Preface

This book is not a general theory of law, but it is intended to be the first part of one. It was written in the larger context of a rather comprehensive project we have been working on for a number of years and which we hope to finish some day.

To our excuse, perhaps we can say that the topics treated here — and the same can be said of those we want to take on in the future — are extremely dif­ficult. Proof of this is the fact that, although an enormous amount of intellectual work, often by very profound and original thinkers, has been spent on them, the basic problems are still far from being solved. Undeniably, in this century — especially since Kelsen — legal theorists have made essential contributions to the elucidation of the basic concepts of law. But it is no less true that this theo­ry of law has been a domain visited only by specialists, and that, at least in countries like ours, it is still largely closed off from communication with acade­mic and practicing lawyers who do not regard it as an adequate instrument for understanding, improving or criticizing the law, legal theory, or legal practice.

In our view, a theory of law intended to overcome this situation of self­absorption and isolation and to contribute to the dynamization of legal culture cannot confine itself to the use of the rich arsenals of analytical theory (whether in its version of a strictly logical analysis of the law or that based on the ana­lysis of ordinary language). Besides, it must also incorporate two other great traditions of thought: a rationalist and objectivist conception of ethics, and a social philosophy that must have come to terms with Marxism.

The most important contributions to legal theory in this century have cer­tainly come from the analytical philosophy of law; but that branch of philoso­phy is mainly a style of investigation, or a set of methodological tools, to be used in the service of ends other than its own development and refinement; that is, it should not be self-referential. Otherwise, when the tools (or means) are converted into ends — which happens rather frequently — there is the danger that the analysis will, at least in part, become an intellectual game blocking the investigation of substantive problems. And what should be kept in mind is the

— in our view — elementary, but often forgotten methodological rule that the aim should not only be to speak with rigour, but to speak, with the greatest pos­sible rigour, about what really is important.

Although, as the reader will see throughout this book, we think that the identification of a norm as a legal norm is basically a question of social or in­stitutional facts, and not one of a moral qualification, we do not think that it is possible, or that it would make sense, to elaborate a theory of law in total disre­gard of ethical theory. In this book, we expressly assume what could be called

— though possibly in a minimal sense — a cognitivist and objectivist concep­tion of ethics. We have various reasons for adopting cognitivism, but here we only want to mention one of them which is internal to the very intellectual task we are trying to carry out: If we would start from the position that moral judgments, in the last instance, are nothing but emotive expressions of approval or disapproval, or mere attempts to influence the behaviour of others, then we could not reconstruct fundamental aspects of our social practices, and espe­cially of the legal practices typical of contemporary constitutional states. Be­sides, a minimally or moderately objectivist conception of ethics keeps, so to speak, an equal distance from both moral relativism and moral absolutism.

Finally, the political and social philosophy underlying our work, while

— of course — not being Marxist, can be seen as the result of having come to terms with Marx — or a certain version of Marxism — which we have tried to lay down in another recent book.^[1] Our contact with, or proximity to, that tradi­tion of thinking has sharpened our awareness of the elements of inequality existing even in the law of contemporary developed societies, and of the ideo­logical character of certain institutions — or aspects thereof — and legal con­cepts; it has also led us to acknowledge the historical character of law as well as of legal categories, and to try to develop a more 'materialistic' or social con­ception of law than that underlying the predominant theory — a conception, that is, which is not based exclusively on the notions of norm, legal relation­ship, subjective law, etc., but which also takes into consideration other — in some sense, prior — notions like those of division of labour, human needs, in­terests, conflict, power, and so on.

Some readers will probably think that this is a 'declaration of principles' or a 'statement of purpose' that goes far beyond what can be found in the 'articles' that follow, i. e., in the six chapters the book consists of, which offer nothing but a theory of legal sentences, in the sense of a kind of taxonomy of the types of sentences^[2] to be found in the law, understood as the language of the legislator. It is, one could say, the law seen as langue, i. e., as a set of rules for the use of legal language, and not as parole, i.

Legal sentences are, in our view, the most elementary units of law; but those pieces acquire full meaning only when their contribution to the shape and functioning of the law is well understood. They are not simply pieces of a puzzle, but of such a dynamic and tremendously complex reality as is the law of contemporary societies. A complete understanding of legal sentences, there­fore, can be reached only in the context of a fully developed theory of law; thus, it will be a final result of that theory rather than a step in the construction.

Besides, although our analysis is confined to the level of legislative lan­guage, of the language of laws, we think that, in some sense, our results can be seen as a general theory of legal sentences: non-legislative sentences (where, obviously, the expression 'legislative' is used in its widest sense) either have no special characteristics that would justify a specifically legal analysis (this is the case of the descriptive and explicatory sentences mentioned above), or they can be seen as particular instances of legislative language, of the langue (a sen­tence, for example, would be a mandatory rule, but a particular, specific one, and also the result of the use of a power-conferring rule), or they could be ana­lyzed as combinations of the types of sentences discussed here.

The typology of legal sentences we present starts with the distinction, within the class of mandatory norms, between rules and principles; rules as well as principles can, in turn, be either action norms or norms stipulating ends to be attained: all this will be treated in Chapter I. But legal orders also contain other kinds of sentences — power-conferring rules — which make it possible to introduce, modify, or derogate mandatory norms and, in general, to bring about normative changes. We propose to understand such sentences as anan- kastic constitutive norms. In their immediate neighbourhood, we find purely constitutive norms, more at a distance — since they are not norms — defini­tions.

The process of grinding out this book has been arduous and has stretched over a long period of time. Preliminary, but not substantially different versions of the first two chapters were published as articles: a first version of ch. I in Doxa 10 (1991), a second version in Analisi e diritto (1993), and a first verison of ch. II also in Analisi e Diritto (1994). They have been criticized in the same journals by Luis Prieto and Aleksander Peczenik (Doxa 12 [1992]) and by Ricardo Ca­racciolo, Daniel Mendonca, Jose Juan Moreso and Pablo Navarro (Analisi e di­ritto [1995]). A first version of ch. Ill appeared in Doxa 15-16 (1994), of ch. V in the Revista Espanola de Derecho Constitutional 47 (1996). As readers will see, those critiques have not moved us to change the basic aspects of our con­ception; but they have helped us to fine-tune our analysis in several aspects, for which we are deeply grateful to all of them. We are also very much indebted to Francisco Laporta who over the past years has communicated to us numerous sharp observations that enabled us to improve our analysis in more than one point. Although Laporta is explicitly mentioned only in the Appendix to Chap­ter III, his presence is latent in many parts of the book. Our greatest debt is, of course, with our colleagues and friends from the seminar on legal philosophy at the University of Alicante (Josep Aguilo, Juan Antonio Perez Lledd, Daniel Gonzalez Lagier, Angeles Rodenas, Isabel Lifante, Pablo Larranaga, Victoria Roca and Juan Antonio Cruz) with whom we have extensively discussed each chapter, in many, sometimes heated, sessions. Our very special thanks go to Daniel Gonzalez Lagier whose profound knowledge of the work of G. H. von Wright — one of our main interlocutors in this book — has been of invaluable help, and to Josep Aguilo who, if not a co-author, must be considered at least a necessary accomplice of this work. The — constructively critical — contribu­tion of them all has been so large that to dedicate the book to them seems to us the most natural way of expressing our gratitude.