DHDI

Christoph Eberhard 30/04/97

“There are people who strive to invent lenses that will provide a comprehensive world view; there are others who prefer to look through their glasses in order to find out what is going on in the world.” (ROTTLEUTHNER 1989b : 780). In the following pages we will try not to much to philosophize about what “efficacy” of a whole legal order could mean in contrast to the efficacy of a a single law. We will rather try to look at the issue through sociological glasses oriented towards the search for possible empirical criteria allowing us to define “efficacy” of a whole legal order. In order to do so we will start by defining what is meant by the efficacy of a single law and by exposing how such efficacy can be empirically determined and the problems that are linked to it (1). We then will deal with the conceptual and practical problems linked to the transposition of the concept from the realm of a single law to the realm of a whole “legal order” (2). Finally, in order to give some hints of what efficacy of a whole legal order could mean without getting lost in philosophical abstractions we will try to draw on the lessons we could learn from the “efficacy” of the imported legal (state) orders in african states (3).

(1) First of all let us define what efficacy means, especially in contrast with effectivity. By “effectivity” it is the degree of realisation in social practices, of rules enunciated by law, which is designated, whereas with “efficacy” we refer to the appreciation of the consequences of legal norms and of their adequacy to the goals they are intended to achieve (“Effectivité” : 217; “Efficacité” : 219). Rottleuthner makes a further distinction between two possible ways of understanding “efficacy” (“Wirksamkeit”). For him “efficacy” can be either understood as the evaluation of the goal attainment by the law or as the establishment of the causal link between changed behaviour and the fact that this behaviour has been actually changed by the effect of the law and not by some other factors (ROTTLEUTHNER 1987 : 55). To show in an empirical verifiable manner how and why legal norms operate and turn out to be or not to be efficacious, Rottleuthner uses a model first developed by K.D. Opp and which has been refined by A. Diekman (ROTTLEUTHNER 1987 : 56-57 - I will use the english version of the model distributed during the lectures in the following pages). In this model there are two kinds of variables influencing the degree of compliance with a law. The variables of a first degree directly influence the degree of compliance with a law whereas the variables of a second degree only have an indirect influence mediated through the variables of the first degree. Examples of variables of the first degree are the degree of expected positive or negative sanctions in cases of compliance or non-compliance with a law, the degree of information about a law, the frequency of the type of situation to which the law might apply. Examples of variables of the second degree are the rate of detection, the degree of social stigmatization of a violation, the perceived moral competence of the legislator, the dissemination of information by the mass media (to see the corelations between those variables it is useful to have a look at the model : ROTTLEUTHNER 1987 : 57). To complete this first model Rottleuthner proposes a second one which enables him to handle laws which do not work with permissions and prohibitions (“Gebote und Verbote”) but which use financial incentives or compensations or which provide procedural offers (“Verfahrensangebote”) which can be used or not (ROTTLEUTHNER 1987 : 62). Here it is not the degree of compliance with a law which is relevant but the degree of use (“Inanspruchname”) of the law. What changes mainly in contrast to the first model is that being informed presupposes, more than just mere knowledge of the law, a more detailed knowledge of the procedures it proposes. Furthermore the problem arises that there may be people behaving in conformity with the law to get the financial incentives, but who would have behaved the same way without the law - in which case there is no direct causal relation between the law and the behaviour, and thus no efficacy of the law in Rottleuthner's second sense (ROTTLEUTHNER 1987 : 63-64). Problems arise from these two models in checking the efficacy of a law. First the issue of efficacy is seen from the point of view of a dyadic relation between norm-sender and norm-receiver, between order and obedience, between offer and acceptance of the offer. Thus the norm-receiver is perceived as a lonely individual, abstracted of all his social relationships and the models do not take into account the roles that pressure groups or not directly adressed groups (ex : not the norm-receivers but the ones whom the norm should protect) play in the compliance with the law and thus in the realisation of the goal of the legislator (ROTTLEUTHNER 1987 : 71). Furthermore this individual is seen as fundamentally rational, leading thus rather to an analysis in terms of “Zweck-” rather than “Wertrationalität” (ROTTLEUTHNER 1987 : 73-74). Last but not least the goal of the legislator is often far from being clear, which makes it difficult to check if the laws he passes manage to achieve their goal (ROTTLEUTHNER 1987 : 74-75). There is also one more general problem of efficacy research - its aim is to check in an empirical way the direct causality between laws and their effects and the conformity of that effects to the aim of the law. It thus tries to demonstrate simple causalities in the eminent complex field that society is and thus does not have the possibility to establish the ideal conditions for scientific experimentations and has to be content with quasi-experiments (“Quasi-Experimente”) which are comparative researches either in space (compare the effect of a same action on different groups (“Vergleichsgruppen-Untersuchungen”) : ex: the abolition of death penalty in different countries) or in time (“Zeitreiheanalysen”) (ROTTLEUTHNER 1987 : 75-76).

