Disruptive Implications of Positivism's Social Efficacy Thesis
The Cambridge Companion to Legal Positivism, Forthcoming
33 Pages Posted: 18 Jun 2019 Last revised: 16 Apr 2020
Date Written: June 17, 2019
The social efficacy thesis holds that for law to exist it must be generally obeyed by the populace. Accepted by virtually all legal positivists, this is the most neglected thesis of legal positivism. Despite its nigh universal acceptance by theorists, however, the efficacy thesis is surrounded with unanswered questions with significant implications. Several questions immediately come to mind: How widespread must conformity to law be? What must people conform to (all areas of law)? Who must conform (legal officials, government officials, the entire populace, significant groups)? What does conformity entail (normatively, knowingly, behaviorally)? This essay explores these issues and a few others, revealing a number of disruptive implications of the efficacy thesis for legal positivist theory. Most significantly, I draw on the empirical reality of legal efficacy to cast doubt on the unified monopoly view of law incorporated within concepts of law as well as on the purported guidance function of law. In the course of the analysis, I address the implications of legal pluralism for the social efficacy thesis, I show that the grounds of efficacy varies and has changed over time, and I offer an account of efficacy in modern societies that is not grounded on guidance or obedience.
Keywords: Legal Philosophy, Legal Theory, Jurisprudence, Legal Positivism, Legal Pluralism, Legal Development, Legal History, Law and Humanities, Legal Anthropology, Legal Sociology, Law and Society
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