1.1. The pragmatic irrelevance of permissive norms. The category of 'per­missive norms' is unnecessary. Echave-Urquijo-Guibourg (1980) and Ross (1968)

In order to clarify these questions, we will start with two significant examples of what can be called the negative answer: those given by Delia Echave, Maria Eugenia Urquijo and Ricardo Guibourg, on the one hand, and by Alf Ross, on the other.

"Suppose among the charrua there was a group that lived from hunting and fishing and was not subject to norms or authorities of any kind. One day, they realized that other tribes attained their goals to a higher degree because of the organisation they had given themselves, and they decided to elect a leader to command them. The election fell on Toro Sentado who, in contrast to his red­skin namesake [= Sitting Bull], was a peaceful Indian with little desire to interfere in the lives of other people. Thus, Toro Sentado assembled the tribe and issued his first norm: 'As of today', he said, 'it will be permitted to hunt on Tuesdays and Thursdays'. Han-Kel, an Indian with the innate talents of a shyster, tried an interpretation a contrario: 'Does this mean that we may not hunt on the other days?' 'Of course not', the benevolent leader hurried to clarify, '1 permit hunting on Tuesdays and Thursdays, but I'm not saying anything about the rest of the week.' Janquel was perplexed, but Onin, a tribesman with a predilection for ethical reflection, insisted: 'Does this per­haps imply a promise not to prohibit hunting on Tuesdays and Thursdays in the future?' 'No, it doesn't', Toro Sentado replied, '1 don't like to impose prohibitions on my tribe, but I do not want to exclude the possibility that I may change my mind. What ruler doesn't?' The Indians looked at each other and began to disperse in silence. They could not help feeling that the election of their leader had been, at least until this moment, totally useless.

This little narrative very well shows the problem of the pragmatic irrelevance of permissive norms. A norm of obligation constitutes a reason for performing the action mentioned in it; a prohibitive norm constitutes a reason for forbear­ing that action. A permissive norm, in contrast, constitutes no reason at all, nei­ther for performing the action nor for forbearing it. It also cannot function as a criterion for evaluating actions, since — for logical reasons — it is impossible to act in a way that is not in accordance with a permissive norm. So what dif­ference is there between a situation where there is a norm that permits some­thing and a situation in which there simply is no norm at all?

Still, there is a widely shared intuition that it is not the same to be per­mitted to do something in a certain case as not to have any norm referring to the case at all. Maybe the reason for this intuitive impression is that permissive sentences only appear to be irrelevant, that they only appear to leave the world as it was before. Actually, when a permission is given, maybe something other than what is explicitly said is done. That is the position of Alf Ross:

"Telling me what I am permitted to do provides no guide to conduct unless the permission is taken as an exception to a norm of obligation (which may be the general maxim that what is not permitted is prohibited). Norms of permission have the normative function only of indicating, within some system, what are the exceptions from the norms of obligation of the system." (Ross 1968,120)

"I have never heard of any law's being passed with the purpose of declaring a new form of be­haviour (e. g., listening to the wireless) permitted.

And about von Wright's idea — to which we shall return presently — of under­standing the "constitutional guarantee of certain freedoms" of the citizen as promises of non-interference by the legislator, he says:

"The idea of a promise made by a legislator to the citizen, creating a moral obligation which binds the legislator, is a figment of the imagination and has long since been abandoned in legal theory. The constitutional guarantee of certain freedoms has nothing to do with promises, but is a restriction of the power of the legislator, a disability which corresponds to an immunity on the part of the citizen. The legislator does not promise not to use a power which he possesses, but, rather, his power (or competence) is defined in such a way that he cannot legally interfere with the liberties guaranteed. Any legislative act to this effect would be unconstitutional and therefore null and void." (Ross 1968,123 f.)

At least in two respects, this conception deserves a more detailed examination. The first is that even if it would be acceptable to understand the constitutional guarantee of certain freedoms as defining spheres of legislative 'disability' or incompetence, this could apply only to rigid constitutions, but not to the provi­sions of flexible constitutions. The second is that — for reasons we have al­ready explained in ch. II and to which we return here — to understand consti­tutional guarantees as spheres of legislative incompetence is clearly uncon­vincing. We will look at both questions in turn.

Let's begin with the case of flexible constitutions, meaning that accord­ing to their own terms "they may be modified by the ordinary legislative organ through the ordinary procedures of law-giving" (Guastini 1993, 72).

So the applicability of the idea that constitutional guarantees of certain freedoms are equivalent to spheres of legislative incompetence seems to be limited to those cases where the constituent authority is different from, and placed above, the ordinary legislative authority, i. e., to rigid constitutions. But even here, the idea is unconvincing, for the following reason: that a norm is legally 'null' can mean two radically different things. It can mean, in the first place, that that norm is not recognized as such by the legal order, i. e., that from the perspective of that order it simply does not exist as a norm; and it can mean, secondly, that the legal order recognizes it as a norm, but imposes on some organ the duty to nullify it. We can think, for instance, of a 'law' with a perfectly constitutional content, but issued by a private individual. That 'law' is 'unconstitutional' or 'null' in the sense that it is not recognized by the legal order as a 'law'; from the perspective of the legal order, that 'law' simply does not exist. Or think of a statute approved by the constitutionally required parlia­mentary majority, but whose content conflicts with constitutional norms, e. g., because it does not respect permissions given to the citizens by the constitution. Here, the situation is totally different: that statute is recognized by the legal order as a statute, although, if an authorized organ challenges its constitutional­ity before the constitutional court, that court has the duty to nullify the statute — where that annulment obviously implies a reproach for the legislator.

Although it is a correction of Ross, this conclusion supports his central thesis, namely, that there are no purely permissive norms, that permission is not an independent modality, but only the exception to (or the derogation of) man­datory norms (of obligation or of prohibition) or the indirect formulation (ad­dressed to subjects other than their explicit addressees, i. e., to lower norm au­thorities) of mandatory norms (of obligation or prohibition).