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Reflections and replies

Legal positions reexamined

A critique of Duarte’s norm-based analysis
Jorge L. Rodríguez

Abstracts

This commentary originated from discussions held within the blind peer review process of David Duarte's paper Rights as formal combinations of normative variables, recently published in Revus (2023) 51. The author challenges Duarte's norm-based analysis of fundamental legal positions on eight counts. It argues that Duarte's analysis fails to fully respect the distinction between genuine norms and normative propositions; raises insubstantial questions about norm individuation; does not clarify whether conditional norms rely on material conditionals, stronger generalized conditionals, or defeasible conditionals; misplaces the opportunity conditions for norm application in the antecedent of a conditional norm; wrongly assumes the universality of bilateral permissions for claim-right holders to accept the results of obligatory actions and that all exercises of legal power are necessarily permitted; and, finally, improperly reduces legal provisions of strong incompetence and immunity to merely declarative statements.

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1 Introduction

  • 1 Duarte 2023: 7.

1In a recent paper titled “Rights as formal combinations of normative variables”, David Duarte identifies what he takes as two flaws in Hohfeld’s (1919) analysis of legal positions: First, “that a norm is not a necessary condition of a legal position,” and second, “that one single action in a correlativity line is sufficient to bring about the action’s result”.1 To overcome such alleged deficiencies, the author develops a new norm-based table of legal positions where co-action from correlated agents is also considered. Duarte views the strictly formal character of this approach as a challenge to traditional theories of rights.

2The structure of the paper is coherent, it is well-written and clear, and the bibliographical references are adequate and up-to-date. Though Duarte offers very interesting insights, several central issues in the paper deserve reconsideration. These issues will be addressed in the following eight sections.

2 Ambiguity between norms and normative propositions

3Duarte’s paper begins with a brief account of some of Alchourrón and Bulygin’s (1971) ideas, emphasizing that an analysis of legal positions should be based on a clear distinction between moral and legal systems, an interpretation of a legal system as a set of norms entailing all its logical deontic consequences, and consequently, that legal positions should include only those that are given by the norms belonging to the set.

4As is well known, one of the fundamental theses in Alchourrón and Bulygin’s (1971) work is the distinction between genuine norms and normative propositions, i.e., descriptive propositions about the existence of norms, or more specifically, about the membership of norms in a normative set, and a correlative difference between a genuine logic of norms and a logic of normative propositions. Duarte cites this distinction, uses it throughout the paper, and even wonders whether some of the problems in Hohfeld’s (1919) analysis of legal positions derive from a confusion between norms and normative propositions. However, Duarte’s paper does not appreciate the real scope of the distinction and confuses both dimensions.

5When analyzing the elements of norms, Duarte claims, regarding the deontic operator, that

  • 2 Duarte 2023: 16; online §20.

using the square of deontic modalities, it follows that action φ can be forbidden, mandatory, positively permitted or negatively permitted. Given the accepted meaning of these words, from a prohibition it follows that the agent has a duty to ~φ, from an obligation a duty to φ, from a positive permission a liberty to φ, and from a negative permission a liberty to ~φ.2

And adds that

  • 3 Duarte 2023: 16; online §20.

there are good arguments to sustain that, similarly to prohibitions and obligations, permissions can also be understood as a complete deontic modality. That is, in the same way that the prohibition of φ entails ~φ to be mandatory and the obligation of φ entails ~φ to be forbidden, the permission of φ can also be seen as ~φ to be permitted as well”.3

  • 4 Duarte 2023: 18; online §23.

