3. The Concept of Effectiveness

international law in general and in particular of the obligations undertaken by parties to treaties, declining to have obligations negative by strained interpretation and holding that the maximum of effectiveness should be given to an instrument creating an obligation consistently with the intention of parties.

In both definitions, the focus is on two general meanings of effectiveness: namely the qualities or the ability to produce the desired effects. It can be used either to dictate that the facts adhere to the law (if it operates as a governing principle) or that the new law and legal status adapt the facts (if it operates as an assessment of the factual reality). Both sides of the principle are relevant in the framework of international law, European law, and national administrative law, and are ways of applying in concrete situations the legal concept of the principle of effectiveness.

The effectiveness aspects have been developed in the social science fields as well and from which we can learn the effectiveness of law—if not just ‘obedience to a command’—from a variety of mechanisms. Sociology uses various methods of empirical investigation and critical analysis to develop and refine a body of knowledge about human social activity. It is often conducted with the goal of applying such knowledge to the pursuit of social welfare in which the subject matters can range from micro to macro level. For example, in education, sociologists are using effective sociology assessment plans developed by mission statements, learning goals and objectives, and assessment mechanisms.

In economics, the terms ‘effectiveness’ and ‘efficiency’ are mostly discussed in the context of the public sector.11 It is important that the public sector provides the services required in the most effective and efficient way possible, which means the highest quality service at the least possible cost. In public administration, where the term ‘effectiveness’ is used, the predominant concept in economics is efficiency. With regard to the public sector, this means reaching a policy goal at minimum costs. One major concept of efficiency in economics is the Pareto criterion for allocative efficiency, which defines a situation as efficient when nobody can be made better off without making anybody else worse off. Other concepts, which are not relevant for our study here, are technical efficiency, productive efficiency, and dynamic efficiency, just to mention some.

3. The Concept of Effectiveness

We first explore the general aspects of legal effectiveness and then this principle as a principle of good governance. For a long time, effectiveness was not seen as a legal norm and therefore, at the national level, lawyers were not really interested in the discussion about the contents of the principle of effectiveness. However, in international law and especially in EU law we often speak about the concept of effectiveness or the principle of effectiveness. This principle is also seen in the context of, or as one of, the principles of good governance. Moreover, in EU law there have been strong developments on the good governance principles in different EU institutions. These norms, including the norm of effectiveness, are often seen as parameters for administrative actions, not only at the European level but also at the international level and, due to spill over, also at the national level. These developments will be presented below. There are also examples outside of the EU. For example, within the United States, effectiveness is treated much like accountability. There are many agencies and institutions that audit

11 Mulreany 1991, 7–36.

the government and its actions. For instance, the Department of Defense evaluates its decisions on national security and the army. They publish their missions as much as safety allows, however, their effectiveness lies in how well they accomplish their jobs.12

Another aspect which is relevant for the multilevel legal system is the idea that a distinction can be made between substantive and formal aspects of the principle of effectiveness. This is relevant because it has legal and non-legal consequences for both the activities of the administrative authorities and the decisions of controlling institutions. In July 2001, the Commission’s White Paper on European Governance was published. It explained the principles of good governance and the consequences of these principles were elaborated by concrete points of action.13 However, this was not the start of the discussions on good governance at the European level, since various contributions on the subject had already been made several years earlier.14 In 1991, the EU Council of Ministers provided a brief description of the contents and the importance of good governance in a resolution on Human Rights, Democracy and Development.15

In 1997, the European Ombudsman provided a definition of maladministration in his annual report and the European Ombudsman used the terms ‘Principles of Good Administration’ or ‘Good Administrative Behaviour’ frequently in their reports. Since 1998, the ECJ often refers to the ‘principles of good administration’.16

It is interesting to see that in the July 2001 White Paper, the Commission mentioned and developed five principles of good governance: openness, participation, accountability, effectiveness, and coherence. Earlier, in the White Paper on Administrative Reform that was adopted by the Commission, the same key principles of a European public administration were stressed.17 Later on, these elements were elaborated in the Commission’s Code of Good Administrative Behaviour.

