Problems with our conception

4.1. Mendon^a/Moreso/Navarro correctly qualify the characterization of power-conferring rules as "anankastic-constitutive rules that can be used as technical-institutional rules" as "a point of crucial importance" of our conception.

But to that they reply 1) that the corresponding technical rule does not belong to the legal system since it does not satisfy any criterion of membership, and that our assertion that the power-conferring rule gives way to a technical rule is an assertion about the use of legal rules by individuals and authorities, and 2) that, if this is so, then "there are no differences between norms of competence and other legal provisions, since any of them can give way to the elaboration of a technical rule". As for point 1), they are certainly right, and that is precisely as we presented things in our text: just as an anankastic proposition is the basis for a natural technical rule for anyone wishing to induce some natural change, a power-conferring rule — an anankastic-constitutive rule — is the basis for a technical rule for anyone wishing to induce some normative change. As for point 2), we think that the answer to their assertion that any legal rule can give way to the elaboration of a technical rule is already contained explicitly in our text, where we examine the case, introduced by Mac- Cormick, of that fictional character who, knowing that a certain conduct constitutes a crime and wanting to commit a crime because he wants to be sentenced and make himself comfortable in prison for a while, he performs that action. That person (a somewhat peculiar kind of Holmesian bad man) extracts technical rules from regulative norms, as does generally that species of the more common bad man whose sole purpose it is to make sure that the law favors (or does the least possible harm to) his interests.

To that, two things can be replied, as we did in our text: 1) that the distinction between regulative norms and power-conferring rules can only be drawn if one takes into account the purpose generally attributed to the provision in question. Committing a crime also (among other things) produces a normative change in the situation of the perpetrator. But committing a crime cannot be seen as an instance of the use of a power-conferring rule, because in general it is understood that criminal norms are not issued with the purpose of enabling people to change their normative situation, but with that of deterring them from performing certain types of actions; 2) that while from the perspective of a bad man one may think that any legal norm offers the basis of a technical rule, from the perspective of a good man the existence of a regulative mandatory norm implies the existence of a categorical — i. e., a genuinely normative — duty, whereas the existence of a power-conferring rule implies the existence of a mere hypothetical, i. e., a technical duty.

4.2. Mendonga/Moreso/Navarro criticize that we use argument patterns (E_t and E₂)^[42] without first explaining in what sense they can be said to be valid. In particular, they say that E₂ is invalid, for which — if we have correctly understood their critique — they give three reasons. The first reason has two parts: on the one hand, in premise a), the connection between Y and R should be that of a necessary, not a sufficient condition; on the other, an additional premise b'): 'State of affairs X is produced' should be added in order to reach conclusion c): 'Z should do Y. Our critics think that this error, or carelessness, on our part is due to our "conception of norms of competence: For them [= for us], those norms state 'the sufficient (or necessary and sufficient) conditions for attaining the result, and [...] a norm merely containing some of the necessary conditions [is] only an incomplete norm'".

The second one of their reasons seems to be derived from our assertion that "in E₂), regulative norms are also involved, but the argument is valid irrespective of our attitude towards those norms". To this they object that "it is important to note that premises a) and b) of pattern E₂) make no reference to prescriptive (regulative) norms and — pace A-RM — do not imply (nor are implied by) prescriptions". Finally, the third, and weightiest, reason is expressed as follows: "A-RM's mistake probably comes from their not distinguishing the possible logical relations between a set of sentences and the attitudes of individuals with respect to those sentences. The acceptance of a norm is a fact. The premises and conclusions of an inference are propositional entities. The properties of that set (that is, whether they are true or false, accepted or rejected, credible or improbable, etc.) should not be confused with the properties of the inference."

With respect to the first critical observation, it is true that the connection between T and /? cannot be that of a sufficient condition; that was a mistake we corrected ourselves in the Spanish version — as Mendonga/Moreso/Navarro acknowledge in their paper —, so we have nothing to add to that. It is also correct that premise b') must be added in order to complete the argument; but that is an observation that does not seem to be important: in our pattern, that premise was simply contained implicitly, so that is no reason to question the argument's validity. But nothing of this affects our conception of power-conferring rules. Premise a) of pattern E₂) is a technical rule arising from the use of an anankastic-constitutive rule (the rule conferring the corresponding power). And that last one, in fact, is complete only if it determines the sufficient, or necessary and sufficient, conditions for obtaining the institutional result. But an agent may well argue from an incomplete power-conferring rule (stating only necessary conditions for the result) and still do this in a valid way.

