The Relationship Between the Perception of Law and Its Effectiveness and Validity

Effectiveness and validity are two distinct metrics by which to evaluate law; while they seem to be part and parcel of each other, one asks how successful it would be in shaping the conduct of individuals while the other asks whether it is legally binding. However, for the sake of efficiency, this essay will assume that the perception of a legal system as unjust or illegitimate will mean the same thing: that the legal system is “wrong”. This essay will approach validity and effectiveness individually, and concluding that while the perception of a legal system being unjust or illegitimate is unlikely to influence the validity of the laws it produces, those perceptions are likely to render the law ineffective. 

On validity

The first view to evaluate is the positivist one. This sees a philosophy of law that emphasises how law is socially constructed; formal criteria of law’s origin, law enforcement and legal effectiveness are all sufficient for social norms to be considered law. It does not imply an ethical justification for the content of the law. 

One of the key theses under this branch of thought is the pedigree thesis, which asserts that legal validity is a function of certain social facts. Austin, a key proponent, argues that an important feature of a legal system is the presence of a sovereign who is routinely obeyed by most people, but not in the habit of obeying any other human superior. There are 4 main problems with this version of positivism. The first is that there is often no identifiable sovereign in democratic societies, as the idea of a democracy is to place power ultimately in the hands of the people. Secondly, the sovereign would be incapable of legal limitation in Austin’s paradigm, therefore ignoring existing constitutional provisions which limit the authority of the legislative body to make laws. Thirdly, as Hart points out, Austin’s theory provides at best, a partial account of legal validity because it focuses on primary rules but not secondary rules which bestow the power to create, modify and extinguish rights and obligations in other persons. Fourthly, Hart also argues that there would be no difference between the sovereign who governs by coercing behaviour and the gunman who orders someone to hand over their money. Therefore, this version of positivism cannot be relied on to adjudicate whether a law is valid or not. 

The more popular interpretation of positivism is the separability thesis which asserts that law and morality are conceptually distinct and implies that any reference to moral considerations in defining the related notions of law, legal validity and legal systems is inconsistent with the thesis. This can be summarised in Hart’s simple contention that “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so”. The empirical evidence can be found in the laws under the Nazi and Pol Pot regime, both of which made laws which were legally binding on individuals. Furthermore, I would further the claim by saying that any law at all is distinct from morality because morality is a subjective concept. As there are valid moral arguments for either side of the same issue, it is possible that most laws do not satisfy certain demands of morality. For example, valid laws on abortion tread on moral issues of the sanctity of life, bodily autonomy and women’s rights, and require the law to take a stance on those issues. They could be considered to be unjust but not invalid. This is why the claim of natural law theorists such as Aquinas, who argued that a human law is valid only insofar as its content conforms to the content of the natural law, and Blackstone, who argued that there can be no legally valid standards that conflict with the natural law and that all valid laws derive what force and authority they have from the natural law, empirically cannot apply. 

These arguments will be evaluated in light of the natural law theory of law. Firstly, there is Fuller’s procedural naturalism. Fuller argues that law is subject to an internal morality consisting of 8 principles, and that no system of rules that fails minimally to satisfy these principles of legality can achieve law’s essential purpose of achieving social order through the use of rules that guide behaviour. He goes further by saying that these internal principles constitute morality because law necessarily has positive moral value in two respects; that it conduces to a state of social order and that it does so by respecting human autonomy because rules guide behaviour. However, this argument does not succeed in proving that laws are not valid if they are perceived to be unjust or illegitimate; they are simply premises that can lead to morally good outcomes. They firstly do not guarantee moral outcomes; as Hart elaborated, all actions, including impermissible acts like poisoning, have their own internal standards of efficacy; but insofar as such standards of efficacy conflict with morality, it follows that they are distinct from moral standards. Secondly, they are not morally good in themselves beyond the fact that follow a proper procedure can be good in the categorical sense. 

This shows that the perception of a legal system as unjust or illegitimate does not affect the validity of law, as law is distinct from the perceptions of right or wrong of society. 

On effectiveness

The first thing to concede is that it is very likely that laws will continue to be effective in controlling the behaviour of a society due to the coercive power of the state. Rawls has argued that one of the two special features of “constitutional regimes” is the coercive nature of political power. Dworkin too has incorporated the assumption that state power is coercive in furthering his argument on rights-based theories of law. The reason states have this coercive power may be threefold. The first is that they have a monopoly over information through controlling mass media structures having the authority to censor and control the information dispersed by these sources. Furthermore, in issues like healthcare and national security, they tend to be a primary source of this information. This control over information influences both the perception of the state but also the decision-making process of the individual especially when they rationalise if they should obey a law or not. Secondly, they have a monopoly on violence by  controlling the police and the army to enforce sanctions like imprisonment and fines to dissidents of the law. This illustrates Louis Kriesberg’s observation that people “yield by reason of fear or actual force”. Thirdly, there is a lack of alternatives. As Rawls elaborated, the political society is closed as it is not easy for individuals to leave their state and move to one with a more palatable legal system. Furthermore, in developing democracies, it may also mean that you cannot influence the institutional structures which make law. 

It would be interesting to take as a supplement Hannah Arendt’s argument on the banality of evil in Eichmann in Jerusalem. She argues that Eichmann was an average and mundane person whose actions were motivated by a sort of complacency which was wholly unexceptional. The point is that it does not take for an inherently evil person to obey and be complicit in the immoral values of an immoral legal system. The unjust nature of a law does not negate its coercive nature. 

However, it is important to note that the effectiveness of law does not only hinge on whether people obey it or not. There are likely further responses to law, and I aim to illustrate four layers of impacts. 

The first is that there will be a sense of distrust. People are unlikely to trust the outcomes of that legal system. This entails two things. One, people will have a fear of the justice system especially if they feel that they are specifically being targeted by that system. For example, African American communities who perceive the legal system to be unjust both in terms of policing laws and adjudicating procedures are more likely to fear interactions with the police and courts than white communities. Two, there would also likely be a lack of cooperation with the legal system through actions like reporting crimes or seeking to mediate legal disputes through state adjudication measures. 

The second impact is that people will seek legislative change. This can happen through minute ways, such as jury nullification, but in most cases, it means rallying the political capital to vote for politicians who will enact more favourable laws. 

The third impact is likely to be civil disobedience, or passive resistance. Henry David Thoreau argues that individuals should not submit to the moral standards set by the state and allow themselves to be complicit in the injustice promoted by its legal system. This has taken form historically through the likes of Martin Luther King Jr and the civil rights movement in the United States, or the suffragette movement in the United Kingdom. Even in recent times, the Black Lives Matter movement has shown that civil disobedience is likely to be a response to an unjust or illegitimate legal system. 

The final impact is likely to be outright revolt, or active resistance. This is best illustrated by the response of the people of Tunisia, Libya, Egypt, Yemen, Syria and Bahrain in the early 2010s, who rose against their legal systems which they saw to be unjust and oppressive. The Arab Spring, as it is called, showed that people are willing to forcibly change their legal systems when it has reached the precipice and it has become too unjust or illegitimate to continue its rule. 

All of this shows that while the immediate response to any system of law may be compliance, there are different layers of response to the law that is likely to render a legal system ineffective. 

Conclusion

While the perception of a legal system as unjust or illegitimate is unlikely to affect the validity of that system, there are potential repercussive effects that will reduce the effectiveness of that law. This could be considered a self-correcting mechanism of any legal system to ensure that it just and legitimate. However, it should remain within the tenets of any legal system to pursue those virtues regardless.

- Paren