1.3. Weak and strong permission in Alchourron and Bulygin

Of all important works in contemporary legal theory, the one which most stres­ses the relevance of the distinction between strong and weak permission is probably that of Alchourron and Bulygin.^[46] As the reader may know, that distinction is one of the cornerstones of Normative Systems (1971) — the book with which, in von Wright's words, Alchourron and Bulygin "stepped on the in­ternational stage" —, and it also plays a central role in later papers like 'The ex­pressive conception of norms' (1981), 'Permission and permissive norms' (1984) or 'Libertad y autoridad normativa' (1985) (all of them reprinted, in Spanish, in Alchourrdn/Bulygin 1991).

1) The first refers to concepts of permission. According to Alchourron and Bulygin, we must distinguish three of them: a prescriptive concept of per­mission, plus the descriptive concepts of strong and weak permission:

"When the term 'permitted' occurs in a norm it expresses the prescriptive concept of permission [...] But the same term occurring in a norm proposition is ambiguous: when one says that a state of affairs p is permitted by a set of norms a, this may mean two different things: either that there is a norm (in a) permitting that p, or that p is not prohibited by a. So there are two concepts of descriptive permission: strong permission [...] and weak permission" (Alchourrdn/Bulygin 1984, 353).

2) In contrast to what happens in complete and consistent normative sys­tems, where the distinction between weak and strong permission "vanishes [be­cause] both concepts overlap" (ibid., 353), in the context of normative systems that are incomplete (where there are conducts that are permitted in the weak sense, but not in the strong sense) or inconsistent (where there are conducts permitted in the strong sense, but not permitted in the weak sense, because the system also contains a norm that prohibits them) that distinction acquires spe­cial relevance (ibid.).

Up to this point, we have no objection against Alchourron/Bulygin's theses. That some behaviour may be, at the same time, permitted in the strong sense and prohibited by some other norm of the same system means no more than that normative systems can contain antinomies; and that is, in our view, something that cannot be denied. But this alone is not a sufficient argument for regarding what they call prescriptive permission to be an independent norm­character, because that same situation could also be described — without hav­ing to refer to permissions — as an antinomy between two norms, one of which prohibits a certain conduct in a certain case while the other negates that prohi­bition (i. e., has the form 'p is not prohibited in case q’).^[47] In order to be able to regard prescriptive permission as an independent norm-character, it would have to be shown a) that when a behaviour is covered by a prescriptive permission (that is, by a permissive norm which allows us to say, at the level of norm-pro­positions, that the behaviour in question is strongly permitted), the normative status of that behaviour is different from when it is only weakly permitted; and b) that the modification of the system produced by the introduction of a per­missive norm is different from the negation or nullification of prohibitions as well as from the introduction, by an indirect formulation, of prohibitions of behaviour different from, though related to the behaviour mentioned in the per­missive norm (that is, from behaviour consisting in prohibiting, hindering or sanctioning the behaviour mentioned in the permissive norm).

3) Now, according to what Alchourron and Bulygin themselves say (al­though probably not according to what they mean to say), that 'practical diffe­rence' between weak and strong permission, that is, the modification produced in a system by introducing a permissive norm, can be explained completely in terms either of the negation or cancellation of prohibitions, or by an indirect formulation of prohibitions.

3.1) Slightly reformulating an example of Alchourron and Bulygin themselves (1971,165), suppose we have the following two norms:

Nf. In circumstances A and B, p is prohibited.

N₂: In circumstances non-A and non-B, p is permitted.

Now, continuing with the example, imagine a state of affairs such that circum­stances A and non-B hold. According to Alchourron and Bulygin, in such a situation, the interpreter cannot find a satisfactory solution, because "[t]he ar­gumentum e contrario allows us to infer two incompatible conclusions, ac­cording to which of the two norms is adopted as a premiss". Thus, the solution of the problem must come from the introduction of a third norm:

N₃: In circumstances A and non-B, p is permitted.

