Moreso 1997, 201. 8 Addink 2010c.

national administrative law. In each of these fields, we look for the specific meaning and application of the effectiveness principle.

The meanings and application in a non-legal context are relevant to understanding the development of this legal principle and therefore we have used some dictionaries. When we look at the general definitions of effectiveness in sources like the Oxford Compact English Dictionary and other dictionaries, we find in essence the following definitions: (1) producing a desired or intended result; (2) (of law or policy) operative; (3) existing in fact, though not formally acknowledged as such. In these definitions effectiveness also extends to functionality, meaning a functioning administration and system of judicial review. This is the procedural aspect of the principle of effectiveness.

Sometimes a broader definition of effectiveness can be found that includes an efficiency element. The efficiency element means doing things in the most economical way with a good input to output ratio. The word ‘effective’ here is, in essence, used in a quantitative way: ‘being very effective or not’. This does not shed light on the direction (positive or negative) and the comparison to a standard of the given effect. Efficacy, on the other hand, is the ability to produce a desired amount of the desired effect or success in achieving a given goal. Hence, efficacy means getting things done and meeting targets. Contrary to efficiency, the focus of efficacy is on the achievement as such, not on the resources spent in achieving the desired effect. Effectiveness in this context is doing the ‘right’ things, setting the right targets to achieve an overall goal and including the elements in the process. Therefore, what is effective is not necessarily efficacious, and what is efficacious is not necessarily efficient.

To sum up, the usual way to distinguish between the terms effectiveness, efficacy, and efficiency is as follows: • efficacy: getting things done, meeting agreed targets, only concerned with realizing the outcome as such; • efficiency: doing things in the most economical way, minimizing input and maximizing output; • effectiveness: doing the ‘right’ things, this means setting the right targets to achieve an overall goal, including the different elements in the process (the effect). The terms ‘effectiveness’ has various meanings in different disciplines. It is relevant to have some indications of the content of the word, especially in law, the social sciences, and economics.

The Oxford Legal Dictionary gives the following definitions: (1) producing a desired effect: effective revocation of the contract; (2) capable of bringing about an effect; effective assistance of counsel; (3) being in effect; (4) of a rate of interest: equal to the rate of simple interest that yields the same amount when the rate is paid once at the end of the interest period as a quoted rate of interest does when calculated at compounded interest over the same period.9 In the Oxford Companion to Law, one can find another legal definition as stated below:10

An important principle in relation to the jurisdiction of a court. In general, a court can only claim jurisdiction over a person or subject-matter of dispute if it can make any order it pronounces effective, by coercion of the individual seizure of the subject matter, or otherwise. Also more generally a principle followed by courts generally in that they seek to make law actually regulate the relations of parties and their rights and not be merely statements of pious aspirations. Thus the International Court has shown determination to secure a full degree of effectiveness of

9 Merriam-Webster’s Dictionary of Law 2011. 10 Walker 1980, 394.