In the White Paper, the Commission gave the following definition of effectiveness as a principle of good governance:

Effectiveness. Policies must be effective and timely, delivering what is needed on the basis of clear objectives, an evaluation of future impact and, where available, of past experience. Effectiveness also depends on implementing EU policies in a proportionate manner and on taking decisions at the most appropriate level.

It is important to conclude that not only the European judiciary and the European Ombudsman, but also the European Administration use the principles of good governance and are obliged to do so.18 But there are also problems with this way of defining, as it does not comply with the rule that a definition should avoid circularity. A definition is circular when the definiendum is defined in terms of itself.19 This is

12 These missions can be found at <http://www.defense.gov/about/>. 13 European Commission, White Paper on European Governance, July 2001, COM (2001) 428. 14 Chiti 1995; Schwarze 1995. 15 European Union Council of Ministers (1991), Resolution of the Council and of the Member States meeting in the Council on Human Rights, Democracy and Development, 28 November 1991, [Doc. no. 10107/91], (European Commission, Brussels). 16 ECJ 19 November 1998, C-252/96 P, Parliament v Gutierrez de Quijano y Llorens, ECR I-7421; ECJ 4 March 1999, C-119/97 P, UFEX and others v Commission, ECR I-1341; ECJ 9 September 1999, T-127/98, UPS Europe v Commission, ECR II-02633; also in the ECJ 13 February 2003, T-333/01, Meyer v Commission, ECR II-119 these terms were used; the Court also sometimes speaks of ‘Maladministration’, see ECJ 10 July 2003, C-472/00, Commission v Fresh Marine Company, ECR I-7541. 17 European Commission, White Paper on Administrative Reform, March 2000, COM (2000) 200, volumes I and II. 18 Decision of the Secretary-General of the Council on a code of good administrative behaviour, 25 June 2001 (2001/C 189/01). 19 Hurley 1999, 113.

exactly what happened in this definition, because the word ‘effective’ was used to determine ‘effectiveness’. This remark might not have a real value for the text, but the logic of this remark needs to be taken into account.

The European Commission stated that the application of these principles reinforces the principles of proportionality and subsidiarity. In our opinion, there is a broader legal effect which can be illustrated by the example that the effectiveness principle is nowadays seen as one of the general principles of EU law.

The discussion on the notion of good governance is not a discussion unique to EU law; in international law and national law we can find a similar debate, although these discussions are not always recognized as good governance discussions as they do not necessarily use the same terms with the same meaning. There are comparable tendencies in the discussions on good governance in three fields of law: administrative law, EU law, and international law. For this reason, it is very important to clarify the relationships between these discussions in the different legal fields.

The social science research on law is tied quite closely to the study of legal effectiveness. The goal is to understand the conditions under which legislation and judicial decisions effectively guide behaviour or result in anticipated and desired social changes. Legal effectiveness research begins by identifying the goals of legal policy and moves to assess its success or failure by comparing the goals with the results produced. Where, as is almost inevitably the case, the results do not match the goals, attention is given to the factors which might explain the gap between the law in the books and law in action. Sometimes the conclusion offers a reorienting strategy for empirical research on law in action.20

The dominating legal view of legal effectiveness in social science research21 is based on the idea of a gap between what the law states or commands and how the people act.22 When behaviour is not in accordance with law, the legal system is not considered completely effective. From a sociological and systems theory perspective, an analysis of legal application and legal effectiveness has been made. It is well-known that imported laws function worse than internally developed laws, but explanations differ. This suggests that effectiveness is connected to acceptance, but that is not the idea here. Acceptance is not a principle of good governance but more a part of democracy and legitimacy. The principles can stimulate democracy and legitimacy.

