2.2. Permission and the exercise of normative powers

As one can easily see, the examples of permission we have been using belong to the sphere of rules regulating natural behaviour (where this means behaviour that does not consist in the exercise of a normative power).

We will now go on to look at the regulation of the exercise of normative powers. By this, we mean powers conferred by rules whose canonical form, as we already explained in the previous chapter, is of the type 'If state of affairs X obtains and Z performs action K, then institutional result (or normative change) R is produced'. A rule of this kind can, in turn, be affected by other rules, with respect to action Y or to result R, We will start with the latter.

In a very general characterization, we can distinguish between normative powers whose exercise is obligatory (as, for example, judicial power: judges have the obligation to produce institutional results of the 'judgment' type) and normative powers whose exercise is facultative (as, for example, the powers referring to the conclusion of private contracts).^[50] But this distinction is too rough, because a result could also be partly obligatory and partly facultative. For instance, according to the Spanish legal order, the government has the obligation to propose to the king a candidate for the appointment of prosecutor general, but it is relatively free in its choice of a candidate (relatively, because the choice must be from "among Spanish lawyers of recognized renown, having effectively exercised their profession for more than fifteen years"). So, for the government it is obligatory to propose a Spanish lawyer of recognized renown, etc., to be appointed as prosecutor general by the king; but it is facultative for it to propose, for example, the Spanish lawyer, of recognized renown etc., Mr. Garcigomez. It may also be the case that the exercise of one and the same normative power is obligatory in some cases and facultative in others.

According to Spanish law, for example, the members of the administrative board of a company are the holders of the normative power to convene a general meeting, and such a convention is obligatory in certain cases (in certain time intervals, when shareholders representing a certain percentage of total capital so request, etc.), and facultative in all others.

In order to clarify what it means that a normative result is 'facultative', remember the differences between mandatory and power-conferring rules as reasons for action. For this purpose, we will make use of Joseph Raz's theory of rules as reasons for action (1990), on the one hand, and a translation of some kinds of Kantian imperatives into the language of reasons for action, on the other. According to Raz's theory, mandatory rules are operative reasons of a special kind: they are protected or peremptory reasons for doing what they stipulate, excluding one's own judgment about the reasons pro and con as a guide for conduct. If, instead of Raz's theory, we adopt the Kantian classification of imperatives and adapt it to the language of reasons for action, we can say that they are categorical reasons: they indicate what should be done, regardless of the subject's wishes and interests. A permissive sentence can thus be regarded as the negation of a peremptory or categorical reason. Such sentences help to guide action, we said, insofar as, by cancelling or clarifying the non-existence of such a peremptory reason (for doing or omitting p), they make it possible for the wishes and interests of the subject in question to function as operative reasons.

Power-conferring rules, in contrast, affect behaviour in a very different, indirect way. They indicate how some given end, consisting in a certain normative result, can be attained. Thus, they are not — in Raz's terminology — operative reasons, but auxiliary reasons. Or, translating the Kantian classification of imperatives into the language of reasons for action, we could say that they are not categorical, but hypothetical reasons.

What happens here is that the legal order assumes that some of those ends or results the subject may want or not want — for example, to become a married person, to sell a rural estate belonging to him, to convene a shareholders' meeting if doing so is not obligatory —, while others are results the subject simply cannot not want: a judge cannot not want to issue a decision; the government cannot not want to appoint a prosecutor general, etc. One could draw a parallel to what Kant called problematic hypothetical imperatives and assertoric hypothetical imperatives and, consequently, speak of problematic hypothetical reasons and assertoric hypothetical reasons. A power-conferring rule is always a hypothetical reason, because it provides a reason for doing something if a certain state of affairs occurs, provided one also has a reason for attaining a certain result or end. A hypothetical reason is problematic if the power-holder is free to decide whether or not she has that reason for attaining the result; and it is assertoric if the reason for attaining the result is imposed on the power-holder, that is, if it escapes his (normative) control. That the normative result is regulated as facultative, then, becomes the 'indicator' showing that a power-conferring rule operates as a problematic hypothetical reason. Its function, thus, is that of specifying what kind of hypothetical reason the power-conferring rule it belongs to actually is. But, as we have already pointed out, a normative result may be obligatory in some of its elements, and facultative in others, or it may be obligatory under certain circumstances and facultative under others. If an element of the result (for example, to propose a candidate for the appointment of prosecutor general, and to do this by naming a Spanish lawyer of recognized renown, etc.) is obligatory while another one (e. g., to propose a specific person) is facultative, the rule conferring the power to produce that result is an assertoric hypothetical reason with respect to the first, and a problematic hypothetical reason with respect to the second element.

If bringing about the result is obligatory in some cases and facultative in others, the power-conferring rule is an assertoric hypothetical reason in the former, and a problematic hypothetical reason in the latter cases.

