1.2. Von Wright's proposal: Permissive norms as promises

Von Wright's proposal to understand permissions as promises by those who issue them deserves more attention than Ross' remarks quoted above may suggest. The conception of permissions as promises is the final result of the careful analysis of permissions (or, more precisely, of 'permissive prescriptions') carried out in Norm and Action (von Wright 1963), on which we will concentrate our attention.^[44]

In Norm and Action, von Wright examines the two ways or forms in which "it has been attempted to deny the independent status of permissions: The one is to regard permissions as nothing but the absence or non-existence of 'corresponding' prohibitions.

The other is to regard permissions as a peculiar kind of prohibition, viz. prohibitions to interfere with an agent's freedom in a certain respect" (von Wright 1963, 85). His analysis of the first of these two ways leads von Wright to formulate the distinction between weak and strong permission, while examination of the second makes him characterize 'permissive prescriptions' as promises. We will look at both of them in turn.

Von Wright thinks that the simple identification of the permission to do a certain thing with the absence of a prohibition to do that same thing is 'in serious error', for the following reason:

"One cannot make an inventory of all conceivable (generic) acts. New kinds of act come into existence as the skills of man develop and the institutions and ways of life change. A man could not get drunk before it had been discovered how to distil alcohol. In a promiscuous society there is no such thing as committing adultery.

As new kinds of acts originate, the authorities of norms may feel a need for considering whether to order or to permit or to prohibit them to subjects. [...]

It is therefore reasonable, given an authority of norms, to divide human acts into two main groups, viz.

acts which are and acts which are not (not yet) subject to norm by this authority. Of those acts which are subject to norm, some are permitted, some prohibited, some commanded. Those acts which are not subject to norm are ipso facto not forbidden. If an agent does such an act the law-giver cannot accuse him of trespassing against the law. In that sense such an act can be said to be 'permitted'.

If we accept this division of acts into two main groups — relative to a given authority of norms — and if we decide to call acts permitted simply by virtue of the fact that they are not forbidden, then it becomes sensible to distinguish between two kinds of permission. These I shall call strong and weak permission respectively. An act will be said to be permitted in the weak sense if it is not forbidden; and it will be said to be permitted in the strong sense if it is not forbidden but subject to norm. Acts which are strongly permitted are thus also weakly permitted, but not necessarily vice versa.

Roughly speaking, an act is permitted in the strong sense if the authority has considered its normative status and decided to permit it." (von Wright 1963, 86)

Now, if one accepts von Wright's distinction between weakly and strongly permitted acts,^[45] the following three questions arise: 1) Does the introduction of a norm that permits act X in any way change the status of act X, previously not subject to a norm? As we have just seen, von Wright says that if an agent does (or, we may add, forbears) a weakly permitted act, "the law-giver cannot accuse him of trespassing against the law". But the situation is exactly the same if he does (or forbears) an action doing and forbearing of which are strongly permitted, for the simple reason that permissions can neither be complied with nor not complied with. 2) Does the introduction of a permissive norm with respect to act X change the status of other acts different from, but related to X, that is, acts of hindering or sanctioning the performance of X? 3) Does this change in the status of other acts different from the one the permissive norm explicitly mentions imply something more than the prohibition to hinder or sanction those acts? If the answer to the first question is negative, then the possible relevance of permissive norms would have to be found in relation with other acts different from those the norms explicitly mention.

And if the question to the third question also is negative, then so-called permissive norms are nothing but an indirect formulation of prohibitive norms.

But in order to see how von Wright answers those questions, we first need to see how he treats the second of the above-mentioned ways of denying an independent status to permissions, that is, that of regarding them as prohibitions to interfere. In that respect, von Wright notes that "It seems possible to distinguish between various kinds of strong permission" which are — in an order of increasing strength — permission as toleration, permission as a right, and permission as a claim:

"In permitting an act the authority may only be declaring that he is going to tolerate it. The authority 'does not care' whether the subject does the act or not. The authority is determined not to interfere with the subject's behaviour as far as this act is concerned, but he does not undertake to protect the subject from possible interferences with his behaviour on the part of other agents.

Any (strong) permission is at least a toleration, but it may be more than this. If a permission to do something is combined with a prohibition to hinder or prevent the holder of the permission from doing the permitted thing, then we shall say that the subject of the permissive norm has a right relatively to the subjects of the prohibition. In granting a right to some subjects, the authority declares his toleration of a certain act (or forbearance) and his intolerance of certain other acts. [...] We ought to distinguish between not making an act impossible (for someone to perform) and making an act possible. The second is also called enabling (someone to do something). It is the stronger notion. Enabling entails not-hindering, but not-hindering does not necessarily amount to enabling.

If a permission to do something is combined with a command to enable the holder of the permission to do the permitted thing, then we shall say that the subject of the permissive norm has a claim relatively to the subjects of the command. It is understood that any claim in this sense is also a right, but not conversely." (von Wright 1963, 88 f.)

A 'permission as a right' is a 'permission as toleration' plus a prohibition to hinder or prevent performance of the permitted act; a 'permission as a claim' is a 'permission as a right' plus a command to make performance of the permitted act possible.

What 'permissions as rights' and 'permissions as claims' add to 'permissions as tolerations' are, respectively, prohibitions and obligations concerning the behaviour of others. As von Wright himself says, "the specific characteristics of the [last] two species of (strong) permission [...] can be accounted for in terms of prohibition and/or command". And thus, he continues, "if there is an element in permissions which is not reducible to the other normcharacters this element is identical with what we called toleration" (ibid., 90). "In order to see whether permission is an irreducible norm-character or not, we must thus examine the notion of toleration." A declaration of toleration can be either a declaration of intention — which does not express any norm, because "a declaration of intention is not a normative concept at all" — or a promise — and then "the question whether permission is definable in terms of the other norm-characters would be reducible to the question whether the normative character of a promise (or at least of a promise of non-interference) can be accounted for in terms of 'ought' and 'must not'" (ibid., 91). In von Wright's view, "That the answer to the last question is affirmative would probably be universally conceded" (ibid.). Therefore, although our author ends his treatment of permissions saying that "On the question whether permission is or is not an independent norm-character, I shall not here take a definite stand" (ibid., 92), it looks as if from his analysis we can draw the negative conclusion, i. e., that what in permissions is not reducible to prohibitions or commands to others can be reduced to self-prohibitions by the issuing authority.

In any case, in von Wright's opinion, that last notion is problematic, because "on the view of permissions as promises, permissions would be selfreflexive prescriptions, viz. self-prohibitions". And prescriptions "require an authority and a subject" which, in the case of permissions as toleration, would be one and the same.

Whether this is possible, whether self-reflexive prescriptions are possible, is, in von Wright's view, open to question, and therefore, "If we think that such prescriptions cannot exist we should have to conclude that permissions are not prescriptions" (ibid., 91). But that would lead one to regard permissions as norms of a moral kind, because "That promises ought to be kept would ordinarily be thought of as a typically moral norm, and the obligation to do this or that because one has promised to do it would be called a moral obligation" (ibid., 92).

This last assertion is, of course, questionable, not only because, if 'Promises ought to be kept' is a moral norm, then, in the last instance, 'Prescriptions of an authority ought to be complied with' also would be one, but for reasons more internal to the law. Because the notion of 'self-prescription' may be problematic; but, of course, the notion of a 'voluntarily created obligation', as the consequence of a promise, does not seem problematic at all, since this type of obligations are the basis of such uncontrovertibly legal institutions as contracts as well as unilateral acts-in-the-law in which — as there is no exchange of promises but only a promise in one direction — the situation is substantially the same as in promises as toleration, as presented by von Wright. That an authority creates an obligation for itself does, in our opinion, not seem to produce any special problem for legal theory.

We do think, however, that there are a few observations worth to be made before concluding the analysis of von Wright's treatment of permissions. The first is that, regardless of von Wright's final reservations, conceiving of permissions as promises of non-interference leads one to deny that permissions are an independent category of norms: Where they cannot be reduced to prohibitions to others, they are nothing but self-prohibitions by the respective authority. The second observation is that conceiving of permissions as promises of non-interference (and, therefore, as self-prohibitions) seems to be especially suited for permissions issued in more 'informal', less institutionalized contexts than the legal one.

If, for example, a father says to his son that he has permission to go play outside, we can readily agree that the father thus acquires the obligation not to punish his son if he does go outside to play. In legal contexts, however, that sense seems to be much more limited. The constituent assembly never prohibits only itself to interfere, for instance, in the freedom of expression. Actually, there would be a self-prohibition only if we were dealing with a constitution that prohibits its own modification in that point (which is rather infrequent and creates problems of a very different kind than those we are treating here); but even in that case, there would be a prohibition of interference for someone else, namely, first of all, for the ordinary legislator who is usually the most important addressee of that kind of constitutional prohibitions. The same occurs when the ordinary legislator permits something: prohibitions of interference with the permitted conduct are not addressed to himself (the principle of lex posterior seems to be practically universal in the legislative sphere), but to executive and judicial organs as well as to the general public. Thus, Ross seems to be right when he says about permission as toleration that "I know of no legislative act which says this" (1968, 123).

So, whether we regard permissions as the absence of prohibitions or as prohibitions of interference, the analysis of von Wright's work brings us to the conclusion that both ways lead one to deny independent status to permissions.

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

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