According to the conventional effectiveness concept, the poorly functioning imported law is a paradox. It has been shown that, from a new effectiveness concept, the poor functioning of legal transplants can be explained. In that concept, there is the idea that legal evolution may be accelerated by using laws from economic ideals such as the United States and Germany. Luhmann’s system theory suggests that effectiveness should not be understood as a matter of obedience, conformity, or application. Rather another level of analysis can be introduced which recognizes that people can reject not only the content of the legal message, but also the legal type of message. Legal references are a voluntary form of communication. People may refer to them or choose another form for expressing the functionally equivalent effect. When other types of communication are used, the legal system does not affect the choice of behaviour. A legal norm is effective in a population of users if they feel confident regarding their ability to use legal terminology with relevance for the norm, and feel confident that their communication will be accepted as law.23

20 Sarat 1985, 23. 21 Keefer 2004. 22 Torpman and Jörgensen 2005, 515; Hoekema 1998, 73–108. 23 Torpman and Jörgensen 2005, 533–4.

There are social science studies of legal criticisms about the central role of the ‘gaptheory’. Gap studies reflect an instrumentalist conception of law. This conception collapses the distinction between law and policy and ascribes to legal norms a primary importance in governing and directing social life. An instrumentalist conception of law begins by attacking the distinction between rights and results by suggesting that the language of rights provides a rationalization for legal decisions whose real origin is to be found in the imperatives of some utilitarian calculus, the power of some social interest, or the political preference of the decision-maker. These understandings of the sources of legal norms contrast with the so-called classical understanding of law, which assert the pre-existence of rights and ascribe to them a binding status as guides to legal decision-making. Instrumentalism denies the possibility of an objective or neutral legal logic; every legal act, every legal norm is portrayed as the product of some particular individual’s social choice.24

According to Austin Sarat, the sociology of law exposes and denigrates the claim that law and legal processes are neutral, autonomous, and impartial. The gap studies, however, call for more effective legal regulation and would subject society to a more penetrating legal order. The sociology of law becomes, at best, an alienated and alienating activity. At worst law becomes an unwitting ally of particular interests in this society.25 As Sennett26 writes:

The dilemma of authority in our time is the peculiar fear it inspires, is that we feel attracted to strong figures we do not believe to be legitimate. What is peculiar to our time is that the formally legitimate powers in dominant institutions inspire a strong sense of illegitimacy among those subject to them. Authority without legitimacy means that society is held together by its very disaffections.

For a more recent overview of the crisis in legal sociology in the literature, an overview of the two reference points has been given, one being the state, the other being the market. The central-sociological question raised in this constellation is about the effectiveness of law.27

As mentioned before, attention has been paid to the relation between the applicability and effectiveness of norms.28 Description of the law in force usually assumes that the legal norms which make up the system are applicable and effective.29 In a general philosophical analysis, the following general and intuitive definition of effectiveness is related to the observance of norms. A legal norm is effective when it is observed by its addressees. Although observance of norms is often regarded as a paradigm of the effectiveness of legal norms, there are also other criteria (eg enforcement or acceptance of norms) which are frequently employed in legal theory for assessing the effectiveness of law.

Effectiveness and applicability of legal norms are often related in several ways, but it is important to distinguish the two different concepts of applicability. The first one concerns the institutional duties of normative authorities and is called external applicability. The second refers to the spheres of validity of legal norms and is called internal applicability. A reconstruction of the concept of a norm must provide a proper account of the conditions under which certain properties, like effectiveness, can be attributed to legal norms. The notion of applicability can define the range of the concept of effectiveness. Our framework relies on certain conceptual distinctions, a brief sketch of which is necessary. 30

24 Sarat 1985, 24. 25 Ibid, 28. 26 Sennett 1980, 125. 27 Zumbansen 2009. 28 Navarro and Moreso 1997, 201. 29 Raz 2003, 203. 30 Navarro and Moreso 1997, 211.