Realist Ross
As a legal realist, Alf Ross saw the law produced by the legislative act as being not valid (gültig in German) in any other way but formally. This formally valid law only becomes legally valid (geltend in German) once it is effective - i.e., realised in society.
Ross writes: “I reject the idea of a specific a priori validity which raises the law above the world of facts, and reinterpret validity in terms of social facts” (Ross 1958, xi). According to this view, a formally valid norm is a norm, but it does not exist as a legal norm if its validity is only of a formal kind. From this viewpoint, the crucial problem is what the “social nature” of law actually means.Like American realism (pragmatic instrumentalism) he took off from the point that only the law applied by officials is “living”, or valid. Thus, the legal phenomena as the counterpart of the norms must be the decisions of the courts, and the validity of legal norms - as well as their existence - can therefore be sought solely in the judicial application of the law, and not in the law in action among private individuals.
One dimension of this idea is based on law always being the use of coercive force. Law is a power system. The courts realise the use of coercion by defining which actions fulfil the threat of sanction. In Rossian terms, law, coercion and adjudicative activity form the core of valid law. Nevertheless, Ross rejected the idea that coercion is a criterion of the validity. Of course, the judge uses power in the adjudication but this does not mean that the validity of law depends on power and coercion. Power is not something “behind” the validity, although law is, in simple terms, an instrument of power. The validity only results from the activity of the judges (efficacy).
A key to Ross' concept of the doctrinal study of law can thus be found in his theory on the validity of norms.
I shall illustrate this idea with certain ideas introduced by G. H. von Wright on the same subject, since they are even better suited to analysing the basic concepts about validity than the analyses made originally by Ross (von Wright 1968, 3, 1985, 267). von Wright writes that it is not often natural to talk about the existence of a (legal) norm. Instead, we can state that there is a duty to do something. What, in this case, does it mean that individual i has the duty to do, let us say, O?According to von Wright, this means the same as: i belongs to group C, of which it is (very) probable that if a member of group C does not do O, then some A regularly does R. Here it is presumed that A is an authority and R something that is unpleasant from the viewpoint of a member of group C, such as some “bad” or “unwanted” consequence.
von Wright goes on to say that the unpleasantness caused by R is, from C's viewpoint, greater than the benefit or advantage gained from not doing O. If, in these circumstances, individual i has the duty to do O, the norm N - “Every C has to do O" - is valid. A norm like this can be called a primary norm. Its “target” is precisely the behaviour of the citizen (C) and its validity depends on the reaction of the officials, in the aforementioned way.
The legal order also includes norms that oblige officials (A) to put consequence R into effect if an individual i of group C neglects to do O - that is, does not obey the norm N. It is this secondary norm that guarantees the realisation of the sanctions set in the primary norm. The validity of the secondary norm thus implicates the validity of the primary norm, but not the other way around, which is why the validity of the secondary norm presumes the existence of a “Hartian” rule of recognition or something like that.
Let me add that following von Wright's ideas, a norm that is not valid is a norm as well. There is no contradiction to the Rossian vocabulary. According to Ross, an ineffective (formally valid) norm is also a norm, although it is not a legal one. If a norm is not formally valid either, it may still be a norm but without any kind of legal significance.