The second of their objections seems to be only a misunderstanding. When we wrote that "in E₂), regulative norms are also involved", what we wanted to say — and what we think we did say — was that course of action Y and result R can also be subjected to regulative norms that qualify them deon- tically (as a whole or in some of their elements), but not, as our critics seem to have understood, that they imply or are implied (in the logical sense) by regulative norms. Actually, we did not use the word 'implication' in the sense of 'logical implication' (and only an essentialist would say that there is no other implication than logical implication, and that we would commit a conceptual — and not only an empirical — mistake if we would say, e. g., that our critics are implied in a crime, say, of defiling graves).

Finally, with respect to their third observation, the mistake our critics make here is probably due to the fact that they link our pattern E₂) to von Wright's 'practical syllogism' which, as they themselves indicate, stipulates that "if an individual considers an action M necessary for an end F and wishes to attain F, then she is compelled to do M". Now, the conclusion of our argument pattern is not a fact, i. e., does not consist in the fact of accepting a norm, but an ought sentence, even though a non-deontic one — as we explained in the text — since the 'should' of 'Z should do K has only a technical meaning. Besides, we too think that the reasoning done by an agent is one thing, and quite another whether, in fact, he feels compelled to do Y. It is also clear, however, that being different things does not mean that they have nothing to do with each other. But that is another matter.

4.3. In our paper we sustained the thesis that legal definitions are not reasons for action of any kind, but merely help to identify norms, which are the only reasons for action the law provides. Mendonga/Moreso/Navarro propose the thesis that definitions can also be auxiliary reasons.

They illustrate this with the following example:

a) By 'rural estates', we will understand estates located more than 50 km away from an urban center.

b) X wishes to acquire a rural estate.

c) Z is the only estate located more than 50 km away from an urban center.

d) X should acquire Z.

Now, if 'estate located more than 50 km away from an urban center' is a definition of 'rural estate', then by the definition of 'definition', premise b) says precisely that 'X wishes to acquire an estate located more than 50 km away from an urban center'. That means that a) only identifies the meaning of b), which is the premise expressing the operative reason in this argument. And this argument has no other auxiliary reason than the one expressed in c), because only this premise fulfils the specific function of premises expressing auxiliary reasons and which — as Joseph Raz asserts — "is to justify, as it were, the transfer of the practical attitude from the statement of the operative reason to the conclusion" (1990, 33); a) neither does nor could fulfil this function; only the defining premise, that is, the one stating the meaning in which the terms contained in the other premises are used, can do this.

4.4. At the end of their paper, Mendonga/Moreso/Navarro ask three questions:

”i) The ontological question: Is the competence of a norm-authority NA necessary or sufficient for the existence of a norm N?"

”ii) The systematic question: Is the competence of NA necessary or sufficient for a norm N to belong to a legal system LS?"

”iii) The semantic question: Is the competence of NA necessary or sufficient for qualifying a norm N as a 'law', a 'judicial decision', etc.?"

As for the ontological question, the competence of an authority obviously is not a necessary condition for the existence of norms: there are norms — ultimate norms, customary norms, norms derived logically from other norms — that are not the result of an act of exercising a competence.

In the case of norms that exist because they are the result of acts of prescription, however, the competence of the issuing authority is a necessary (and, together with the fact that the state of affairs mentioned in the antecedent of the power-conferring rule obtains and the corresponding action is performed, also a sufficient) condition for their existence.

As for the systematic question, if, following Alchourron/Bulygin and Caracciolo (cf. Alchourron/Bulygin 1991 and Caracciolo 1988 and 1991), by 'belonging' we understand either 'direct belonging to the system', in the case of original norms, or 'satisfaction of the criteria of deductibility or legality and non-derogation', in the case of all others, then the fact that a norm has been prescribed by a competent authority is not a necessary condition for belonging, nor is its conjunction with the other conditions mentioned in the antecedent of the power-conferring rule a sufficient condition, because irregular norms satisfy neither the criterion of legality nor that of deductibility.

As for the semantic question, if it is restricted to norms like 'laws' or 'judicial decisions' — that is, norms existing as the result of normative acts — then the competence of the norm-authority, together with the other conditions mentioned in the antecedent of the power-conferring rule, are a necessary and sufficient condition for being able to speak of a 'law', a 'judicial decision', etc.

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

Problems with our conception

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