3.4. Power-conferring rules, non-normative powers, and interests

In order to examine in what way power-conferring rules are connected with power in the social sense and with interests, we will start from the concept of (social) power formulated in ch.

The power conferred by the legal rules we are focusing on, thus, is a kind of social power, which means that those norms, if used successfully, enable some agent to affect another's, or his own, interests. That is the case with the exercise of legislative power, the power of regiementation, judicial power, etc. Through the use of power-conferring rules, regulative norms can be promulga­ted or derogated, rights and obligations can be ascribed to certain people, etc. But what must be emphasized is that a regulative norm directly affects the interests of an individual or group (for example, the norm prohibiting homicide secures our interest of not being killed and sets limits to what others may do in order to pursue their interests), whereas a rule conferring a power (for example, that of getting married) gives its addressee the capacity to interfere in the inter­ests of others, as well as his own; hence, the connexion with interests in the first case is a direct one (the mechanism of regulation operates every time a certain state of affairs — the norm's conditions of application — obtains), whereas in the second case, it is indirect (the mechanism of regulation only operates when, in addition to the respective state of affairs obtaining, the power-holder acts in some way).

3.4.1. Like regulative norms (and power-conferring rules), definitions — legis­lative definitions — are the result of the exercise of a normative power; but seen by themselves, definitions are connected neither with power nor with people's interests in general; they simply allow one to identify (genuine) norms or to clarify in what way they do it. What affects people's interests is not that 'major prison term' is understood to mean a term between 20 years and one day and 30 years, but the existence of norms punishing certain acts with a major prison term. Similarly, the mere definition of 'being of age' as being at least 18 years old does not affect in the least bit the powers people may have; what is relevant in this case is that when turning 18, a person undergoes the normative change of coming 'of age', that is, she becomes the subject of rules conferring on her the power to manage her own possessions, to make contracts, to vote and be eligible for public office, and so on. In fact, with respect to definitions (and speaking of people in general), the element of power is found either before (in the rule conferring the power to stipulate them) or after (in the regulative rules that stipulate the criteria for how to interpret legal sentences, including definitions), or in the (regulative, power-conferring or purely constitutive) norms whose meaning definitions help to uncover or stipulate themselves.

Nevertheless, definitions as such do affect the conformation of the re­spective power of law-creating organs, on the one hand, and of those who in­terpret and apply the law, on the other, because by precisely establishing the meaning of the terms used in legislative language, definitions fulfil the function of reducing the 'semantic power' of judges and legal doctrine. As Mario Jori has written, "the modem dispute about legislative definitions certainly leads to a political struggle over how much power the legislator has, or ought to have, over the words of the law, and therefore, over the limits of his control of the law [...] Semiotic choices, the choices about whether, who and how to define legislative terms, in the last instance, imply ethical-political evaluations" (Jori 1995,143 f.).^[36]

3.4.2. The distinction between private power and public power can obviously be drawn according to a number of different criteria (for example, according to who exercises power, how it is exercised, for what ends, etc.).

3.4.3. The distinction (among regulative norms) between permissive norms and mandatory norms (i. e., those stipulating duties and prohibitions) is of special interest here since, as we have pointed out at the beginning of the chapter, several authors have seen power-conferring rules as permissions. In our opin­ion, the distinction between these two types of (regulative) norms and power­conferring norms can be drawn as follows: Mandatory norms, by stipulating duties or prohibitions, impose restrictions on their addressees' ways of pursuing their — individual or collective — interests, that is, they directly constrain the physical, economic, etc. power of their addressees; permissive norms, in con­trast, impose prohibitions of interference on others: they thus guarantee that every agent can pursue his — individual or collective — interests without inter­ference from others; and power-conferring rules enable agents, within certain limits, to modify their own or others' normative position and thus influence his own or others' interests.

One could then think that the first two (those directly or indirectly stipu­lating prohibitions and obligations) imply a restriction for the persecution of interests (for those subjects that ought to perform the obligatory action, or ab­stain from the actions that are prohibited), whereas power-conferring rules have the opposite function, that is, in some way they help their addressees pursue their interests. But that idea is actually wrong. The rule conferring on parents legal power over their children obviously does not have the function of helping parents pursue their own interests, but those of their children. And something similar can be said of the power of judges to sentence, of parliament to legis­late, or of the administration to issue regulations. This confusion, as we already said, probably has to do with the ambiguity of the expression 'can', which can mean either 'permission' or 'capacity' to obtain certain results in the natural or in the normative world. The 'can' that appears in a permissive norm is that of doing, or not doing, certain actions without being hindered by others; the op­posite to this sense of 'can' would be that the action in question is obligatory or that it is prohibited. This is why, in contrast to mandatory norms, the addressee of a permissive norm cannot fail to comply with it. On the other hand, the 'can' of a power-conferring rule is that of attaining certain normative results by per­forming a certain action, under certain circumstances, which may in turn be permitted, obligatory, or prohibited; the opposite to 'can' in this second sense is to be incompetent, that is, not to have the capacity to bring about a certain normative result. Finally, it is also impossible not to comply with a power­conferring rule, but not for the same reason as with permissions, but simply because they are not deontic norms: the only thing one can do with a power­conferring rule is to use it successfully, or not to use it.