There are thus problems in Rotleuthner's efficacy research. Nevertheless this approach may be the only one trying to deal empirically with the problem of efficacy instead of transposing the whole problem on an intellectual debate where the whole empirical problem may be lost. This problem of efficacy becoming a problem purely internal to the operation of a legal system itself seems to arise in Luhmann's “autopoietic” theory of law. In this theory “the scope of interest (...) moves from input-output relationships, from exchanges between system and environment, to the internal operations of the systems themselves.” and “the theoretical perspective moves away from design and control to autonomy, from planning to evolution.” (ROTTLEUTHNER 1989b : 781-782). Thus while turning now to the question of efficacy of a whole legal order we will try to keep in mind our commitment to empirical research and to the theoretical perspective in which the legal “order” has effects on society, which can be measured, even if not with very high precision, and even though it may be difficult.

(2) The first question we have to ask ourselves is how we are going to define the “legal order” in such a way that it will permit us to undertake empirical research on its efficacy. Rottleuthner notices that “l'objet des recherches de la sociologie du droit n'est pas le droit comme un complexe de faits (...), mais les faits en relation au droit, c'est-à-dire les faits qui présentent une référence aux normes légales.” (ROTTLEUTHNER 1992 : 81). As concerns the norms themselves Rottleuthner argues that sociologists do not have, like anthropologists, to determine what these norms actually are but can rely on their correct procedural creation by the legal system to consider them as law. Their job is rather to confront the law and its effects, “law in the books” and “law in action”, rather than to try to define what law is. They thus have a state (“étatiste”) view of law (ROTTLEUTHNER 1992 : 77-78). For our efficacy research of a whole legal order we will thus consider the legal order as the set of rules and institutions steming from the state in order to organize it (and thus to organize the society that makes up the state).We will thus already consider as a legal order a set of state rules and institutions which is formally and professionally institutionalised (professionally because otherwise we could not study the application and the effects of the legal order as it would just remain an abstract idea) but will not take into account its sociological institutionalisation (VAN HOECKE 1996 : 19ss). Indeed “the 'sociological institutionalisation' of the law refers to the acceptance of the legal system by the people to whom it is meant to apply. From the point of view of the legal system it is the efficacy of the law which is in question.” (VAN HOECKE 1996 : 22). So not only are we not going not to take it into account to avoid having some circular definitions of “legal order” and “efficacy”, but furthermore will this “sociological institutionalisation” be one of the facts related to law that we will study to determine the efficacy of the legal order. Having said all this, and aware that we are treating the legal order as something distinct from the rest of society but which nevertheless influences it, we now can start thinking about the efficacy of such a legal order.

The problem of efficacy being linked to the attainment of specific goals through laws we will not dwell on the problems of the conformity of the legal staff, which relate rather to the effectivity of the legal order and are a precondition to its efficacy. The question of the efficacy of the legal order can thus be summed up in the question if the “state” succeeds through its institutions and through the rules it edicts to achieve the goals it has set to itself. We find here the same problems as already encountered above - at first sight they may even see to be increased as we are no more dealing with a simple law adressed to a specific group of people and having a more or less specific object but with a whole meaby very heterogenous and complex legal order with influences on an as much heterogenous and complex society. Doing efficacy research here in terms of research of individual behaviour according to all the different rules and institutions that affect the different individuals seems completely impossible, especially if we place ourselves in a perspective on the legal order which is proposed by Rottleuthner and which advocates the taking into account of “various dimensions of law”, of a “gradual concept of law”, of a variety of “types of statutes” and which invites us to “use the multitude of definitions of law's function in empirical research in order to find out to what extent they are achieved” by taking for example not only into account the system's but also the actor's point of view (ROTLEUTHNER 1989b : 794-795). Thus the option of empirical research seems to close down and we have decided not to follow “internalizing system approaches” à la Luhmann which tend to shift the problematic of empirical efficacy away from empiric evidence to system's theory which may lead to wrong pictures of relity by for example constructing “regulatory crisises” where there may be none (ROTTLEUTHNER 1989a : 273 ss). How then research about the efficacy of a whole legal order ? How find out, otherwise than by philosophical speculations, what the aim of a legal order is, and to what extent it succeeds in realizing this aim ? I think here the quasi-experiment made possible by the exportation of european (state) legal orders into non european environments (the former colonies which now provide us with comparative groups playing the role of a “mirroir déformant”) may give some insights into what the aims of our legal orders may be and to what extent they may succeed in realizing them. As Alliot says concerning the study of african societies : “Dans le miroir noir, nous apercevons la face cachée de l'Occident.” (ALLIOT 1980 : 155)

