First exclusion: Power-conferring rules are not deontic or regulative norms

Since the understanding of power-conferring norms as deontic or regulative norms or, more precisely, as permissive norms is very widely shared (if only implicitly, in some cases), we will not attempt to mention all, or even what could be called a significant sample of, the authors holding this view.

2.1.1. Von Wright treats power-conferring rules in ch. X of Norm and Action (von Wright 1963) under the label of 'norms of higher order'. Norms of higher order are norms whose content are normative acts, where that means the acts of giving or cancelling prescriptions. Now, with the help of this concept of norms of higher order, von Wright writes, "we can illuminate one of the most contro­versial and debated notions of a theory of norms, viz. the notion of validity" (ibid., 194). "There are", von Wright continues, "at least two different, relevant meanings of the words 'valid' and 'validity' in connexion with norms. [...] One sense in which a norm can be said to be valid is [...] the factual aspect of law as the efficacy of a commanding will" (ibid., 194 ff.). This sense, then, is more commonly known today as simply the 'efficacy' or 'effectiveness' of a norm and, for our purposes, can be left aside.

"Under this other meaning the validity of a norm means that the norm exists and that, in addition, there exists another norm which permitted the authority of the first norm to issue it. If we decide to call the act of issuing a norm legal (or lawful) when there is a norm permitting this act, then we may also say that the validity, in the sense now contemplated, of a norm means the legality of the act of issuing this norm." (ibid., 195)

"A norm is valid when the act of issuing this norm is permitted. It is a theorem of deontic logic that, if an act is commanded, then it is also permitted. Therefore, an order to issue norms entails that the norms issued under that order are also valid, i. e. their issuing is permitted because com­manded." (ibid., 198 f.)

"We could sharpen our definition of validity in such a way that to say that a norm is valid shall mean that the authority who issues it has a permission amounting to a right to issue the norm. Normative competence or power would then mean permissions in the stronger sense of rights to perform certain normative acts. [...] I think that this reshaping of our definitions should take place. The higher-order permissions of which we have here been talking should be regarded as rights." (ibid., 206)

According to von Wright, normative competence or power thus amounts to the permission (whether in the stronger sense of a 'right' or not) to perform certain normative acts, that is, certain acts of giving or cancelling prescriptions (of in­troducing or expelling norms). And a norm is valid — in the pertinent norma­tive sense — if the act of issuing it is permitted by another higher-order norm.

Although they explicitly consider a somewhat more restricted domain — not that of competence in general, but only that of judicial competence —, Al- chourron and Bulygin, in Normative Systems, have advocated a conception of power-conferring rules that basically coincides with that of von Wright. They offer the following interpretation:

"Following traditional terminology, we shall call norms of competence the norms conferring ju­risdictional powers on the judge, that is, the power to judge. Such norms establish that certain persons can (are competent to) deal with certain kinds of cases and issue certain kinds of deci­sions, observing certain formalities.

Norms of competence are norms of conduct for the judges, if we regard them as permissive norms establishing the permission to perform certain acts in certain circumstances. [...] It is im­portant to stress the difference between the norms of competence (which are permissive) and those which impose obligations and prohibitions on judges, which also are norms of conduct." (Alchourrdn/Bulygin 1971,151)

The conclusion from this is the same as in the case of von Wright: To say that "organ X is competent to perform the normative act F means exactly the same as to say "organ X has been permitted to perform the normative act K'.

Now, legal organs, e. g., legislative or jurisdictional organs, not only per­form regular normative acts like, for example, issuing a law that does not violate the limits set by the constitution, or a judicial decision in accordance with the law. As everybody knows, sometimes they also perform irregular nor­mative acts, like issuing an unconstitutional law, or a judicial decision contra legem. With respect to this — as long as we understand power-conferring rules as permissive norms — obviously there are only two alternatives: either the legal organs are not permitted to perform such normative acts; or they are in­deed permitted to perform them. But, as we will presently see, this constitutes a real dilemma.

Let us now see what happens if we tend towards the second alternative we have with respect to irregular normative acts if we understand power-con­ferring rules as permissive norms, that is, the alternative to say that such acts are permitted. This is Kelsen's position.