From this, Duarte concludes that “each imposition of φ or of ~φ contradicts the permission of φ and ~φ; the permission of φ and ~φ contradicts either with the imposition of φ or of ~φ”.4

6This is all as it should be in the realm of norms, i.e., within a logic of norms. Here we have three mutually exclusive and jointly exhaustive deontic modalities: Oφ (obligation), O~φ (prohibition), and Pφ  P~φ (double or bilateral permission). The problem is that the analysis offered in the paper concerns the deontic status of actions according to a given legal system, and this means locating the point of view, not in norms themselves, but in normative propositions. Of course, “duty”, “liberty”, “right”, “competence” are words also used in the formulation of norms, but the analysis of legal positions seems to be concerned with their uses in normative propositions. Now, in this realm, you cannot assume Oφ, O~φ, and Pφ  P~φ as being mutually exclusive and jointly exhaustive. To say that a given action φ is obligatory according to a certain normative system (NS) means that:

Oφ NS

To say that a given action φ is forbidden according to a certain normative system NS means that:

O~φ NS

7But, what does it mean to say that action φ is permitted according to a certain normative system NS? There are two possibilities, each one corresponding to two different ways the negation of O~φ NS may assume:

O~φ NS (weak or negative permission) or

~O~φ NS = Pφ NS (strong or positive permission).

  • 5 Alchourrón 1969.

8Weak or negative permission is the simple absence of a prohibition in a normative system; strong or positive permission depends on the presence of an explicit authorization in the system. These two notions are not equivalent since an action may be weakly permitted but not strongly permitted in a given normative system (in which case the system will be incomplete regarding such action), and may be strongly permitted but not weakly permitted in a given normative system (in which case the system will be inconsistent regarding such action). Since completeness and consistency are contingent properties of normative systems (in particular, legal systems), these two notions of permission cannot be assimilated.5

9Duarte recognizes and uses the distinction between strong and weak permission. But in such a case, he cannot assume that if an action φ is not obligatory but still permitted according to a normative system, this permission is a bilateral permission (Pφ  P~φ), since this would only be sound if one assumes Oφ, O~φ, and Pφ  P~φ are mutually exclusive and jointly exhaustive according to any normative system (as Duarte seems to do in Sec. 3.1). This is tantamount to assuming the necessary completeness and consistency of any normative system and, consequently, the equivalence between strong and weak permission.

10There have been challenges against this idea of distinguishing a genuine logic of norms and a logic of normative propositions, as well as against the difference between strong and weak permission. In fact, in Sec. 4 Duarte uses an argument inspired by Echave, Guibourg, and Urquijo’s (1980) famous Toro Sentado example to question the relevance of “nude” permissive norms and the distinction between strong and weak permission. However, these kinds of challenges are not convincing. In hierarchical normative systems, like legal systems, the existence of a permissive norm (even a “nude” permissive norm) at a certain level, granting thus a strong permission, makes a difference because lower level authorities have no competence to prohibit the permitted action. Duarte tries to respond to this in a note claiming that in such a case this effect “does not come from the permission in itself” but from “the superiority of the permission”. But this is inconclusive since, on the one hand, if in the higher level the action were only weakly permitted, it would in no way prevent lower authorities from prohibiting the action. Consequently, the kind of permission taken into account is what makes the difference. Moreover, and on the other hand, it is not even necessary to consider hierarchical normative systems to show that strong and weak permissions are not equivalent (neither logically nor pragmatically). If both permissions were at least pragmatically equivalent, then if two normative systems (without hierarchies) were equivalent, with the only difference being that a certain action φ is weakly permitted in one and strongly permitted in the other, one and the same normative alteration operated in both systems should lead to identical results. However, if such an alteration consisted in the introduction of a prohibition to φ, this would lead to an inconsistency in the second system but not in the first.

  • 6 See Alchourrón and Bulygin 1971: 177.

11Be that as it may, the point is that you cannot have your cake and eat it too. If you find challenges like those convincing, you cannot at the same time use the distinction between weak and strong permission. By contrast, if you think the distinction is sound, and you place the analysis of legal positions in the realm of normative propositions, then you should distinguish not only bilateral and unilateral liberties but also weak and strong liberties, which results in a much more elaborate and complex analysis than Hohfeld’s (1919). And this is not restricted to liberties: all deontic modalities become ambiguous, with a strong and weak sense, when you deal with normative propositions.6 Nothing remotely similar to this is suggested in the paper.