(3) Unfortunately we will not have enough space here to really develop our insights. But we will nevertheless try to open the path for some reflections. The state legal order has been used in african countries after the independances in a very openly aim persuing manner. This can be seen very well in the constitutions of the african states (the “Grundnorm” of their legal order) which have a marked ideological caracter and have to be understood more as a charta, a programme of (political, economic, social ...) action rather than as the basis and the guarantee of a legal order in the sense of a set of rules and institutions trying to organise the “rule of law”. As Conac says : “Les constitutions, en Afrique, ont une foncion pédagogique. Elles doivent contribuer à la formation politique et à la mobilisation des masses et des élites. C'est pourquoi certaines dispositions constitutionnelles énoncent des principes d'organisation sociale, fixent à la nation des objectifs à atteindre, définissent à l'intention des gouvernants des programmes d'action, correspondent à de véritables choix de société : elles font de l'Etat le garant d'une philosophie politique ou le promoteur d'une idéologie de développement.” (CONAC 1980b : 387). A western lawyer would be puzzled and meaby even shocked by the explicitely value ladden constitutions and their very flexible use by the leaders of the african states according to the needs of the moment. More over will he be shocked by the explicit political use of law which raises questions as to the relation between “droit du pouvoir” and “pouvoir du droit”. The african experience has shown that the capacity to use law, a whole legal order, as a tool for social change, national unification, economic development, has been highly overevaluated (CONAC 1980a : XVI). A legal order thus seems unefficaceous to bring about social changes if itself and its goals are not shared by society as a whole and do not stem from it. The inefficacy of the legal order becomes apparent in the lack of respect of the installed order by the legal staff itself as well as by the political order. It is also characterized by the lack of penetration of the legal order into society. The state order is to large extents either ignored or domesticated by the citizens who either rely on their traditional law or build up their own “droit de la pratique” founded on popular legitimacy and which can even come to be implicitely or explicitely recognised by the state which suspends then the application of its own law (LE ROY 1991 : 118-119). Thus it seems that while speaking of the efficacy of a whole legal order one cannot stay at a superficial level, noticing a regulatory crisis of the law and concluding from it a lack of efficacy of the legal order. One could at the most conclude to the inefficacy of a part of the legal order (ex: trade law - and even such a category seems to broad) but one cannot draw any conclusions as to the efficacy of the underlying paradigm which is the whole legal order and in which some disfunctions may take place without challenging the efficacy of the legal order as a whole which still remains the accepted structuring principle of life in society. The problem of the efficacy of a whole legal order thus seems to need to be posed on a much more fundamental level which comparative research on the efficacy of legal orders in different cultures seems to be able, at least partly, to reveal. It has to be posed on the very level of the acceptance of the structural paradigm that it constitutes. A legal order can only be considered as efficaceous if it fits the expectations of the society it wants to order and thus can be said to really structure the life of a society (on law as structure of society see : LUHMANN 1985 : 103 ss) by providing a generally accepted framework to the action of the people (individually or in groups) to whom the legal order is meant to apply. This general acceptance of a legal order can be empirically checked by research on the behaviour (rejection, use, creation or drawing back on alternative modes of organizing social interactions) of the different actors to whom it is supposed to apply (citizens, legal staff, political power ...). The comparative quasi-experiment of the reception of the state legal order in different cultural areas may provide criteria to work out a model of evaluation of the efficacy of a whole legal order. This model can (must ?!) of course be a gradual model ranging from complete efficacy, through greater or lower partial efficacy (efficaceous on some points, to provide a structure for some social interactions and for some social actors, but not providing such a structure for others) to complete inefficacy. This research could be supported by anthropological research which show us the links existing between “Penser Dieu (et) Penser le Droit” (Alliot quoted in ROULAND 1988 : 401), “Dieu” standing here for the ultimate structural principle on which societies rely upon to conceive about the universe and which influences the way they will structure their life in this universe, and thus in their society. In our western societies this structural principle is the one of an exterior god who imposes his order on his creation through general laws who have to be observed by all his creatures equally, even though the figure of “God” has been replaced by modernity by the figure of the “State” (ROULAND 1988 : 404-405). In our view the role of the legal order is seen as to constitute a neutral and secure frame for an ordered living together which is achieved through the means of general and impersonal rules, in other words it is to establish the “rule of law”, the “Rechtsstaat”, or the “Etat de Droit”. It seems to me that in these terms, which in the light of what we have seen above especially concerning the taking into account of non-western experiences, are not to broad and not so evident when one tries to think about the efficacy of a whole legal order, our western legal orders still seem very efficacious. The analysis in terms of “regulatory crisis” should thus in my view not be extended to test the general efficacy of a whole legal order but should remain limited to specific areas of law where efficacy research as developed in (1) can be used to empirically check this hypothesis. It is only in this way and by investigating upon the efficacy of whole legal orders by comparative researh in different cultures not sharing the same basic presuppositions as to their worldview as us, but having imported western legal orders to organise their societies, that we will be able to develop some meaningful and empirically grounded research on what the efficacy of a whole legal order could mean in contrast to the efficacy of a single law. As Michel Alliot writes :

