2.1. Permission and the regulation of 'natural' conduct

So far, we have examined what we believe to be the most relevant statements to be found in contemporary legal theory on the topic we are interested in. Now, we must come back to the two questions formulated at the beginning and try to confront them directly.

That the answer to the first question is not completely negative can be seen more clearly when one realizes that the question is somewhat ambiguous. Because to say that in a legal system S there is no norm referring to p can mean that

1) p is not a conduct falling within the sphere regulated by S; in other words, conduct p is indifferent with respect to S;

2) p is a conduct that is relevant for system S, but there is no norm re­ferring to p, because:

a) such a norm has not been considered necessary (for example, because the possibility that extending the scope of some mandatory norm to include p would be a sustainable interpretation or that a lower-ranking authority may try to introduce a mandatory norm referring to p has not been considered), or

b) conduct p has not been foreseen:

b') for subjective reasons, that is, through a fault of the legislator;

b") for objective reasons, that is, because after the norms of system S were enacted, new circumstances — new possibilities of action — have arisen which the legislator could not foresee.

Obviously, the distinction between 1) and 2) presupposes that there is such a thing as legally indifferent behaviour, that is, behaviour a legal system is just not interested in, at least not for the time being. Thus, the concept of legal­ly indifferent behaviour is relative to a specific legal system at a specific point in time. Of course, it may be difficult to determine where the legally indifferent ends, at a certain time and with respect to a certain legal system, i. e., to determine (in the terminology of Alchourron/Bulygin 1971) the Universe of Discourse (the set of situations and states of affairs) and the Universe of Actions a specific legal system is interested in. But, in any case, the concept of indifferent behaviour is, in our opinion, clearly applicable to partial subsystems (which lawyers usually work with) such as, for example, family law, or the law of the autonomous community of Valencia. In those cases, the Universe of Dis­course and the Universe of Actions may have some zones of penumbra, but that implies that there is also a zone of clarity: it seems obvious that there are forms of behaviour family law, or the law of the autonomous community of Valencia, does not care about. With respect to the legal system as a whole, however, it is doubtful whether there is any truly indifferent behaviour. The fact that, as Raz (1990, 154) says, legal systems claim authority for regulating any kind of be­haviour, i. e., they claim materially unlimited competence,^[49] is a good argument in favor of the thesis that (from the point of view of a legal system as a whole) there is no indifferent behaviour. Here, one could say that — because of the materially unlimited competence legal systems as such claim — whatever is not prohibited is permitted, that is, legally regulated.

Now, regardless of whether or not one considers it a legally indifferent action, it would not make much sense if, for instance, the board of the Univer­sity of Alicante would issue a norm permitting professors to choose the colour of their trousers.

If one assumes, as we think one should, that a norm must in some sense guide the conduct of its addressees, that would mean that a permissive norm can only perform that function — i. e., will not be superfluous — if it is issued in a context in which there is one of the circumstances earlier mentioned in 2), which we have called C₂, or else a new circumstance C₃, consisting in the fact that the corresponding legal system S had until now regulated conduct p through a mandatory norm, that is, had stipulated that the behaviour in question was either obligatory or prohibited.

The issuing of a permissive norm in system S — say, at time t₂ — chan­ges things as compared to that same system at time t_}, in one of the following two senses:

7) If at time t₁ circumstances C₂ held, then the change consists in clarify­ing, or determining, the normative status of p; since there was no norm expli­citly saying that p was a facultative behaviour, by clarifying the situation — and by prohibiting that lower-ranking authorities introduce prohibitive norms with respect to p — the new norm gives security to the addressees and, in that sense, perfectly well contributes to guiding their behaviour: the fact that they now know with certainty that a certain behaviour is facultative — that is, free of normative restrictions — undoubtedly will lead many of them to do (or to stop doing) what they would otherwise not do (or not stop doing).

2) If at time t₃ circumstance C₃ held, then the issuing of a permissive norm at t₂ changes things in the sense that the deontic status of p is modified: from being obligatory or prohibited, it changes to being facultative.

The answer to the second question we posed at the beginning is that the 'relevance' of permissive norms — or sentences — apparently can be explained completely in terms of the negation or derogation of, or the exception from, mandatory norms (or in terms of indirect formulations of such norms), and, possibly, of definitions.

Imagine two situations corresponding to C₂. The first is the following: at t₃, in the system there is a norm prohibiting indecent behaviour at the beach; the question is whether this includes women going topless. The issuing, in t₂, of a norm saying that 'It is permitted for women to be topless on the beach' is pragmatically equivalent to the issuing of a (partial) definition of 'indecent be­haviour' in the sense that 'Being topless is not considered indecent behaviour'. The second situation corresponding to C₂ would be as follows: in there is no norm referring to the clothes to be worn on the beach, but there is rumour that some local authorities intend to hinder, prohibit and/or sanction women being topless. If Parliament then issues a norm saying that 'It is permitted for women to go topless on the beach', that would be pragmatically equivalent to the issu­ing of a prohibitive norm addressed to the local authorities (and, in general, to all authorities of a lower rank than Parliament) in the sense that 'It is prohibited to hinder, prohibit and/or sanction going topless'.

Now, let us look at a situation of the kind of C₃. At t₃, the system con­tains a norm prohibiting to take horses out of the province they come from. Ob­viously, the issuing of a permissive norm — 'It is permitted to take a horse out of the province it comes from' — is pragmatically equivalent to the issuing of a derogating provision — 'The norm that prohibited to take a horse out of the province it comes from is derogated'. Similarly, the issuing at t₂ of a norm in the sense that 'It is permitted to take a horse from one province of Andalucia to another' would be pragmatically equivalent to the issuing of a provision ex­cluding the provinces of Andalucia from the prohibition established at t₇.