Critique of our critique of the deontic (or prescriptivist) conception

2.1. Our central criticism against the deontic conception of power-conferring rules (that understands them as permissive norms) was that such a conception does not enable us to account for the difference between an irregular use of a normative power (the case of a judicial decision contra legem issued by a court on a case falling under its jurisdiction, or of an unconstitutional law enacted by a parliament) and a non-use of any normative power whatsoever (the case of the 'judicial decision' issued in a class of practical exercises by a student, the 'law' approved by an assembly of professors, the 'declaration of war' against some foreign power issued by the judge of a criminal court).

Awareness of this difference is, in our view, deeply rooted in the conceptual intuitions of everyone dealing with law. In addition, it seems that these conceptual intuitions hint at an important characteristic of reality, namely, that as long as there is no use of any normative power the normative universe remains unchanged (when a judge declares war on Serbia, for instance, this may give rise to a scandal and to questions about the judge's mental health in the press, but the normative universe regulating the relations between Serbia and Spain remains unchanged), whereas in the case of an irregular use of a normative power, a normative change is produced (if a criminal court after hearing a murder case issues a sentence contra legem, this does change the normative situation of the accused, irrespective of whether or not the decision in question can be appealed). Following von Wright, Mendonga/Moreso/Navarro say that it is "plausible to understand theoretical reconstructions as an explication of our conceptual intuitions".^[37] But in that case, it is obvious that a theoretical reconstruction of power-conferring rules that is shown to be unable to account for that difference — as is the case with the conception seeing them in terms of normative permissions — is a theoretical reconstruction which, for that reason alone, should be abandoned.

Now, Mendonga/Moreso/Navarro nowhere try to show that the deontic (or, in their terminology, prescriptivist) conception can account for that — in our view, crucial — difference. Instead they argue that, since the deontic conception does not claim to account for it, it cannot be required to do so. In their own words:

"For the prescriptivist conception, the existence of legal effects is neither necessary nor sufficient for attributing competence to a norm-authority. But if there is no conceptual relation between the two phenomena, then it cannot be right to say that the prescriptivist conception of norms of competence is deficient because it does not account for those legal effects."

But then, we admit that we fail to see what a theory of power-conferring rules (or rules of competence) could account for, if not the capacity to produce normative changes.

2.2. When referring to different types of irregularities of norms, Mendonca/ Moreso/Navarro perhaps inadvertently use the distinction between power-conferring rules (or rules of competence) and deontic or regulative rules referring to the exercise of such a competence — a distinction which in the context of a conception of power-conferring rules as deontic rules makes no sense. They say that "the expression 'irregular norm' can be associated with different states of affairs: i) a prohibited action performed by an incompetent subject; ii) an action that is not prohibited but is performed by an incompetent subject; Hi) a prohibited action performed by a competent subject". Now, on the deontic or pre- scriptivist conception, the set of normative acts a subject is competent to perform is identified with the set of normative acts that subject is permitted to perform. So, from this perspective, sentence i) would be merely a tautology, while sentences ii) and Hi) would be contradictory.

2.3. Mendon^a/Moreso/Navarro ask whether our thesis is "(T_}) In order to attribute competence to the organ that has issued an irregular norm N, it is necessary that N produces legal effects" or rather "(T₂) In order to attribute competence to the organ that has issued an irregular norm N, it is sufficient that N produces legal effects".

They seem to assume that by 'legal effects' we understand 'appealing the validity (legality) of a normative act', and on several occasions (e. g., in n. 3) they complain that we have not made it clear what we understand by 'legal effects'. It may be true that we have not been very clear on that point; but we think that anyone concluding that by 'legal effects' we understand the fact of filing an appeal must have read our paper in great haste. We also do not identify 'legal effects' with the possibility of filing an appeal, for the obvious reason that this possibility does not exist, for example, against a decision issued by a court of last instance, and no-one would doubt that issuing such a decision is a clear case of a normative act. By 'legal effects' we understand the effects the law, in each case, correlates with the performance of a certain normative act (issuing a judicial decision, presenting a bill of law, enacting a law, making a will...). And with respect to the possibility of appeal, what we hold is that the existence of that possibility presupposes either the performance of the corresponding normative act (what is disputed in that case is the regularity of its result) or some kind of appearance of a performance of such a normative act (what is disputed then is that such a performance has taken place, which implies disputing the very existence of the institutional result, irrespective of its regularity or irregularity). Once this is clear, it is, in our view, a necessary and a sufficient condition for attributing competence to an organ that has issued a (regular or irregular) norm that that norm produce legal effects, in the sense just explained — provided, of course, that we are talking about a norm that exists as the result of a process of enactment (that is, not a last norm, or a norm of common law, or a norm that exists merely as a logical consequence of other norms, since in those cases we cannot speak of enactment).

