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Hernández, Gleider I. --- "Effectiveness" [2019] ELECD 202; in d’Aspremont, Jean; Singh, Sahib (eds), "Concepts for International Law" (Edward Elgar Publishing, 2019) 237

Book Title: Concepts for International Law

Editor(s): d’Aspremont, Jean; Singh, Sahib

Publisher: Edward Elgar Publishing

ISBN: 9781783474677

Section: Chapter 16

Section Title: Effectiveness

Author(s): Hernández, Gleider I.

Number of pages: 14

Abstract/Description:

If one of the functions of the law is to prescribe norms of acceptable behaviour to members of a political community, then law’s effectiveness is part of the very idea of law itself, and it is for this reason that the concept of effectiveness operates within a legal order as a technique to adapt law to changing circumstances and, thus, to maintain its relevance to the society which it purports to regulate. Invoking effectiveness serves as an argument that both establishes legal authority and demands legal validation. There is a relative indistinction within the concept that suggests the alignment of the law with reality but also seems to suggest a particular form of alignment – one that entails the legal validation of reality, the coconstitutive dimension of which is perhaps the most striking. In this chapter, I put forward the argument that effectiveness plays a dual role: it exists as a notion to ensure, by its observance, that certain desired results may be achieved, and more prescriptively as a notion which assures, by its very existence, that those same desired results can be achieved. Within legal scholarship, then, effectiveness has historically operated as a sort of bridge between normativity (law) and reality (facts) within international law, serving to sustain the relation between the two.