2.2. Second exclusion: Power-conferring rules cannot adequately be under­stood in terms of definitions, conceptual rules, or qualifying dispositions

In several publications after Normative Systems, Carlos Alchourron and Eu­genio Bulygin have defended the view that power-conferring rules are defini­tions or conceptual rules. And Rafael Hernandez Marin understands them to be part of what he calls 'qualifying dispositions'.

"In the law, there are dispositions of two different kinds: norms in the strict sense, i. e., norms of obligation (or prohibition), and qualifying norms. Perhaps there are also other types of disposi­tions, but here we will only consider norms and qualifying dispositions." (Hemdndez Mann 1984, 29)

"Qualifying dispositions are sentences attributing a property to, or including in a certain class, all entities with a certain property or belonging to a certain class." (Ibid., 30 f.)

Examples of such qualifying dispositions are dispositions about the ways in which property can be acquired, i. e., "dispositions qualifying the buyer, the heir, etc., of a thing as the owner of that thing"; "the disposition by which someone is appointed minister (mailman, professor, etc.) [which] qualifies as a minister (mailman, professor, etc.) all entities equal to that someone"; "disposi­tions by which it is defined what an official document is [which] qualify certain objects as official documents" (ibid., 31).

"Dispositions 'conceding private powers' (H. L. A. Hart) also are qualifying dispositions since they qualify as a will, a marriage, a sale, etc., acts performed by persons who satisfy certain re­quirements." (Ibid., 31)

"Norms of competence are qualifying dispositions. [...] Because, in fact, a norm or legal disposi­tion of competence is a legal disposition qualifying as legal, or as belonging to the law, all sen­tences with a certain property: that they come from organ O, are in accordance with procedure P and on subject S. Hence, what a norm of competence qualifies are sentences or dispositions; and the qualification given by a legal norm of competence to the dispositions it refers to is that of be­ing valid, or legal, or of belonging to the law. I must confess that I do not know of any other ac­ceptable meaning of legal validity than that of belonging to the law, and in that sense, the ex­pressions 'validity' and 'valid' are superfluous." (Ibid., 38 and 40)

"Most important are the consequences of that interpretation of norms of competence. One of them [...] is that norms of competence cannot be violated. And for that same reason, they also cannot be obeyed, they cannot be effective. As a consequence, since the application of the law is a 'form' of obeying the law or of legal norms being effective, norms of competence cannot be applied. Hence, it is not true that when a legal norm is created another legal norm — a legal norm of com­petence — is applied." (Ibid., 42; the same theses can be found in a more succinct form in Hemdndez Mann 1989, 160 ff.)

Let us now compare this with some passages from Alchourron and Bulygin:

"Definitions serve to identify the norms that contain the defined terms, and this is the only function of definitions." (Alchourron/Bulygin 1991a, 449)

"While in a norm certain words are used for referring to certain conducts in order to regulate or permit them, that is, to declare them obligatory, prohibited, or permitted, in a definition certain words are used in order to indicate the sense of other words that are mentioned, but not used." (Ibid., 455)

"Against those authors who, in order to preserve the idea that all legal norms are of the same kind (norms of obligation), assimilate nullity to a sanction, Hart argues that these are two completely different notions.

"The existence of these two kinds of institutions, sanctions and nullity, is a sign that there exist in the law (at least) two kinds of rules: norms of conduct and conceptual rules, or, in Searle's termi­nology, regulative and constitutive rules. [...] I think that the distinction between conceptual rules and rules of conduct or — what amounts to the same — between constitutive and regulative rules offers an interesting conceptual tool for an explication of the obscure concept of legal power (rechtliches Konnen). Its explication in terms of permission is rather problematic [...] It seems more promising to try to explain it in terms of conceptual or constitutive rules.

In our view, the characterization of power-conferring rules in terms of con­ceptual rules, definitions or qualifying dispositions does have advantages over their characterization in deontic terms. For the latter, the irregular exercise of normative powers was the crucial test that determined its failure. This is not the case with the position we are considering now. As the last quote from Bulygin shows, this conception is perfectly able to account for the fact that the domain of what a subject X can do, in the sense of having the normative power to do it, may not coincide with the domain of what that same subject can do, in the sense of being permitted to do it.

The problems with this position rather seem to be that it puts into one and the same category — that of definitions, conceptual or constitutive rules, or qualifying dispositions — legal provisions sufficiently different in relevant aspects as to require the elaboration of separate categories.^[17] Consider, e. g., the following two examples (both would be conceptual rules, definitions or consti­tutive rules according to Alchourron/Bulygin, or qualifying dispositions ac­cording to Hernandez Marin):

1) "To the effects of the present law, 'rural estates' will be understood to mean estates with the following characteristics..."

2) "In order validly to lay down a will, the presence of two witnesses is required."

Apparently, the function of provision 1) is exclusively that of identifying the norms expressed by the norm-formulations which in the corresponding law use the term 'rural estate', while provision 2), besides the function of stipulating a necessary condition for certain expressions of will to be identifiable as 'a will', also has the function of indicating what (or part of what) someone who wishes to generate, through his or her action, all the normative consequences other norms link to the valid giving of a will, must do. That means that with the use of provision 1) all one can do is identify the norms contained in the respective law, while with the use of provision 2), one can do more than just identify a will, namely, one can make a will.