A structural approach

3.2.1. If we suppose — as we think is correct — that all general legal norms follow a conditional pattern in which one can therefore distinguish an antecedent and a consequent, then we can say that the antecedent of a general norm always refers to more or less complex states of affairs.

As for the norms we have called deontic or regulative, their antecedent consists in a state of affairs that may or may not contain institutional facts (that is, regulative norms can regulate natural or institutional states of affairs), and their consequent is formed by a natural or institutional action or state of affairs and a deontic operator. Their canonical form is as follows: 'If state of affairs X obtains, then action Y ought to be done by (is obligatory, prohibited, or permitted for) Z or 'If state of affairs X obtains, then it is obligatory, prohibited, or permitted for Z to attain (or try to attain) end (state of affairs) F.' For example, 'it is prohibited to kill another person' (which presupposes the existence of a certain state of affairs, namely, that the other person is alive, that there is an opportunity to kill her, etc.) or 'a person that has committed manslaughter (the state of affairs consisting in having performed the action of taking the life of another person) shall be sentenced by the judge to a minor term in prison'.^[21] In other words, deontic or regulative norms can be primary or secondary norms, that is, their deontic operator can work on a natural or on an institutional action or state of affairs. Now, power-conferring rules have a very different structure. Their antecedent consists of two elements: a state of affairs containing either natural or institutional facts, and an action that can also be either natural or institutional; and their consequent does not consist of an action modalized by a deontic operator (a solution), but of a kind of institutional fact which we will call an institutional or normative result (generally, a result is a change in a state of affairs produced by an action or a fact, and therefore one can speak of normative results — e.

g., 'to have assumed an obligation’ — and of non-normative results — 'to have killed a person', 'to have died'). The canonical form of a power-conferring rule would then be as follows: 'If state of affairs X obtains and Z performs action Y, then institutional result (or normative change) R is produced.'^[22] For instance, persons of age can validly get married, that is, if they perform certain actions (consisting in filling in a number of forms, stating their desire to be married before a judge or another authority, etc.) an institutional result is produced which consists in a modification of their normative status: they acquire certain rights and obligations. Let us now analyze somewhat more closely the differences between the two types of norms.

3.2.2. The first and most obvious one is that, according to what has just been said, regulative norms are (expressed in) deontic sentences, but this is not the case with power-conferring rules: in what we have called their 'canonical form', no deontic operator appears. Someone could say that this neglects a fundamental aspect of those rules. For example, in the case of the rule conferring the power to get married, it is a fundamental fact that getting married is an institutional result that is facultative:^[23] it is just as permitted to bring it about as not to do so. Now, in our opinion, this possible objection can be answered by saying that the rule conferring the power to get married is one thing, and the (regulative) norm stipulating that in state of affairs X (simplifying somewhat: if one is single and of age) getting married is facultative is quite another. The same institutional result is, on the one hand, the consequent of a power-conferring rule — indicating how to bring it about — and, on the other, it also is (modalized by the deontic operator 'facultative') the consequent of a regulative norm. In other words: one thing is to confer a (normative) power and another to regulate (as facultative, obligatory, or prohibited) the exercise of that power.

And it is precisely their being two different things what explains that a judge, the administration or the legislator are successful (that is, that they produce the intended normative result, irrespective of its possible posterior annulation by some organ of control) when they issue a judicial decision contra legem, an illegal regulation, or an unconstitutional law. Of course, one can always say that the norm conferring a power and the regulative norm that deontically modalizes the exercise of that power can be seen as a functional unity, but that does not preclude that they can — and should — be kept apart for analytical purposes, just as we distinguish, for example, between the regulative norm that punishes murder with a major prison term and the definition stipulating how much a major prison term is.

A second objection is that, from the point of view of a bad man (in Holmes' sense) who pursues somewhat strange ends, some rules that look like an unquestionable example of regulative rules to us may appear (or be used) as power-conferring rules. Neil MacCormick (1981, 75) gives the example of a literary character — W. H. Davis' 'Super-Tramp' — who knows that under certain conditions a certain behaviour is a crime, and since he wants to commit a crime in order to incur a sanction and be comfortably installed in prison for a good while, he performs such an action (or, in terms of an institutional action, he commits the crime in question). It would be strange, however, to say that that man has used a rule that confers on him the power to change his own normative situation, by making him liable to a sanction. MacCormick's answer in order to circumvent this difficulty consists in saying that "(p]ower is conferred by a rule when the rule contains a condition which is satisfied only by an act performed with the (actual or imputed) intention of invoking the rule." (ibid., 74). The notion of 'invoking a rule' as it is developed by MacCormick seems somewhat obscure.