ALLIOT Michel, 1980, “Le miroir noir - Images réfléchies de l'Etat et du droit français”, 1953-1989 Recueil d'articles, contributions à des colloques, textes du Recteur Michel Alliot” , Paris, LAJP, 1989 p 169-187

ALLIOT Michel, 1983, “L'anthropologie juridique et le droit des manuels”, 1953-1989 Recueil d'articles, contributions à des colloques, textes du Recteur Michel Alliot” , Paris, LAJP, p 251-268

CONAC Gérard, 1980a, “La vie du droit en Afrique”, CONAC Gérard (éd.), Dynamiques et finalités des droits africains - Actes du colloque de la Sorbonne “La vie du Droit en Afrique”, Paris, Economica, Col. Recherches Panthéon-Sorbonne Université de Paris I, Série: Sciences juridiques, 509 p (V-XXXX)

CONAC Gérard, 1980b, “Les constitutions des états d'Afrique et leur effectivité”, CONAC Gérard (éd.), Dynamiques et finalités des droits africains - Actes du colloque de la Sorbonne “La vie du Droit en Afrique”, Paris, Economica, Col. Recherches Panthéon-Sorbonne Université de Paris I, Série: Sciences juridiques, 509 p (385-413)

“Effectivité”, ARNAUD André-Jean (ed.), Dictionnaire encyclopédique de théorie et de sociologie du droit, Librairie Générale de Droit et de Jurisprudence, Cahors, 1993, 758 p (217-219)

“Efficacité”, ARNAUD André-Jean (ed.), Dictionnaire encyclopédique de théorie et de sociologie du droit, Librairie Générale de Droit et de Jurisprudence, Cahors, 1993, 758 p (219-221)

LE ROY Etienne, 1991, “Les usages politiques du droit”, COULON Christian, MARTIN Denis-Constant (éds.), Les afriques politiques, Saint-Amand (Cher), La Découverte, Col. Textes à l'appui, Série Histoire contemporaine, 294 p (109-122)

LUHMANN Niklas, 1985, A sociological theory of law, London, Boston, Melbourne and Henley, Routledge & Kegan Paul, International Library of Sociology, 421 p

LUHMANN Niklas, 1988, “The Unity of the Legal System”, TEUBNER Günther (ed.), Autopoietic Law : A New Approach to Law and Society, Walter de Gruyter, Berlin - New York, p 12-35

ROTTLEUTHNER Hubert, 1987, Einführung in die Rechtssoziologie, Germany, Wissenschaftliche Buchgesellschaft Darmstadt, 200 p

ROTTLEUTHNER Hubert, 1989a, “The limits of Law - The Myth of a Regulatory Crisis”, International Journal of the Sociology of Law, n°17, p 273-285

ROTTLEUTHNER Hubert, 1989b, “A Purified Sociology of Law : Niklas Luhman on the Autonomy of the Legal System”, Law & Society Review, Vol. 23, n°5, p 779-797

ROTTLEUTHNER Hubert, 1992, “Le concept sociologique de droit”, Revue interdisciplinaire d'études juridiques, n°29, p 67-84

ROULAND Norbert, 1988, Anthropologie juridique, France, PUF, Col. Droit fondamental Droit politique et théorique, 496 p

TEUBNER Günther, 1992, “Regulatory Law : Chronicle of a Death Foretold”, Social & Legal Studies, Vol. 1, p 451-475

VAN HOECKE, 1996, Jurisprudence, Reader for the academic year 1996-1997 at the European Academy of Legal Theory, 141 p