A classification of legal sentences

The most general distinction one can make is that between different levels of language. It permits us to separate legal from meta-legal sentences. As we have seen, by doing this we can avoid several mistakes often made when it comes to identifying the rule of recognition, which is the only type of meta-legal sentence we have treated.

Within the class of legal sentences, i. e., those belonging to some legal system, not all are (at least, not directly) of a practical nature, because some of them (definitions) do not — or not directly — have the function of guiding (or justifying) behaviour; instead, they identify the meaning of other sentences which do have that function in some way. Among sentences of a practical nature, we also distinguished normative from evaluative sentences, depending on whether the dominant practical function is that of guiding or of evaluating or justifying behaviour. Normative sentences, in turn, can be sentences expressing norms, or sentences expressing the use of powers conferred by norms. In the latter case, we speak of normative acts, that is, a kind of speech act where, by uttering certain words in the appropriate circumstances, one 'does' things like enacting, derogating, sentencing, etc. Thus, through normative acts, normative changes or institutional results are brought about (norms are created or cancelled, or their domain of application is restricted, or the normative status of certain individuals or groups of individuals is altered). But acts, in contrast to norms, do not last in time; they expire with performance.

Within the class of norms, one can distinguish, as is usually done, between deontic or regulative and non-deontic or constitutive norms. The former regulate behaviour, the latter determine how institutional results or normative changes are constituted or brought about. The opposition of principles and rules takes place within the class of regulative norms.

As we have seen, that distinction can be drawn from three different perspectives — to which we will come back in the next phase —, but for the moment, what we are interested in is that both principles and rules can be action norms or end norms, depending on whether what is deontically modalized is an action or a state of affairs. The distinction between an action rule and an end rule, thus, runs parallel to that between principles in the strict sense and policies, in the field of principles. Since each one of these four kinds of norms can modalize behaviour with the operators 'obligatory'/'prohibited' or 'facultative', we have a total of eight types of sentences expressing deontic norms, although permissive sentences — where behaviour is modalized with the operator 'facultative' — could be translated into terms of mandatory norms (and definitions).

As for non-deontic or constitutive norms, we have distinguished two main types: power-conferring rules, i. e., rules stipulating what one must do to produce an institutional result or a normative change, and purely constitutive rules, stipulating that, if a certain state of affairs obtains, then — without any need to perform an action or activity other than that which may give rise to that state of affairs — a certain institutional result or normative change is produced. Power-conferring rules can make the exercise of the conferred powers obligatory or facultative, depending on whether the result in question is modalized by a regulative norm as obligatory or as facultative; in both cases, however, performance of some specific act or course of action for bringing about the result may be optional (if there is more than one course of action that will bring about the result) or not (if there is only one such course of action).

Thus, all in all, we have distinguished 19 types of legal sentences which appear in the classification of Table 1. Their analysis, as to similarities and differences (basically, using the threefold scheme that distinguished between the structure of the sentences, their consideration as reasons for action, and their social function in terms of their connection with powers and interests) leads to the results contained in Table 2, which we will now turn to.

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Source: Atienza Manuel, Manero Juan Ruiz. A Theory of Legal Sentences. Springer Netherlands,1998. — 205 p.. 1998

A classification of legal sentences

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