Besides, we think that the problem does have a less sophisticated solution. However, it forces us — as is often the case with the key questions of legal theory — to look away from the norms and turn to the purpose generally attributed to each one of them (in our judgment, this is also one of the main lessons to be learned from Hart's work).^[24] ^{^[25] With respect to this, it seems that nobody would hold that the purpose of the norms of criminal law is to enable people to change their normative status by performing the actions corresponding to the institutional qualification of 'crimes', but rather to deter people from performing such actions. Of course, the use of this criterion may leave some cases in the shadow; but far from being particular of this case, that is something that also happens with other distinctions — as the one between a fine and a tax — which apparently can only be drawn by referring to the purpose — whether prohibitive or not — generally attributed to the rule in question (on this last point, cf. Hart 1983b, 295 ff.). 3.2.3. Since this structural characterization of power-conferring rules denies that they are deontic or regulative rules, we must explain precisely in what sense they are still norms or, if you prefer, what kind of norms they are. Our answer is that they are anankastic-constitutive rules that can be used as institutional technical rules.
Natural technical rules are based on anankastic propositions stipulating that, given some state of affairs X (e. g., the existence of water in a vessel), if action Y is performed (if it is heated to 100° C) R will result (the water will boil). From this follows the technical rule that if you want to boil water you must heat it to 100° C. In the example of the rule conferring the power to get married, the constitutive aspect derives from the fact that it is the legislator who
— by issuing the rule — constitutes the (institutional, not natural) state of affairs consisting in getting married.
But apart from this important difference, the legislator's rule also leads to a technical rule which stipulates that, given some state of affairs X, if Z wants to obtain some specific result (bring about a new — institutional — state of affairs, R) she must use the power conferred on her, that is, she must perform action Y. In both cases, one could make a distinction according to whether the antecedent of the conditional is a necessary, a sufficient, or a necessary and sufficient condition of the consequent (the result).¹¹ Thus, we can say that a complete power-conferring rule is one that stipulates the sufficient (or necessary and sufficient) conditions for attaining the result, and that a norm merely containing some of the necessary conditions is only an incomplete norm.
3.2.4. Let us now look at the distinction the structural point of view sees between power-conferring rules and other kinds of legal statements. In our opinion, power-conferring rules should be distinguished not only from definitions but also from what we call purely constitutive rules. We think that in the article by Alchourron and Bulygin (1991a) mentioned above, two parts can be distinguished. In the first part, they characterize definitions as sentences that do not express norms (although they may have normative consequences), but rather allow us to identify norms by elucidating the sense in which certain expressions are used (it should be remembered that for Alchourron and Bulygin — at least in that paper — a norm is the meaning of a sentence, not a sentence itself). The canonical form of a definition (and they make no distinction between legislative and private, or unofficial, definitions) is the following: means...”,
condition for that which it regulates, as, e. g., in the rule that stipulates that a holograph will must be completely handwritten by the testator. As will have been noticed, we use the term 'anan- kastic-constitutive rule' here for referring to power-conferring rules insofar as they stipulate either a necessary, or a sufficient, or a necessary and sufficient condition for some institutional result.
In the case of Azzoni, the rules setting a necessary condition (anankastic-constitutive rules), a sufficient condition (metatetic-constitutive rules), or a necessary and sufficient condition (nomic- constitutive rules) are subspecies of the general type of 'hypothetical-constitutive rules'. They do not, however, exhaust the still more general category of 'constitutive rules', which also includes those rules that are a necessary condition (eidetic-constitutive rules), a sufficient condition (the- tic-constitutive rules), or a necessary and sufficient condition (noetic-constitutive rules) of that which they are rules of. From all these types, one must distinguish hypothetical rules, i. e., rules that presuppose necessary conditions (anankastic rules), sufficient conditions (metatetic rules), or necessary and sufficient conditions (nomic rules) of that which they are rules of. The concept of a 'hypothetical rule', in turn, basically coincides with that of a 'technical rule', although it does not entirely exhaust it.
The fact that the term 'constitutive rule' can have such a plurality of meanings will help the reader understand why we did not adopt as our starting point one of the categories of 'constitutive rules' that can be found in the literature. Riccardo Guastini has studied the different concepts of constitutive rule authors like Searle, Ross and Carcaterra work with and has shown — in our view, convincingly — that the concept of 'constitutive rule' has been ambiguous from its very beginning in the work of Searle (Guastini 1983 and 1990).