The case of the will Mendon^a/Moreso/Navarro refer to can be used as an argument against what has just been said — and maybe they see it in that way.

The case, as presented by our critics, is as follows. Suppose there is a norm stipulating that a necessary condition for performing the normative act of 'making a will' is the presence of two witnesses. Thus, our authors write,

"if the making of one's last will does not satisfy the requirement of the presence of two witnesses, then it is not a 'will'. However, as a question of fact, such a disposition can have the same effects as a will. Suppose a declaration of one's last will that is contested in court because it has not been put down in the presence of two witnesses, is declared valid by the judge. A-RM should say that the judge's decision constitutes an erroneous application of the law: a sentence contra legem, issued by a competent authority. But with respect to the disposition of last will, they adopt the opposite solution: even if that declaration is qualified as a 'valid will' by the judge and has full effect, A-RM would not accept that that declaration of last will is a will."

Our critics reconstruct correctly what would be our position on that case. Because we certainly do not believe — and here we also reply to an observation made several times in Caracciolo’s paper — that judicial declarations are a criterion of truth; but in our view, that does not pose any special problem for our conception. Since, in fact, if the normative act of 'making a will' has as a necessary condition that it must be done in the presence of two witnesses, then obviously in the case in question a will has not been made, no matter what the judge says. If the conditions stipulated as necessary for the performance of some normative act by a power-conferring rule are not satisfied, then the assertion that they have been satisfied and that the normative act has been performed is false, irrespective of who pronounces it. What happens is that, because of the normative powers of the judge, that circumstance becomes legally irrelevant (leaving aside for a moment the possibility of appeal).

But that is just the same as in the case of a judge's statements about whether or not some regulative rule has been violated. If John has not killed Peter, then the sentence 'John has killed Peter' is false, even when it is pronounced by a judge in a justification for a decision. But that does not mean that John cannot be convicted of murder and that (except for the possibility of an appeal) the fact that the decision is wrong cannot become irrelevant for John’s legal situation. It is the duty of the judge to qualify as a 'will' those, and only those, declarations of last will that satisfy certain conditions, and to convict of murder those, and only those, who have committed murder. But when — by mistake or intentionally — he violates these duties, his decisions are still judicial decisions, that is, they produce the legal effects the law has connected with their being issued. What the example shows is that — even in the case of the normative power to determine whether someone else has made use of another normative power — to use a normative power and to use it regularly are not the same.

2.4. Since we wanted to stress the difference between rules stipulating necessary, sufficient, or necessary and sufficient conditions for the performance of some normative act (that is, for bringing about some institutional result or normative change) and regulative rules discriminating between licit and illicit institutional results, we probably did not sufficiently elaborate the possibility that an appeal may contest the very existence of a normative result (that is, that the conditions a power-conferring rule stipulates as sufficient, or as necessary and sufficient, for the corresponding normative act have been satisfied), rather than its regularity. This seems to be the cause of some of Caracciolo’s understandable perplexities. He quotes a passage where we say that "the very fact that unconstitutional laws or illegal judicial decisions can be appealed shows that such laws or judicial decisions are precisely what they claim to be, that is, laws or judicial decisions.

Because there is no appeal against a 'law' issued, let's say, by a group of professors, or a 'judicial decision' issued in an exercise class in criminal law by an undergraduate student". He then comments that "this passage implies the implausible consequence that invalid acts, in the sense of V] (those that do not satisfy the rule of competence), cannot be appealed". We do not think that that consequence is implied by our statements. What we want to say is that in those cases where it is clear that the normative act has not been performed (because, for instance, the subjects were not qualified), obviously, no appeal is possible. But power-conferring rules, as any other norms, can, of course, be open-textured and thus have a zone of penumbra which can make it contestable whether or not the normative act has been performed; and therefore, legal systems foresee the possibility of an appeal in that case too. It should be noted, though, that in such a case, what is disputed is not whether or not the institutional result is irregular, but something prior, i. e., whether it exists at all.

