Social norms and problems of efficacy and effectiveness of legal norms

Abstract

Legal theory, in general, has understood informal or social norms as a matter that is not an obstacle to the efficacy or effectiveness of legal norms. On the contrary, social norms are presented as constituting the fabric that allows the Law to be recognized as such (Hart, 1994) or to be efficacious (Postema, 2012). This paper presents the idea that -unlike what has been highlighted by the legal theory- sometimes, social norms are in competition or tension with legal norms and generate that the latter are inefficacious and/or ineffective. From this approach, and departing from the example of gender inequality as a paradigmatic case of this competition, different combinations of functional and dysfunctional interactions between legal norms and social norms will be presented, including their results in terms of efficacy and effectiveness of legal norms. As a final consideration, the paper briefly discusses, the idea that the improvement of the efficacy and effectiveness of the law requires to direct our attention towards processes that promote higher rationality in legislative activity.