EVOLUTION OF THE CONCEPTS OF VALIDITY AND EFFICACY OF LAW IN HANS KELSEN’S PURE THEORY OF LAW
The article was prepared within the framework of the scientific project № 18?011?01195 “Validity and efficacy of law: theoretical models and strategies of judicial argumentation”, supported by the Russian Foundation for Basic Research. Abstract. Being one of the most influential schools in the jurisprudence of the XX century, Hans Kelsen’s pure theory of the law for the first time put in the center of philosophical and legal discussions the concepts of validity and efficacy of law. For 60 years (since 1911), ideas of validity and efficacy of law have developed together with Kelsen’s theory as a whole. The opposition between the Ought and the actual realization of a norm is already presented in Kelsen’s theory of the early (constructivist) period. However, a detailed study of this problem was found only in the pure theory of law of the classical period, when the concepts of validity as a mode of existence of law and efficacy as actual behavior corresponding to legal norms were formulated. The concept of validity of law is closely connected with the concept of the basic norm, which is the ultimate basis for the validity of the entire legal system and allows to interpret the set of actually effective rules as a valid legal order. The dialectics of the validity and efficacy of a particular norm is that the actual norm cannot be either totally effective or totally ineffective. In the pure theory of law of late (skeptical) period the concepts of validity and basic norm have received considerable improvement, bringing the theory of Kelsen closer to psychological and realistic legal conceptions. The key to understanding the new concept of validity of law is the distinction between general and individual norms. Austrian jurist considers the validity of general norm as a derivative from the validity of individual norms, as the latter consists of not only the heteronomic prescriptions, such as judicial decisions but also autonomous prescriptions addressed by an individual, recognizing the general norm, to himself. Scientist interprets the basic norm as a fiction, but it does not follow from its fictitious nature that this norm does not have validity (i.e. legal existence). In the course of discussion with the Argentine jurist E. Bulygin Kelsen made important clarification of the concept of validity and efficacy of law. Investigating the concept of efficacy of law Bulygin subjected the pure theory of law to criticism, assuming the actual identification of the concepts of validity and efficacy, as well as the inability to explain the efficacy of certain types of norms. In his response to criticism written in the second half of the 1960s, the Austrian jurist emphasized the difference between the validity and efficacy of norm and explained how the efficacy of permitting and empowering norms should be understood. The realization of the empowering norms and permitting norms is not by observance, but only through their application: individual using the appropriate power or permission acts similarly to the judge, applying the prohibition or prescription when setting the act of coercion against offenders.