Should legality be measured by effectiveness?
The principle of effectiveness in law is profound. Through it, the domestic law must at all costs not make it impossible or immensely cumbersome to enforce the rights that are extracted from the EU ( Waluchow, 1994) . That, therefore, gives a pointer that legality should be measured by effectiveness. It is essential in practice that the national procedural rules and obligations need to respect the proportionality principle. That implies that it only remains lawful if it does not serve to hinder much of the EU such that it cannot be justified. Waluchow (1994) asserted that Effectiveness in legality is shown by the level of compliance with the existing law. That does not incorporate any alteration of the law but the proper interpretation of the matter at hand. Effectiveness is crucial since otherwise any other theoretical or hypothetical system of coercive norms can become law, and the legal scientist will have to have to choose one arbitrarily.
How pure is a pure theory?
Hans Kelsen profoundly advocated for the pure theory of law. Loughlin and Tschorne (2016) confirmed that the argument made a standing recognition of the rules of the international community and the laws of the primitive societies. She claimed that the approach remains pure on two accounts. First is that it distinguishes law from facts and also that it separates law from morals.
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The theory presents its pure nature by separating jurisprudence from other disciplines, for instance, ethics, psychology and politics (Loughlin & Tschorne, 2016). That is significant since different disciplines possess separate methodology, and as such, it is difficult to do law analysis with it combined with other things. Hans Kelsen’s theory gives room for a pure “legal science.”
Reference
Loughlin, M., & Tschorne, S. (2016). Public law (pp. 324-337). Routledge.
Waluchow, W. J. (1994). Inclusive legal positivism (pp. 81-82). Oxford: Clarendon Press.
