In the last post I developed an argument for the idea that Kelsen’s third requisite for the validity of norms, that is efficacy, would not conciliate with the intention to keep his pure theory of law completely formal, capable of admitting any content as valid law.
My argument was that efficacy is a selective requisite, and since efficacy is a requisite for validity and since it is not the case that norms with every content can be efficacious, it is also not the case that norms with every content can be valid law.
In this new post I would like to challenge my own argument.
My strategy will be to distinguish between two senses of “formal”, only one of which is missing in the efficacy-requisite, and then distinguish the formality of the legal science and the formality of law, showing that the requisite of efficacy is incompatible with the latter, but not with the former.
First, I would define formality as “independence from content”. There are two senses for this “independence”: in a strong sense (as universal attainability), a requisite R is “formal” if R can be met by any content; in a weak sense (as lack of content-selection), R is “formal” if R admits of any content that can meet it in the first place.
Compare a requisite with a door: a door would be formal in the first sense if everyone can reach it and pass through it (as with a door on the street), but it would be formal in the second sense if, although not everyone can reach it, everyone who can reach it can pass through it (as with a door on the top of a mountain).
Well, efficacy, as criticized by my last post, would fail to be formal in the first sense, but would still be formal in the latter one. If a norm is to be efficacious, not every content can be valid law (efficacy is not universally attainable), but every content that can be efficacious can be valid law (efficacy is not content-selective).
The post would have to show either that efficacy is not formal in the latter sense too or that the first sense is the only relevant one in Kelsen.
Second, I would distinguish between the formality of the legal science and the formality of law. Kelsen never said that law was formal. Law is not only full of content but also those who make the law are specially concerned with turning certain contents legally required instead of others. They are occupied with legal politics, not with legal science, which is why they do not have to refrain themselves from considerations about content, being actually those officially responsible for those considerations.
The same is true about those who obey the law. If their obedience is not universal and unconditional, but selective and conditional, sometimes because of the content of the norms, it means that the point of view of the addressees, which is what makes law efficacious or not, is not formal.
But it doesn't mean that the point of view of the legal scientist, who only finds that certain norm is efficacious or not, without being the one who turns it efficacious or not, is not formal either.
Maybe the addressee is not prepared to obey to norms with any content (and that’s why not every norm can be efficacious), but the legal scientist is prepared to recognize as valid law norms with any content, as long as they are efficacious.
Therefore, in the end of the day, his point of view would remain formal. By recognizing as valid law only norms that are efficacious, the legal scientist is not making a content-sensitive judgment himself, but only verifying a requisite which results from a content-sensitive judgment from the addressee.
And that would maintain the core of Kelsen’s formalistic approach: to study descriptively a normative object, that is to study an object that is value-laden with a method which is value-free.