2.1.2. Our purpose here is not to undertake Kelsenian philology, or to follow the meanderings of his evolution concerning the higher norms that determine the production of lower norms.^[16] We are only interested in his thesis that irre­gular normative acts are permitted acts or, more precisely, that there are no such irregular normative acts because the law permits its organs of production to issue norms of whatever content (we will consider this thesis in the version which is now commonly referred to as the 'classical' one, that is, that of the sec­ond edition of the Pure Theory of Law). Let us begin with Kelsen's statement of the problem:

"[S]ince a norm belongs to a certain legal order only because and so far as it is in accord with the higher norm that determines its creation, the problem arises of a possible conflict between a higher and a lower norm. The question then arises: What is the law, if a norm is not in conformity with the norm that prescribes its creation and, especially, if it is not in conformity with the norm predetermining its content. [...] a legal norm which might be said to be in conflict with the norm that determines its creation could not be regarded as a valid legal norm — it would be null, which means it would not be a legal norm at all.” (Kelsen 1967, 267)

Anyone would say that what follows from this is that, since judicial decisions contra legem and unconstitutional laws are, by definition, norms which are not in accord with the higher norms determining their production, such decisions and laws are not legal norms at all. However, this is not what Kelsen thinks. He wants to account for the fact that such laws or judicial decisions can either be appealed — if there is an organ entrusted with controlling the constitutionality of laws, in the first case, or if they come from a court that is not the last instance, in the second — or are definitely binding — if there is no such organ, or this organ cannot be appealed to, in the first case, or if they come from a court of last instance, in the second.

"[N]ot only is a general norm valid that predetermines the content of the judicial decision, but also a general norm according to which the court may itself determine the content of the individ­ual norm to be created by the court. The two norms form a unit [...]" (Kelsen 1967,269)

"The meaning of the constitution regulating legislation is not that valid statutes may come into being only in the way directly stipulated by the constitution, but also in a way determined by the legislative organ itself. The provisions of the constitution which regulate legislation have an alter­native character." (Kelsen 1967, 273p

To sum up, all "higher norms" that "determine" the creation of norms — in Kelsen's conception, all legal norms except individual ones (like judicial deci­sions or administrative resolutions) that order specific acts of material execu­tion — are said to have the form of a disjunction, consisting in their explicit content and a tacit alternative clause that permits the respective norm-creating organ to disregard that explicit content. In this way, all normative acts are per­mitted by higher-order norms, and all norms issued through such acts are "in accord" with those higher norms, just as any state of affairs in the world is 'in accord' with any tautology. But just as a tautology does not have any informa­tive content, a legal system composed — with the one exception indicated — entirely of norms with a tautological content (that is, norms that cannot by any means be violated) does have no normative significance — that means, it can­not serve as a guide, or a criterion of evaluation, or a model of interpretation — concerning the conduct of its organs, since whatever that conduct may be, it is necessarily in accord with the system.

Kelsen's attempt to account for irregular normative acts, based on a conception of power-conferring norms as permissive norms, thus leads to a form of dissolution of the law as a normative system that regulates its own creation.

2.1.3. Therefore, it seems that any attempt to define what it is to have the nor­mative power to perform a normative act Y in terms of having the permission to perform that normative act is bound to lead to a dilemma whose two horns are both dead ends. Neil MacCormick, in his famous article 'Law and Institutional Fact' (1986), has proposed a characterization of power-conferring rules in non- deontic terms which, in our view, points into the right direction. But by adding a certain deontic surrounding to his initial definition, MacCormick's proposal, as we already anticipated and will now show, is led back into the messy terrain it had been saved from by the non-deontic character of its point of departure.

In 'Law as Institutional Fact', MacCormick presents legal institutions (legislation, contracts of commercial exchange, wills) as consisting of three kinds of rules: 'institutive' rules determining the essential conditions for the existence of a particular case (the Law of University Reform, the marriage be­tween Peter and Mary) of a legal institution (legislation, marriage); 'consequen­tial' rules determining the legal consequences of the existence of a particular in­stance of an institution; and 'terminative' rules determining when a particular case of an institution ceases to exist.

