COMMANDING AND DEFINING. ON EUGENIO BULYGIN'S THEORY OF LEGAL POWER-CONFERRING RULES.

AutorRosas, Gonzalo Villa
CargoEnsayo critico
  1. Introduction

    Decisions of legal officials, promises, contracts, wills and taxes are considered as some examples of legal power exercises. (1) Yet despite the relatively widespread agreement among contemporary legal theorists and legal practitioners on what can be described as legal power exercises--numerous questions arise when one asks about the very concept of legal power. As stated by Alexy, this is a clear clue about the existence of a philosophical problem. A concept can be used in everyday life; however, when one begins to analyze it, it can become quite doubtful (Alexy 2008, p. 43).

    Two prevailing theoretical approaches have dealt with the concept of legal power. On the one hand, it has been argued in well-known theories that legal power is reducible to deontic modalities. Those theories which affirm that legal power-conferring rules are reducible to norms of conduct that are either a kind of duty, or a kind of permission belong to this tendency. Austin's, (2) Kelsen's, (3) Ross's, (4) and Spaak's, (5) as well as Bentham's, (6) von Wright's, (7) Kanger and Kanger's, (8) and Lindahl's (9) theories can be considered as examples of this reductionist tendency. On the other hand, those theories that elucidate legal power as a normative social, pragmatic or institutional phenomenon may be identified as examples of an approach that has shown that legal power is not reducible to deontic modalities. In this vein, Hohfeld's, (10) Hart's, (11) Raz's (12) theories, as well as the position of Ruiter (13) and MacCormick (14) can be identified as examples of this trend.

    Eugenio Bulygin has defended two different approaches in this field. In his early works developed with Carlos Eduardo Alchourron, he defended a reductionist theory, according to which legal power-conferring rules are a special kind of permissive rules that perform a constitutive function at the same time (Alchourron and Bulygin 1971, p. 151). Notwithstanding, by rejecting the normativist position about the nature of law, (15) these authors have defended a non-reductivist position in order to define legal power-conferring rules. According to this second approach, such rules must be considered constitutive rules--or better said, definitions (Alchourron and Bulygin 1991, p. 463)--in an exclusive manner, since they do not prescribe any behavior as obligatory, prohibited, or permitted (1991, pp. 462-463). This account has also been defended by Eugenio Bulygin in his article from 1991 titled "On Norms of Competence".

    The goal of this paper is to explore two objections raised against Eugenio Bulygin's second approach to the definition of the nature of legal power-conferring rules. According to the first objection, inasmuch as Bulygin's second account maintains that these rules define a variety of heterogeneous phenomena, such an account is vague about what is defined by legal power-conferring rules qua constitutive rules. This problem of vagueness is rooted in the lack of a suitable definition of legal power. In this paper, I shall be arguing for the reduction of the complexity of the definientia through positing a comprehensive concept of legal power which allows one to explain it as a species of competence. According to the second objection, this non-reductive approach cannot explain the normativity of this kind of rules. In other words, the non-reductive approach cannot explain the authoritative feature of legal power. In this paper, I shall be arguing for a dual function of legal power-conferring rules as constitutive rules of legal practice. According to this position, determining the deontic and the definitional function of this kind of rules is a matter of perspective. Unlike the mere activities, the practices are associated with internal normative evaluation standards which are coded by means of rules. These rules govern how to run a practice correctly (Rescorla 2009, p. 101). In this way, from the theoretical point of view, legal power-conferring rules play a definitional role, due to the fact that they are necessary conditions for the identification of the practice. In contrast, from the practical point of view, legal power-conferring rules carry out a deontic function, due to the fact that they are necessary conditions for achieving the aims associated with the practice.

    Our inquiry will be divided into three parts. The first part will deal with Bulygin's theory of legal power-conferring rules. The second part will be devoted to the analyses of the problem of vagueness and the exposition of a method for the reduction of the complexity of definientia. The third part addresses the problem of the normativity of the legal power-conferring rules qua definitions.