3 The problem of norm individuation

12In the abstract of the paper, Duarte claims that he will develop a norm-based table of legal positions based on “a simple proposal of norm individuation”, and in Sec. 3 he said that

[a]ssuming a legal system as a set of norms implies that each norm is an element of the set and that “a norm” is the unit of the system. Considering that norms are enacted by normative authorities using a natural language and that no match exists between an utterance and a norm, the immediate problem of norm individuation is posed. In simple terms, the problem is: what is a norm or, more accurately, what is a complete norm?

13The problem of norm individuation, at least in the way it has been presented in Raz (1980), cited by Duarte, is obscure. Questions like “What is a ‘complete’ norm?” or “How many norms have been enacted by the linguistic formulations expressed by certain authority?” seem rather useless and hardly illuminating. If you assume, as Duarte does, that legal positions are determined by the deontic consequences of legal systems, not by isolated legal norms, a question like “How many ‘complete’ norms have been enacted when the normative authority says ‘Murder is forbidden. Murder in self-defense is, under certain circumstances, permitted’”?, becomes insubstantial. What is needed, and that is what Duarte in fact does in the subsequent sections of the paper, is to offer a logical analysis of the structure of norms, not to adopt a certain position regarding the problem of norm individuation, whatever is meant by that.

4 The type of the conditional unspecified

14Analyzing the material elements of norms, Duarte claims

  • 7 Duarte 2023: 14; online §17.

necessary conditions for regulating behaviour are: (i) an action; (ii) a deontic modalization of that action; and (iii) the conditions under which the deontic modalization of the action depend. It follows that regulation of behaviour is impossible if one of these conditions is absent (some explanations for the third will be given later on). These three necessary conditions lead to the known elements of norm structure; in their conditional order: (i) antecedent; (ii) deontic operator; and (iii) consequence.7

And then,

  • 8 Duarte 2023: 14; online §17.

(viii) the norm sentence (NS) ‘when one loses faith in humanity it is mandatory to listen to Mozart’s Magic Flute’ has the norm (N) ‘when one loses faith […]’ (antecedent [lfh]), ‘it is mandatory’ (deontic operator [O]) to ‘listen to Mozart’s Magic Flute’ (consequence [lmf]): ‘lfh O lmf’.8

15Then, Duarte proceeds to consider some features of those elements. However, no clue is given regarding the logical link between antecedent and consequent in this structure, represented by the “ sign. Is it a material conditional, a stronger generalized conditional, a defeasible conditional (Duarte claims in Sec. 6 that “norms have the dispositional property of being defeasible”)? I don’t mean to say that a thorough analysis of the problem is needed for the purposes of the paper, but at least a brief clarification in a note is necessary to follow the ideas derived from this formalization.

5 Misrepresented opportunity conditions

16Considering the antecedent of a norm reconstructed in the way proposed in the paper, Duarte says:

  • 9 Duarte 2023: 14–15; online §18. An original footnote is omitted.

[T]he main point here is that, independently from others possibly expressed by the normative authority, a condition inherent to the possibility of exercising the action foreseen in the consequence has to be therein recognized. This means that, regardless of others (necessarily expressed), all norms contain the (usually unexpressed) condition of the opportunity to perform the action deontically modalized. Thus, when this condition is not filled (the action is not possible), the norm at hand is not applied, despite being in force like all the others within the set; when the condition is filled (the action is possible), it is a necessary (and possibly sufficient) condition for triggering the consequence.9

Exemplifying this, Duarte claims:

  • 10 Duarte 2023: 15; online §18.

(x) in ‘when one loses faith in humanity it is mandatory to listen to Mozart’s Magic Flute’ (formally, lfh O lmf), the antecedent has one expressed condition: ‘when one loses faith […]’; yet, it also has an opportunity condition (o) inherent to the action ‘to listen’: it has to be read as ‘o lfh O lmf’.10

And he adds:

(xi) in ‘o  lfh O lmf’, the condition ‘o’ is necessary but not sufficient to the obligation of listening to be applied (given ‘lfh’); however, in ‘everyone is allowed to sing’ (‘o Ps’), the condition ‘o’ is necessary and sufficient: whenever the action is possible, it is (effectively) permitted.

  • 11 Duarte 2023: 15; online §18.

(xii) a N such as ‘o Ps’ (everyone is allowed to sing), although in force at some point in space and time, it is only applied whenever the condition ‘o’ is filled; there is no opportunity of singing when the addressee is a person in a coma: in such situation, ‘o P s’ is not triggered.11

  • 12 Von Wright 1963: 74.
  • 13 Duarte 2023: 14–15; online §18.

17There are several issues with this argument. The idea that the possibility of performing the action regulated by a norm depends on certain “conditions of application”, as von Wright calls them,12 or “conditions of opportunity” in Duarte’s terminology, is of course perfectly sound. However, the representation of this idea and its impact on the structure of norms is quite a different matter. First, suppose I tell you “If it rains, close the window”. This is a conditional norm: if it rains, you have the obligation to close the window; if it does not rain, you have no obligation whatsoever. Now, of course, the possibility of performing the action of closing the window and, consequently, complying with your obligation, depends on certain other conditions, e.g., the existence of a nearby window, its being open, that you are not paralyzed by some strange illness, etc. What happens if any of those conditions are not met? Duarte’s answer is that “the norm at hand is not applied, despite being in force like all the others within the set; when the condition is filled (the action is possible), it is a necessary (and possibly sufficient) condition for triggering the consequence”.13 On this view, the joint satisfaction of these opportunity conditions (together with other possible conditions explicitly considered by the normative authority) is necessary for triggering the deontic consequence, otherwise, “the norm is not applied”. Does this mean that the failure of any of those opportunity conditions results in you having no obligation? This is awkward because the status of an explicit condition and the status of those opportunity conditions does not seem to be the same. As we saw in the rain-window example, if it does not rain, you have no obligation regarding the open or closed state of the window. If the window is open, you can leave it like that or close it, and if it is closed you can leave it like that or open it, and in neither case would you be violating any obligation. But suppose it is raining and the window is closed. In this case one condition of opportunity for performing the action of closing the window fails, but that does not mean you have no obligation, since if you decide to open the window, it would be perfectly sound for me to claim that you are violating your obligation. Similarly, if a strong wind blows and the window opens, you would be obliged to close it. Using an example offered in the text: if everybody is allowed to sing, I have the liberty to sing even if I’m in a coma, for my being in a coma makes it impossible for me to exercise my liberty, but it does not deprive me of the liberty. Opportunity conditions do not operate in the same way as explicit conditions imposed on the emergence of certain deontic consequences. Regarding obligations, opportunity conditions are not conditions for having an obligation in the sense that if they are not satisfied this prevents an obligation from arising. Rather, they are conditions for the possible performance of an action deontically qualified as, for instance, obligatory, in the sense that if they do not verify it will be impossible for you to comply with your obligation, and in certain cases you might offer this as an excuse for your not complying with your obligation.

  • 14 Duarte 2023: 15; online §18.

18If this is correct, opportunity conditions cannot be placed in the antecedent of a conditional norm. Now, in addition to this substantive problem, there is a formal problem in the paper concerning this point. Duarte claims that in a conditional norm, an opportunity condition is “necessary but not sufficient to the obligation”, which is formalized as (o lfh) O lmf, while in a categorical norm “the condition ‘o’ is necessary and sufficient”, which is formalized as o Ps.14

  • 15 See Duarte 2023: footnote 83 and Sec. 3.1 (for his discussion of the material componens of a norm).

19Assuming the “ sign is something like a material conditional, all of this is wrong. Even accepting the (unacceptable) idea of placing the “o” condition in the antecedent of a conditional norm, “o” would not be a necessary but not sufficient condition of the obligation: it would be a necessary condition of a sufficient condition, i.e., a contributory condition (it is curious that Duarte acknowledges this notion footnote but does not mention it in his discussion of the material components of the norm).15 If “o” were a necessary but not sufficient condition, it should not appear in the antecedent but in the consequent of a conditional. And in the case of a categorical norm, “o” would not be a necessary and sufficient condition of the obligation. If it is rightly placed in the antecedent, it would be a sufficient condition, and if it is a necessary and sufficient condition, the connective in the formal representation should be replaced by a biconditional.