This norm allows us to solve the case without having to decide beforehand whether Nj or N₂ should be adopted as the premise of an argumentum e con­trario. Now, obviously, that solution could also be reached (without any need to introduce a permissive norm) if instead of N/ we had:

N_r: Only if circumstances A and B are given jointly, p is pro­hibited.

That means: N₃ only limits (by specifying it for an unforeseen case) the scope of the prohibitive norm N_r N₃ negates the extension of the prohibition stipula­ted in N_} to the case consisting in circumstances A and non-B.

3.2) An important function of permissive sentences is that of derogating pro­hibitive norms.

"[A] prohibition certainly cannot be lifted by means of another prohibition. In order to cancel or derogate a norm of obligation we need to perform another kind of normative act, which is radical­ly different from the act of issuing a prohibition. Permissive norms often (if not always) perform the important normative function of derogating prohibitions." (Alchourrdn/Bulygin 1984, 368)

But the kind of normative act necessary for derogating a prohibitive norm does not necessarily have to be understood as an act of permission. It can be regar­ded simply as an act of derogation (that is, of canceling a prohibition). If by un­derstanding it in this way we can explicate the same thing then, by the principle of economy, this alternative is preferable since we do not need to introduce per­mission as an independent norm-character. That is precisely what Alchourron and Bulygin admit in 'The expressive conception of norms'. Under the heading 'Permission', they ask how an expressivist theory of norms can account for acts consisting in giving permission to perform an action p, and they say that

"There seem to be two possible ways out of this difficulty, (i) One way is to describe this act as an act of lifting a prohibition, i. e. as derogation of the prohibition of p. (ii) An alternative way is to accept a new kind of normative act, the act of giving or granting a permission (for short: act of permitting). If this is accepted, then it must also be accepted that there are two kinds of norms, mandatory norms and permissive norms (in the sense in which an expressivist uses the term 'norm') [...] At this state, one feels tempted to ask: are there really two distinct analyses? What is the difference, if any, between promulgating a permission and derogating a prohibition? [...] One has the impression that both analyses are substantially equivalent in the sense that they are two different descriptions of the same situation.

3.3) Still another important function of permissive norms is regulating the exer­cise of the normative powers of authorities of lower rank than the one issuing the permissive norm. In 'Permission and permissive norms', they write with re­spect to the narrative of Echave/Urquijo/Guibourg quoted earlier:

"Let us suppose that one day Toro Sentado decides to appoint a minister. The minister is author­ized by him to issue new norms regulating the behaviour of the people and to derogate them, but he has no competence to derogate the norms issued by Toro Sentado himself. In this case the per­mission given by Toro Sentado to hunt on Tuesdays and Fridays functions as a limitation of the competence of his minister: the minister cannot derogate these norms and so he cannot prohibit to hunt on those days, though he can prohibit to hunt on any other day of the week. So such per­missions can be interpreted as a rejection in advance of the corresponding prohibitions" (Al- chourrdn/Bulygin 1984, 369 f; cf. also Alchourron/ Bulygin 1985,244 ff.)

As the reader will have noticed, in this text Alchourron and Bulygin think that prohibitions of the exercise of some competence are part of the competence norm itself. In our view — for the reasons pointed out with respect to Ross — it is preferable to see such prohibitions as the content of regulative norms about the exercise of competence, i. e., regulative norms that are different from the competence norm itself. However, for two reasons, this is not very important for our present context: First of all, because the distinction between the norm of competence and the regulative norms guiding its exercise has later been accep­ted by the authors we are examining here;^[48] thus, in 'On Norms of Competence', Eugenio Bulgin writes that "[situations in which a person has legal compe­tence to produce certain types of acts and at the same time is forbidden to make use of his competence are relatively frequent" (Bulygin 1992, 205 f.). Second­ly, because the question of whether or not prohibitions to exercise a compe­tence are part of a competence norm itself is not essential for the topic we are interested in; what is important is that, according to Alchourron and Bulygin, permissions given by a higher-ranking authority to a lower-ranking authority are nothing but indirectly expressed prohibitions. Therefore, from this perspec­tive too, there is no reason for regarding permission as an independent norm­character.