2.5. We think that, generally, our critics' use of deontic operators in the context of power-conferring rules is flawed because they do not distinguish between the action element and the result element. We will try to explain this, starting with what we have called the 'canonical form' of a power-conferring rule: 'If state of affairs X obtains, and Z performs action K, then institutional result (or normative change) R is produced'. Now, consider element Y of this formula, that is, the action the power-conferring rule links to the production of the respective normative result. To speak of an 'action' in this context obviously is a simplification. So we should be a little bit more precise: Power-conferring rules usually do not link the production of the normative result to one single action, but rather to a certain conjunction of actions (a course of action), to a disjunction of actions or courses of action, or to some combination of both.^[38] In this context (that is, with respect to the relationship between the Y element and the R element of a power-conferring rule), to say that some course of action (some conjunction of actions) or some part of it is obligatory means that that course of action or that part of it must necessarily be followed in order to bring about the normative result (that is, that the course of action or that part of it is a necessary — and possibly a sufficient — condition for the result); whereas to say that the norm subject is permitted to choose among several courses of action — or that, within some course of action, in a certain part of it he may choose between different subcourses of action — means that following some of those courses or subcourses of action is a necessary — and possibly a sufficient — condition for the result. 'Obligatory', 'permitted', and 'prohibited' are not of a deontic, but of an anankastic character here:^[39] in the first case, they indicate that in order to bring about the result, the norm subject must follow a certain course of action, and in the second, that in order to bring about the result, it may — in a non-deontic sense — choose between different courses or subcourses of action and that it must choose one of them; 'prohibited' then indicates that a certain course of action is inadequate for bringing about the result.^[40]

In contrast, when referring to the result, 'obligatory', 'permitted', and 'prohibited' are deontic operators — deontic operators contained in rules that presuppose the effective production of the result, that is, that given state of affairs X, subject Z has performed one of the courses of action Y that are a sufficient, or necessary and sufficient, condition for the result.

2.6. We think that this can help us restate the problem of the 'judicial decision' issued by the student and solve a problem pointed out by Caracciolo, concerning the ambiguity of some legal provisions which, he says, can be interpreted either as permissive norms or as power-conferring rules. Let us use an, obviously, extremely simplified model of a power-conferring rule and suppose that X is the fact that someone is standing trial, Z is the judge in charge of the trial, Y stands for writing a document, consisting in 'material facts of the case', 'legal foundations', and 'ruling', and R means the institutional result of a 'prison sentence' referring to the person tried. In the case of the student, since element Z of the antecedent of the power-conferring rule is missing, the institutional result 'prison sentence' simply cannot be brought about, even if state of affairs X obtains and the student performs action Y. But we cannot say that action Y is prohibited to the student: there is no norm prohibiting to 'play judge' by writing such a document.^[41] But if, in contrast, X obtains and the judge is the one actually entrusted with the case, then X plus Y produce the institutional result 'prison sentence'. That institutional result may be the one the judge ought to bring about (it is his obligation to bring about) — that is, a sentence grounded in the law — or it can be a prohibited institutional result (a sentence contra legem).

Ricardo Caracciolo poses the problem of provisions which, in his view, are formulated in an ambiguous way that can be interpreted either as a permissive norm or as conforming to our 'canonical form' of a power-conferring rule, and he says that "in the absence of an additional criterion that could resolve the ambiguity, there is no way of saying that one interpretation is better than the other". The example Caracciolo gives is the following:

Under conditions X, the members of class Z are authorized to perform action R by way of procedure Y.

Our answer would be that if 'to perform action R by way of procedure Y means that the underlying action Y counts as the institutional action R (or, to say it in a more intuitive way, that by way of action Y institutional result R is produced) then such a provision can no longer be interpreted as a power-conferring rule, that is, a rule that constitutes the possibility of institutional action R, indicating that Y is a sufficient (or possibly a necessary and sufficient) condition for this. Besides, of course, a power-conferring rule not always needs to be accompanied by regulative rules deontically modalizing its exercise (or the modalities of its exercise). If there are no such regulative rules, the exercise of the power in question simply is free from any normative restrictions. In any case, in our view, the constitution of the possibility of institutional action R is a precondition for any deontic modalization of it. This is nothing but an application of the general idea — certainly shared by Caracciolo — that the deontic 'can' presupposes the aletic 'can'.

<< | >>

↑

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

Critique of our critique of the deontic (or prescriptivist) conception

More on the topic Critique of our critique of the deontic (or prescriptivist) conception: