4. Types of norms and types of values

As will have been noticed, we are not attempting to construct a legal axiology or a theory of justice, i. e., a theory that would offer a basis for the critique of positive law, depending on whether or not it implements certain values.

We are also not directly interested in accounting for judgments of recognition of an authority, such as the one used in premise 7) of the argument which, a few pages above, we used in the discussion of Nino’s thesis.^[64] Rather, what we are interested in is a theory of legal sentences; thus, our approach to values is, so to speak, internal to legal sentences: the value judgments we are interested in are those that, more or less explicitly, constitute not the directive, but the evaluative dimension we believe legal norms do entail. For this, we think that we do not need to start from a general theory of values, although we must, first of all, reach a minimum of conceptual precision.

It is probably true that anything, any entity, can be subject to evaluation (Rescher 1969, 56 f.); but here we are interested exclusively in two objects of evaluation: actions and states of affairs. The reason for this is that they are the ingredients we need to account for normative sentences (besides, of course, deontic operators). Some states of affairs can be seen as (conceptually or causally) connected with actions. In the first case — when the connexion is conceptual or intrinsic — we will say that the state of affairs is the result of the action. In the second case — when the connexion is causal — we will call the state of affairs a consequence of the action (or actions) (cf. von Wright 1963, 39). For example, if X and Y satisfy certain characteristics (e. g., if they have a certain age) and perform certain activities which, according to the legal order, constitute the act of getting married, then this produces the normative result of making them married persons; the consequences can be that the two gain in emotional stability, that %'s relationship with Ps mother improves, etc.

Value judgments attribute positive, negative, or indifferent value to the evaluated objects. To attribute positive value to an object (an action or state of affairs) means to assert that there is a reason for considering it justified to perform action A or to bring about state of affairs S. To attribute negative value to an object means that there is a reason for considering it unjustified to perform A or to bring about S. Finally, A and S are indifferent if there is no reason for considering the performance of A or the bringing about of S justified or unjustified.

The values incorporated in legal sentences can be regarded as the expression of value judgments, made by those who utter the sentences (the legal authorities), on certain actions and states of affairs. This does not mean that we attribute to the authorities (for instance, the legislator) the capacity to create values; rather, it means that we are interested only in the values adopted by legal authorities. Just as there are implicit norms, one can, of course, also speak of implicit value judgments. Those who accept such value judgments of the authorities also accept that there is a reason for thinking that it is justified (or unjustified, or indifferent) to perform certain actions or to bring about certain states of affairs.

From the perspective of the legal system, an action or state of affairs can be intrinsically or extrinsically valuable (or disvaluable). It is intrinsically valuable if it is attributed (positive) value for itself. It is extrinsically valid if the action or state of affairs is, by itself, indifferent (or even disvaluable) and if what makes it valuable is exclusively the connexion it is supposed to have with some action or state of affairs that is intrinsically valuable. Among the things that are intrinsically valuable, it is convenient to distinguish two subtypes: ultimate values and utilitarian values. To characterize some action or state of affairs as an ultimate value means that its consequences are disregarded; because if what made it valuable were its consequences, what is valued, in the last instance, would not be the action or state of affairs in question, but its consequences — i.

e., other states of affairs. Thus, since here the relationship between actions and states of affairs can only be intrinsical or conceptual, that distinction looses much of its sense. If, for example, we look at freedom of expression — understood as a negative freedom — as one of those ultimate values, it makes no difference whether we say that what is valuable — or justified — are the actions that respect or guarantee freedom of expression, or the state of affairs in which freedom of expression is respected or guaranteed. This does not mean, of course, that freedom of expression has no consequences (for example, it makes the functioning of democracy possible, it facilitates social change, etc.); it only means that we value freedom of expression, no matter what are its consequences.

The difference between actions and states of affairs is, however, relevant with respect to utilitarian — i. e., intrinsic, but not ultimate — values. The characteristic of utilitarian values is that the actions and states of affairs regarded as such allow for a superior criterion of evaluation. Thus, for example, we positively value the state of affairs consisting in all citizens having either a job or some other source of income; but we value this basically because of its consequences: because it enables everyone to make and carry out a plan of life, etc. That is why, in general, we accept that this value is restricted by others, like that of equality: A policy of full employment that entailed some form of discrimination on grounds of sex would be considered unjustifiable, no matter how efficient — with respect to the value of 'full employment' — it would be.

All this does not mean that the sphere of ultimate values should be seen as coinciding with that of the values of freedom, whereas the sphere of utilitarian values should be identified with that of economic or social objectives. In order to reject this identification, we only need to observe that, according to the Spanish Constitution, freedom of expression, understood as a negative freedom, is an ultimate value, but understood as a material, or real, freedom, it is an objective restricted by the necessity to take into account other objectives and interests as well as, of course, the values constituting ultimate ends.

Thus, for example, as we saw when we analyzed constitutional permissive sentences, the Spanish Constitution stipulates as one of the objectives to be pursued that individuals and groups should have the effective possibility of expressing their ideas and opinions. Also, with respect to health, it says that it is an ultimate value that a sick person should not be treated worse than other people who are otherwise in substantially the same conditions, whereas to offer the population the best possible health system is an objective that is not given the attribute of an ultimate value. In our view, this means that if we take each one of the major values to be found in our legal orders as a whole (health, liberty, equality, property, etc.), then their classification in terms of ultimate values and utilitarian values may not be possible. Rather, what happens is that concerning those major values, there are aspects which are seen as ultimate, and others merely regarded as objectives to be pursued (but which, although they are intrinsically valuable, are not ultimate ends).