Power-conferring rules can be of any one of these three kinds of rules, although not all the rules of each of these three kinds are power-conferring rules. MacCormick nevertheless limits his analysis of power-conferring rules to 'institutive' rules. An institutive rule that confers a legal power, in his view, has the following 'general form':

"If a person having qualifications q performs act a by procedure p and if the circumstances are c, then a valid instance of the institution I exists." (MacCormick 1986,65)

A formulation of this type — or the more detailed one to be found in MacCor­mick (1993) — seems to have the advantage of enabling us to avoid the dilem­ma which, with respect to the irregular exercise of normative powers, arises, as we have seen, for whoever insists on understanding power-conferring rules as permissive norms. Since it apparently does not contain any deontic element, MacCormick's formulation of a power-conferring rule is compatible with any normative qualification, by any other rule, of the conduct consisting in the per­formance of the normative act a. If that act, for example, consists in issuing a judicial decision contrary to law, performance of that act is prohibited by a legal rule, but that does not mean that the competent judge cannot successfully use the rule that confers on him the power to issue a decision, or that his deci­sion contra legem isn't a valid (that is, recognized as such by the law) particular case of the legal institution 'judicial decision'.

Unfortunately, MacCormick does not take this — in our view, promising — way he himself opens up with his general formulation of a power-conferring rule. The reason for this is that he does not understand 'a valid particular instance of institution F to be synonymous with 'a particular instance of institution I, recognized as such by the law', but with 'a particular instance of institution I which organs of control do not have the duty to cancel'. Thus, the deontic element that seemed to be absent in his general formulation reappears. Let's look at it somewhat more closely. MacCormick writes that we cannot be sure about the conditions that, in each particular case, are sufficient for the validity of a particular instance of a legal institution; as an example, he refers to the will in Riggs v. Palmer, the case made popular by Dworkin. As is well- known, that will, which favored the grandson of the testator, had been made ac­cording to all the requirements of the corresponding New York statute. How­ever, as is also well-known, the court ruled that the will should be annulled, on the grounds of the principle that nobody shall benefit from his own illicit ac­tion, because the grandson himself had murdered the testator. MacCormick adds that similar situations can be found: "To take but one branch of law, ad­ministrative law abounds with illustrations of cases in which decisions made by competent bodies in accordance with all expressed statutory requirements have been set aside for some defect in the circumstances or manner of making the decision, the justification given by the court being in terms of appeal to general legal principle" (MacCormick 1986, 70). And he concludes: "It is the open- ended nature of the exceptions justified by the principles of natural justice, ab­use of discretion, and such like, which would be fatal to any attempt to repre­sent the express institutive rules as containing necessary and sufficient condi­tions for valid adjudication by tribunals or whatever" (ibid., 70).

As we already said, in our view MacCormick here confuses two quite different things, both entailed by the ambiguous expression 'valid'. Because one can speak of a 'valid' will, a 'valid' administrative resolution, a 'valid' judicial decision, etc., simply to say 'recognized as such' — that is, as a will, an ad­ministrative resolution, or a judicial decision — 'by the law'. But we can also speak of a 'valid' will, administrative resolution, or judicial decision in order to say that the respective act does not violate any of the requirements violation of which generates a duty of annulation on the part of some organ of control. MacCormick's examples of a will, an administrative resolution or the exercise of judicial power are obviously 'valid' in the first sense, and that is precisely a necessary condition for their being 'invalid' in the second sense (that is, that they can and ought to be annulled). In this context, of course, it does not matter whether they should be annulled because they contradict a general legal prin­ciple or because they contradict some rather specific rule. What matters is that if a will, an administrative resolution or a judicial decision should be annulled for violating some mandatory legal norm (whether that is a rule or a principle) this implies that the thing to be annulled is (recognized by the law as) a will, an administrative resolution or a judicial decision. And the problem a theory of power-conferring rules must solve is to spell out the conditions for successfully (that is, in a way that is recognized by the law) creating things like laws, wills, resolutions or judicial decisions — whether or not those laws, wills, etc., may then be annulled for violating some mandatory legal norm (again, we insist, ir­respective of whether this is a specific rule or a general principle).