The question of effectiveness (also: legal validity ) arises for every measure aimed at triggering legal consequences .
It relates to private law legal transaction declarations (particularly at the conclusion or modification of agreements and legally formative actions, such as reminders and notices ); Furthermore, in public law, normative acts ( laws , ordinances and statutes ) and individual acts ( administrative acts , in particular official approvals or prohibition orders).
Depending on the type of legal act, its effectiveness depends on certain formal and material requirements. If these prerequisites, in particular the necessary authorizations , are missing , the legal act is ineffective .
Effectiveness of legal norms
A legal norm is effective if there is a reliable chance that it will actually bring about the prescribed behavior or, if necessary, be enforced through state coercion. This is a condition of legal validity . If this chance of enforcement is lost due to a revolution, for example, the legal norm loses its validity and becomes “invalid”. The mere chance of enforcement, as the camp regulations of a concentration camp can have, only justifies a conditional obligation: You have to obey if you want to avoid the otherwise threatening sanction. To bring about the date of application demanding to establish a rule of law also requires a normative legitimacy .
State legal guarantee
The demand for a state-guaranteed order of coexistence was raised against the historical background of the European civil wars of the early modern period. Since Jean Bodin and Thomas Hobbes it has been a characteristic of the modern state that living together in a state community is subject to a central legal regulatory power and must be guaranteed by this so that the people there can live in peace and security. However, it remains undisputed that the force of order alone is not enough to also ensure legitimacy, i.e. H. the date of application demanding to establish legal standards; because even the “ unjust right ” of an inhuman dictatorship can have an order-creating function.
States as legally organized structures of power and effects that can give a legal system secure effectiveness have come a long way. The international community is still on the way to a fully organized legal community. But because law and order alone does not guarantee justice, it is “highly questionable whether it should come to an end, with all the risks that such a consolidation of power would bring”.
The interlocking of state legal guarantees
State guaranteed law differs from other (such as moral) rules of conduct in that it can be enforced in procedures that are legally regulated. For example, norms that serve to guarantee payment obligations from a sales contract can be found in a code of civil procedure. This also contains provisions on the legal procedure in which the debtor's obligation to pay can be enforced. The obligations that apply to the judge himself in these court proceedings (e.g. the prohibition of perverting the law ) are in turn subject to legal guarantees such as criminal and disciplinary law. And there are standards that in turn guarantee these guarantees. In this way, legal guarantees of different levels interlock and a state legal system presents itself as a networked regulatory system, the elements of which are held together.
Forms of state legal guarantee
The fulfillment of a payment obligation, for example, can be directly enforced through a judicial process - by lawsuit, judgment and foreclosure . But if a careless driver has run over someone, then it is too late to force him to fulfill his duty of care in this case. Here, only a penalty can intervene and motivate the driver to drive carefully in the future, or prevent him from driving carelessly by withdrawing his driver's license ( special prevention ). A visibly imposed penalty can also urge other road users to be careful in traffic ( general prevention ). If legal acts violate legal provisions, compliance with them can also be guaranteed by declaring the illegal acts invalid or repealed by means of a normative review or, in individual cases, following an appeal .
“External” and “internal” effectiveness of legal acts
The statement “A legal act is effective” can have different meanings. External effectiveness means that it is legally "present" and z. B. can be attacked with legal remedies or lose its validity for other reasons. Internal effectiveness means that its legal consequences are to be observed immediately and immediately by those to whom it is addressed. Forbids z. If, for example, an authority is to operate an industrial plant beyond a period of six months in such a way that the exhaust gas from the plant contains more than 50 mg / m³ of total carbon, the prohibition becomes effective as soon as the authority informs the operator Has. From this point on, the ban is legally in place and can be attacked. The internal effectiveness - i.e. the obligation to obey the ban - does not come into effect until the six-month period has expired.
- Max Weber : Economy and Society. 5th edition 1976, p. 17 ff.
- Theodor Geiger : preliminary studies for a sociology of law. 4th edition 1987, p. 30 ff.
- Karl Engisch : In Search of Justice. 1971, p. 67 ff.
- Manfred Rehbinder , Helmut Schelsky (ed.): To the effectiveness of the law. 1972.
- Manfred Rehbinder: Legal Sociology. 6th edition 2007, § 7.
- Reinhold Zippelius : Basic concepts of legal and state sociology. 3rd edition 2012, § 11.
- Jean Bodin : Six livres de la république. I chap. 1, 8 and 10; Thomas Hobbes : De cive. Preface and chap. I 12 and V 6 ff .; Reinhold Zippelius : History of the state ideas. 10th edition, chap. 12.
- Reinhold Zippelius : Philosophy of Law. 6th edition, § 5 IV 2
- Reinhold Zippelius: Allgemeine Staatslehre , § 10 IV.
- Hans Nawiasky : General legal theory. 2nd edition 1948, pp. 13 f., 99 ff. Spoke of secondary legal norms that serve to enforce primary legal norms.
- Reinhold Zippelius: Philosophy of law. 6th edition, § 5 IV 1.