As Azzoni has correctly pointed out, the question about what a constitutive rule is "is a wrong question, because it starts from a wrong assumption, namely, that the term 'constitutive rule' is unambiguous" (Azzoni 1988, 2). Later, we will ourselves speak of "purely constitutive rules" in order to refer to rules differing from power-conferring (anankastic-constitutive) rules in that no action must be performed for the institutional results mentioned in them to come about. where stands for the expression to be defined (definiendum), and "..." for the words used to convey its meaning (definiens). For example: '"To be of age' means to be at least 18 years old." In the second part, Alchourron and Bulygin hold that a legal order can be constructed satisfactorily with only two categories of sentences, namely, norms of conduct and definitions or conceptual rules. As we have already seen, this leads them to characterize power-conferring rules as definitions.
Now, while the first thesis seems to be a happy characterization of a definition, we believe that the second one is false. The sentence saying "Heir is the person entitled to inherit an estate as a whole, legatee the person entitled to a partial inheritance" (art. 660 of the Spanish Civil Code) is, in fact, a definition, since it only specifies the sense in which the terms 'heir' and 'legatee' are used. But other sentences Alchourron/Bulygin regard as definitions are, in our view, ambiguous. This is the case, for instance, with the sentence stipulating that one comes of age with one's 18th birthday. It can, of course, be interpreted as a definition: 'of age' means 'being at least 18 years old'. But it can also be understood as a sentence stipulating that the production of a certain state of affairs (having celebrated one's 18th birthday) determines the production of a normative change: that one reaches the normative status of 'being of age'. And this is also true — now without any ambiguity at all — with the sentence "A person's rights of inheritance are transferred at the moment of death" (art. 657 of the Spanish Civil Code). That sentence obviously can only be interpreted as the stipulation of a certain state of affairs (a person's death) as a condition for a certain normative change (the transfer of rights of inheritance). We propose to call such rules — whose canonical form would be 'If state of affairs X obtains, then institutional result (or normative change) R is produced' — purely constitutive rules. And finally, as Josep Aguilo (1990) has clearly shown, sentences like those stipulating the conditions for validly laying down a will, or for issuing a law, do not seem to be restricted to elucidating the meaning in which the legislator uses the terms 'will' or 'law'. The sentence saying that two witnesses are required for a will to be valid does not claim — or does not only, nor mainly, claim — to clarify the sense in which the legislator uses the word 'will', but rather to indicate how someone wishing to attain a certain institutional result must proceed. And something similar could be said about the sentence stipulating the conditions required for issuing a law. If Alchourron/Bulygin were right, that would mean that sentences like these have no other function than that of identifying certain texts as being 'wills', and others as being 'laws'.^[26] But this really sounds very strange, precisely because it does not explain how 'legatees' or 'legislators' use those sentences. We will come back to this in the next paragraph.
In our view, a pragmatically adequate reconstruction of the legal order should distinguish at least between regulative rules^[27] (and here, in turn, between principles and rules), power-conferring rules, purely constitutive rules, and definitions.^[28] The canonical form of definitions is, in fact, the one suggested by Alchourron and Bulygin. But that means — we think — that definitions relate words to words (or, if you prefer, to concepts), not cases (states of affairs) to solutions (deontically modalized actions) or conditions (mere states of affairs, in the case of purely constitutive rules, and states of affairs plus institutional actions, in the case of power-conferring rules) to the production of normative results (new states of affairs).
3.2.5. This also enables us to account for legal sentences like 'Article x of law y is herewith derogated', 'Organ X is herewith established', '1 herewith appoint so- and-so to such-and-such office', etc. Such sentences— in contexts mostly regulated by regulative norms — express the use of power-conferring rules, and in some cases of definitions, and the production of the corresponding institutional result or normative change. In other words, the issuing of such sentences by the addressees of the corresponding power-conferring rules is, in each case, a normative act. These sentences differ from sentences expressing any of the other kinds of norms we have distinguished, because of their performative character: by saying '1 herewith sentence so-and-so to such-and-such punishment', the judge is performing the action of sentencing; by saying 'Article x of law y is herewith derogated', the legislator performs the action of derogation, etc. Note especially that the rules conferring the power to issue norms in a certain area cannot be distinguished from the rules conferring the power to derogate norms in that same area. The derogation of a norm, thus, can be brought about either as the result of an act of derogation (where this means that a so-called particular derogating clause such as in 'Art. X of law Y is herewith derogated' is expressed) or as the result of an act of issuing a new norm which is incompatible with the former, in combination with the application of the criterion of lex posterior. So-called generic derogating clauses (as in 'All provisions contradicting the dispositions of the present law are herewith derogated') are pragmatically empty because they do not have any effect that has not already been produced as a consequence of the fact that the new, incompatible law has been issued.^[29]
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Source: Atienza Manuel, Manero Juan Ruiz. A Theory of Legal Sentences. Springer Netherlands,1998. — 205 p.. 1998

A structural approach

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