Three approaches and some ontological assumptions

Let us now move to the constructive part. On the basis of a pattern that parallels the one used in the previous chapter with respect to mandatory norms, in what follows we will try to clarify from three different angles what power-conferring rules are.

From the first one — which can be called the structural point of view — we will try to see what elements a power-conferring rule consists of and how they interrelate, and how such rules differ, in that respect, from deontic (or regulative) norms and from definitions; from the second perspective — which may be called the functional or justificatory one — we will consider the different roles power-conferring rules have, compared with regulative rules or definitions, in practical-legal reasoning; and finally — from a perspective which we can call the social one — we will formulate some observations about how power-conferring rules are related to power in the non-normative sense and to interests.

Before we present our view of the structure of power-conferring rules and the way in which they come into play in practical reasoning, we think it is necessary to explicate some ontological assumptions which are at the foundation of our answer to those questions. They are very simple — although probably not exactly obvious — and consist in distinguishing between facts and actions which, in turn, can be generic or individual, on the one hand, and natural or institutional, on the other. For example, to turn 18 years old is a generic fact; the fact that X turns 18 today (on June 30, 1993) is an individual fact. To commit murder is a generic action; the murder committed by ETA last week in Madrid is an individual action. It must be emphasized that the qualification of — generic or individual — facts and actions takes place on the level of language; thus, for example, one and the same body movements can be presented as different facts or actions: as shooting, killing, committing murder, etc. The distinction between natural (non-institutional) facts or actions and institutional facts or actions operates on this level.

By natural (non-institutional) facts or actions we understand those stated independently of rules belonging to some institution (for our purposes, to some positive law).^[18] For example, to turn 18 is a natural fact since we can say that a persons turns 18 today independently of what the rules of some positive law may or may not stipulate. In contrast, to come 'of age' is an institutional fact since when we say that someone is of age we are — at least in part — using a rule (in a sense that also includes sentences like definitions) of some positive law. Similarly, to kill someone is a natural action, whereas to commit murder (in the sense of art. 405 of the Spanish Criminal Code) is an institutional action. Note that our distinction between the natural (or non-institutional) and the institutional commits us to very little; particularly, since it operates on the linguistic level, it is immune to criticisms like Joseph Raz's against Searle's theory of constitutive rules^[19] ^{^[20], and the distinction thus drawn also does not mean to assert or to deny that there is something like brute facts or actions, if by this we understand facts or actions that can be stated independently of any interpretational scheme whatsoever. A state of affairs is a set of natural and/or institutional facts which, in turn, may or may not be the result of natural or institutional actions. For example, to be of age and married is a set of two institutional facts the second of which, in turn, is the result of an institutional action.
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Source: Atienza Manuel, Manero Juan Ruiz. A Theory of Legal Sentences. Springer Netherlands,1998. — 205 p.. 1998

Three approaches and some ontological assumptions

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