Positivistic Concepts of Law

Not only is it possible to combine the elements of social efficacy and authoritative issuance in different ways, it is possible to interpret them very differently, too. Because of this, the variety of positivistic concepts of law is wellnigh unlimited.

A. Primarily Oriented toward Efficacy

Definitions of law that are oriented toward efficacy are usu­ally found in the realm of sociological and realist legal theor­ies. What distinguishes one definition from another is whether the focus is on the external or the internal aspect of a norm or a system of norms. Here too, in most cases, the distinction reflects relative significance, not a strict dichotomy. And. in addition, there are frequently combinations of external and internal aspects.²¹

(i) External Aspect

The external aspect of a norm consists in the regularity of compliance with the norm and/or the imposition of a sanction

‘¹ An example of a combination of (he external with the internal aspect is found in Alf Ross, Of Law and Justice, trans. Margaret Dutton (London: Stevens & Sons, 1974), at 73-4.

for non-compliance. What counts is observable behaviour, even that requiring interpretation, and the main thrust of sociological definitions of law focuses there. Examples are the definitions of Max Weber and Theodor Geiger. Weber writes:

A system is to be called... /mv if it is externally guaranteed by the possibility of (physical or psychic) coercion through action aimed at enforcing compliance or punishing violation, the action of a staff of persons expressly geared to this task.²²

Geiger’s definition reads:

What law is, that is, the content that it seems to me practical to characterize with the word ‘law’, has already been explained in great detail: the social system of a centrally organized, broadly inclusive community, provided this system is based on a sanction-apparatus implemented monopolistically by particular organs.²'

Efficacy-oriented concepts of law that focus on the external aspect are also found in legal philosophy, especially in prag­matic instrumentalism or legal realism.

The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.²⁴

Max Weber, /.morality. If the positivistic separation thesis were certainly correct, analysis of the con­cept of law could be completely confined to the questions of what the best interpretation is of the elements of efficacy and issuance and how the relation between the (wo elements is best understood. The Federal Constitutional Court decisions sketched above, however, show that the separation thesis can at least be regarded as less than obvious. So the question becomes whether a positivistic concept of law as such is adequate in the first place, and (hat depends on whether it is the separation thesis or the connection thesis that is correct.

A.