Again, this does not mean that ultimate values have no bounds. Since legal orders do not recognize a single ultimate value and since it cannot be excluded that in some particular case, different ultimate values pointing into different directions are involved, we can say that those values restrict each other horizontally, but not vertically. Since they can clash with each other, the range of application of each one of them is restricted, but not their force or strength, because in that case they would not be ultimate values. Utilitarian values, in contrast, are not only restricted horizontally by other utilitarian values, but also vertically — with respect to their force or strength — by ultimate values.

As we have said, extrinsic values are of a purely instrumental kind (what makes such actions or states of affairs valuable is exclusively their relation with some intrinsically valid action or state of affairs).

We can find that purely instrumental character in states of affairs considered valuable by the legal order as well as in states of affairs considered valuable by an agent himself. Thus, for example, to drive on the right is not, in itself, a valuable action; what makes it valuable — justified — is to see it as a mechanism (among others) for obtaining traffic safety (which, according to the legal order, is a valuable state of affairs). Punishments are, in themselves, disvaluable; what makes their imposition valuable is exclusively their character as a means of retribution (according to a retributive conception of punishment, it is an instrument for realizing an ultimate value) or general and/or special prevention (according to a preventive conception, punishment is an instrument for realizing a utilitarian value). The production of a certain normative result can be seen as instrumentally valuable with respect to certain ends pursued by those who use the power-conferring rule. Thus, for example, the making of a will is an instrument to be used by those who wish that their property, after their death, is disposed of in a certain way.

This already enables us to examine the different kinds of legal sentences we have distinguished, with respect to the values they entail or, in other words, from a justificatory perspective.

The justificatory aspect of principles is different in principles in the strict sence and in policies. The former provide an ultimate justification (since what they express are ultimate values), but not a conclusive one (until it is decided how possible conflicts with other norms are to be solved).

In the case of policies, the justification they provide is not ultimate, since they contain only utilitarian values, restricted — we can say, negatively — by ultimate values. It is also not conclusive, because a causally appropriate action for bringing about the state of affairs considered valuable from a utilitarian perspective by the policy can negatively affect the realization of other states of affairs also considered valuable from a utilitarian point of view by other policies.

In contrast to principles in the strict sense, in policies the relationship between states of affairs and actions is extrinsic or causal. And that causal process is always, inevitably, affected by other causal processes which connect other ends (states of affairs) declared objectives to be pursued by the legal order to the actions that promote them. A justified action, we can say, is the action which, while respecting the other norms of the order (and especially the limits drawn by principles in the strict sense), is the most efficient, i. e., implies the smallest sacrifice of other ends. However, in the case of principles in the strict sense, we can determine a justified action irrespective of the causal process, that is, without considering its consequences. In other words, what we have here are criteria of correctness, not of efficiency. Critera of correctness imply an either-or requirement: a decision is or is not correct,^[65] whereas criteria of efficiency can be satisfied in different degrees. For example, a decision may be more efficient than another one, but it makes no sense to say that a decision is more correct than another one (since in that case, the latter one would simply not be correct).

In the case of power-conferring rules, we must distinguish various elements. Action Y of the antecedent obviously entails a merely instrumental value: the action is valuable in so far as result R is valuable. State of affairs R can be evaluated from the point of view of the legal order, or from the point of view of the agents. From the former point of view, we can say that the legal order rules results to be obligatory because it considers them valuable (they may be valuable in an ultimate, a utilitarian or simply an instrumental sense), whereas what is facultative is considered to be indifferent. From the point of view of the agents, state of affairs R can be indifferent or can be considered valuable in an ultimate, a utilitarian or an instrumental sense. Also, one can make an instrumentally valuable use of power-conferring rules in two different senses: on the one hand, in so far as the subject is able use them adequately, in the sense of performing the actions appropriate for bringing about the result; and on the other, those norms can also be used as instruments for attaining social and individual consequences, that is, as instruments serving values or ends that are external to the legal order.

Mandatory rules are specifications of the generic circumstances constituting the conditions of application of values of any one of the kinds we have distinguished. This means that the values incorporated in the actions or states of affairs deontically qualified by rules as obligatory or prohibited can be of the ultimate, of the utilitarian or simply of the instrumental kind (or consist in some combination thereof). Thus, the norm prohibiting to kill another person (unless there are certain special circumstances) contains an ultimate value. The norm commanding that in urban areas a certain percentage of the territory must be reserved for parks or recreational facilities contains a utilitarian value. And the norm obliging one to pay a certain percentage of one's annual income, depending on the amount of that income, as income tax obviously contains a utilitarian value, but also ultimate values in the form of constraints on the realization of that utilitarian value (since, e. g., fiscal pressure must be progressive relative to income, it must respect the prohibitions of discrimination contained in art. 14 of the Spanish Constitution, etc.). And the norm ordering one to drive on the right, or a norm ordering an administrative organ to complete certain tasks within certain time limits, simply contain an instrumental value.

Concerning permissive sentences, remember the distinction drawn in ch. Ill, depending on whether such sentences appear in the context of principles, of power-conferring rules, or of rules regulating 'natural' conduct. With respect to the first two of these contexts, we have already indicated what their value aspect consists in. As for rules regulating 'natural' conduct, it will be recalled that, from the directive point of view, we characterized permissions in this context either in negative terms (as anullment of, exception from, or clarification of the domain of, prohibitions) or in terms of an indirect formulation of prohibitions. From the second perspective, we have nothing to add to what has been said about mandatory rules. And from the first, we can say that the evaluative dimension of permissions in this context must also be characterized in a negative way: In this context, permissions imply that the actions in question are not (or no longer) subject to evaluation by the legal order (and, therefore, their evaluation is left to the subject's own value judgments).

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

4. Types of norms and types of values

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