  2. Eugenio Bulygin's Theory of Legal Power-Conferring Rules

    In his theory, von Wright coined the name normative action in order to refer to a peculiar mode of action by virtue of which an authority "orders, permits, or prohibits certain subjects to do certain things on certain occasions" (1963, p. 75). This peculiar mode of action is ruled by a special kind of norms which have been termed "norms of higher order" (p. 190). According to von Wright, subjects of norms of higher order are themselves authorities of norms of lower order (p. 192). The norms belonging to a higher order must be distinguished from those whose contents are other than normative actions, i.e. norms of the first order (p. 191). Whilst among norms of the first order commands and prohibitions hold the most prominent position, in norms of higher order permissions are of peculiar interest and importance (p. 192). In this vein, according to von Wright's account, legal power-conferring rules are norms of higher order which permit a certain authority to issue norms of a certain content (p. 192).

    According to Alchourron and Bulygin, the main interest of jurists lies in discovering the solutions that law provides for certain cases (1971, p. 68). This activity amounts to "the determination of the normative consequences of a set of legal sentences for a certain problem or topic" (p. 68). This determination involves "the construction of an axiomatic system, adopting these [legal] sentences as axioms" (p. 68). In order to achieve that construction, jurists must define the criteria that will be used to identify those sentences (p. 68). (16) These identification criteria define the notion of a valid legal sentence (p. 73) by setting out which requirements a legal statement must meet to be valid (p. 72). For the reason that these identification criteria are conceptual rules--that is, they merely regulate the use of the concept of validity--(p. 73) they must be distinguished from those norms which establish that an action is obligatory, forbidden or permitted--that is, from norms of conduct (Alchourron and Bulygin 1991, pp. 462-463). Alchourron and Bulygin abandon a certain legal positivist tradition, which identifies the validity criteria of a legal system with its norms of competence (17)--rectius: legal power-conferring rules (1971, p. 73, n. 2)--(18) by maintaining that the identification criteria must not be confused with such norms, since, in contrast to those criteria, they must be considered as a special class of norms of conduct which "[permit] the creation of new norms" (1971, p. 73).

    For Alchourron and Bulygin, the centralization of the function of jurisdiction in the hands of specialized officials is a plausible reason for the existence of two normative systems which run parallel but that are interdependent (1971, p. 148). Along with a primary system--or better said, a subject system--which is made up by norms which regulate the behavior of the subjects of law, there is a secondary system--or better said, a judge system--which is comprised of norms which regulate the behavior of judges and other jurisdictional organs (p. 148). These latter norms may be either norms of competence or norms which establish obligations and prohibitions for the judges (p. 151). Based on von Wright's theory, Alchourron and Bulygin affirm that norms of competence are "norms of conduct for the judges, if we regard them as permissive norms establishing the permission to perform certain acts in certain circumstances" (p. 151). Notwithstanding, they argue that these permissive norms are a special kind since, at the same time, they are constitutive of judicial authority. In fact, "nobody becomes a judge except on account of a norm of competence and to the degree and extent that this norm specifies" (p. 151). These norms "are part of the meaning of the term 'judge' " (p. 151).

    Various criticisms have been raised against the position that posits the reduction of legal power-conferring rules to permissive rules. (19) On the one hand, Makinson has sharply pointed out that the difference between these kinds of rules lies in the necessary constitutive feature of the former. Indeed, according to him,

    [i]f a person does something that is not permitted, then the action is done, although it may render the person liable to punishment. On the other hand, if a person tries, say, to celebrate a marriage or issue a passport without having the power to do so, then we say that he has not in fact celebrated a marriage or issued a passport (for emphasis: has not issued a valid passport) but has only gone through the motions or given the appearance of doing so. (Makinson 1986, p. 411) On the other hand, based also on the constitutive nature of the legal power-conferring rules, Makinson has recognized a structural difference between legal power and permission that has been less noticed. Although it makes perfectly good sense to say, that a person has permission not to do something, it is very strange to say that someone has the legal power not to perform it (1986, p. 412).

    But even more importantly, Bulygin himself has accepted that "[t]he idea that competence norms are essentially permissive is difficult to reconcile with legal practice" (Bulygin 1991, p. 205)...

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