Concerning rules regulating natural conduct, we have seen before that the circumstances in which it makes sense to issue a permissive norm are either that there is some doubt about whether or not a given mandatory rule is applicable to the behaviour in question (what we called C₂), or that there exists a mandatory norm whose applicability to that conduct one wishes to cancel (what we called C₃). Are these the same circumstances that give sense to the issuing of permissive norms in the context we are discussing here? Obviously, when the permissive norm is issued simultaneously with the rule conferring the corresponding power, it makes no sense to speak in terms of C₃, for the simple reason that the form of behaviour consisting in bringing about a normative result has as a condition for its possibility the rule conferring the corresponding normative power. But it is, of course, perfectly possible that bringing about a certain normative result is modalized as obligatory (or prohibited) at the time the corresponding power-conferring rule is issued, and that one later wishes to cancel or restrict the scope of that mandatory rule. In order to do this, one can — as in the case of natural conduct — either issue a derogating provision or a permissive rule. With respect to circumstances C₂, from what we said before, it is obvious that, when the permissive rule about the exercise (or an element of the exercise) of a normative power is issued simultaneously with the rule conferring the power in question, the issuing of the former cannot fulfil the function of clarifying a previously existing doubt, but rather that of preventing ab initio that such a doubt arises, by formulating, at the very moment the normative power is conferred, a negation of the applicability of some mandatory rule, i.

e., some peremptory reason, to its exercise (always or under certain circumstances, concerning that power as a whole, or some of its elements).

Let us now examine the action the power-conferring rule links to the production of the normative result in question, that is, to element Y of our 'canonical form'. As we already indicated in the appendix to the last chapter, speaking of an 'action' in this context is a simplification. Because, as we said then, power-conferring rules usually do not link the production of a normative result to one single action but rather either to some set of actions (a course of action), to a disjunction of courses of action, or to a combination of both. In this context, we said, to qualify a course of action (a certain set of actions) or some fragment of it as obligatory means that one must necessarily follow that course of action, or fragment of it, in order to bring about the normative result (that is, that course of action or that fragment is a necessary — and possibly a sufficient — condition for that result), whereas to say that the norm-subject is permitted to choose between different courses of action — or that, within one course of action, at a certain point he can choose between different subcourses of action — means that to follow some of those courses or subcourses of action is a necessary — and possibly sufficient — condition for the result. 'Obligatory' and 'permitted', here, have an anankastic (or, from the point of view of their users, a technical), rather than a deontic meaning: in the first case, they indicate that the norm-subject, in order to bring about the result, must follow a certain course of action; in the second, that, in order to bring about the result, she may — in the non-deontic sense — choose between different courses or subcourses of action, and must choose one of them.^[51]

What has been said so far seems to enable us to confront, at least in part, the argument of the practical irrelevance of permissive norms given by Echave/ Urquijo/Guibourg.

In their funny little story, the conclusion is precisely that "things would stay exactly the same, as long as it did not occur to Toro Sentado to prohibit something". As we have already seen with respect to Alchourron and Bulygin, on the one hand the permissions issued by Toro Sentado imply prohibitions for possible future lower-ranking authorities: they are prohibited by Toro Sentado to issue norms that prohibit hunting on Tuesdays and Thursdays. On the other hand, by the mere fact of having elected Toro Sentado as their leader, the charrua actually have changed their normative universe, by introducing, in our view, a rule conferring power to Toro Sentado — the power to issue norms that are binding for the other members of the tribe. And that, obviously, does change the expectations of the tribespeople. Of course, what seems strange to us is that among the charrua there isn't someone — say, a Hartin — sufficiently alert to realize that the election of Toro Sentado has changed things, and a few other circumstances as well: first of all, that — in contrast to the idea of an empty normative universe which, according to the example, the charrua had of their own situation — that election presupposed at least the existence of a rule according to which the charrua as a whole had the normative power to elect a leader (that is, to confer on someone the normative power to issue binding norms, and to impose or — as seems to be the case of the example — not impose on him obligations and prohibitions concerning the exercise of that power); secondly, that, if the power to issue binding norms is conferred on Toro Sentado, one must determine what exactly Toro Sentado must do in order to issue such norms or (what amounts to the same) what course, or courses, of action Toro Sentado must follow, so that his utterings must be recognized by the charrua as constituting the issuing of a norm, or when an uttering of Toro Sentado must be regarded by them as constituting a reason for action and cannot merely be regarded as expressing an ought judgment by whose formulation Toro Sentado expresses the existence of reasons for action independent of his own utterings.^[52]

<< | >>

↑

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

2.2. Permission and the exercise of normative powers

More on the topic 2.2. Permission and the exercise of normative powers: