Publications

The purpose of this work is to explore the relationship between the principle of efficacy and the rule of law as formal legality. A substantial part of the work is dedicated to reconstructing the foundation attributed to each notion in the prevailing legal theories and how they are related to the concept of law and the existence of legal systems. This examination shows that formal legality and the principle of effectiveness share the same foundation, which allows establishing certain relationships between them. The main results of this analysis are two. First, there is no unanimous determination about the relationship between the principle of efficacy and the rule of law as a legal formality with the concept of law and with the conditions of existence of legal systems. Second, two of the most influential positions in the literature on the relationship between both notions, present in the works of M. Kramer and J. Raz, have significant problems.

In Law and Disagreement, Waldron develops a theory of legislation in an attempt to justify the political legitimacy of parliaments and the authority of law. However, his normative proposal is intertwined with a descriptive theory that encompasses a theory of collective action and institutionalised groups, as well as an analysis of the structural and functional aspects of legislation. The paper sets out to rationally reconstruct this analysis with a view to critically assessing the contributions it can offer for the construction of a descriptive theory of legislation. It is concluded that while the structure of the analysis that identifies different aspects of legislation (agent, procedural rules, process and product) and their functional relationships is illuminating, the attributions of functions in Waldron’s argument are problematic as they are not informative of the actual functioning of the different aspects of legislation. Nevertheless, this is resolved if the functions Waldron highlights are understood as contributions of institutional arrangements to different capacities of aspects of legislation.

This article discusses a critical analysis of the formulation of the concept of effectiveness as success carried out by Liborio Hierro and of the possibility of evaluating the legislative teleological rationality through it. Based on an analysis of legislative activity and its product from the theory of legislation and a minimalist theory of collective action, it is argued that the concept of efficacy as success or effectiveness does not capture some characteristics of the activity of legislative assemblies; in particular, its collective agency, the diversity and conflict among its members, and the role of the rules that formalize the legislative procedure, focusing it on a text. It concludes with a correction to the concept of effectiveness as success of the laws and denying the possibility of evaluating, through this concept, the legislative teleological rationality.