6 Opportunity conditions and deontic consequences

20One of the central ideas of the paper is directly related to the question examined in the previous point. Duarte claims:

  • 16 Duarte 2023: 24; online §33.

As follows from the internal possibility condition, the exercise of a liberty is dependent on such possibility: the holder of the liberty to φ can exercise the legal position if she is in a condition to do so. Such internal possibility is, then, a necessary condition for the exercise of a liberty. However, if an impossibility of exercising that position might arise from some limitations of the holder, it can also arise from the action of third parties whenever they defeat the internal possibility of the liberty holder to act.16

21The idea of placing opportunity conditions in the antecedent of a conditional norm in which the deontic modality appears in the consequent, together with the idea that those opportunity conditions may be frustrated by an action of a third party, leads Duarte to conclude that in such a case the third party would not just be

  • 17 Duarte 2023: 24; online §34.

cancelling the exercise; she is, furthermore, denying the deontic fact that the liberty holder is permitted to act. Ultimately, such defeat turns out to be exactly the same as removing that specific liberty holder from the set of PA agents.17

22Hence, if a norm grants me the liberty to sing, and an agent knocks me unconscious preventing me from singing, such an action would amount to a change of the norm, excluding me from the set of holders of that liberty. And this, in turn, makes Duarte claim that

  • 18 Duarte 2023: 2023: 25; online §35.

being permitted is not a sufficient condition to the liberty to be applied (for a token of φ to be the case). And it is incomplete because another necessary condition is required: imposing the secondary addressees to not defeat the internal possibility to act.18

23Even more:

  • 19 Duarte 2023: 2527; online §§36 and 38. Original footnotes are here ommitted.

An example such as the one above also shows that the Hohfeldian liberty ↔ no-right line of correlativity amounts to a violation of Hume’s guillotine: law is effectively changeable (and without power) whenever any member of the SA set wants that to be the case. Any SA set agent is free (apparently under a weak permission) to remove any agent from the PA set, modifying the one originally formulated by the normative authority. However, the same cannot be said when the liberty correlates with a duty not to defeat: with this correlation, law is not changed by a SA set agent; it is violated. So, when a permission is complete, a SA set agent preventing a PA set agent from exercising her liberty is simply breaching a duty […] Therefore, if normative authorities enact complete permissions (actually, mere ‘regulative permissions’), then it follows that the liberty conferred to PA set agents necessarily correlates with a duty not to defeat the internal possibility (held by SA set agents). So, when the internal possibility condition and the counterparty’s co-action are taken into account, it becomes visible that, regarding other agents, tokens of φ are only exercisable if defeating is understood as forbidden. Given the duality of necessity and sufficiency, and being such duty a necessary condition to the deontic completeness of permissions, it follows that a liberty to φ is a sufficient condition for the SA set agents to bear a duty not to defeat.19

24This is incorrect. It is undeniable that in many cases liberties are reinforced by prohibitions on interfering with their exercise, among other mechanisms. But that is just a contingent normative design. “Nude” liberties are not only conceivable but frequent, and in certain cases unavoidable. Think of this boxing example offered by Genaro Carrió in his preliminary note to the Spanish translation of Hohfeld’s work:

  • 20 Carrió 1968: 17-19.

Each fighter has, in front of the other, the privilege of giving him ‘correct’ blows, in the sense that he does not have the duty to refrain from doing so. None of the fighters has that duty and both have the no-right correlative to the privilege of their opponent. But since a no-right is not the same as a duty, each of the fighters can legitimately do everything in his power (without violating any genuine duty) to prevent his rival from exercising the privilege he enjoys.20

  • 21 Duarte 2023: 26; online §37.

25To put it bluntly: the mere presence of a permissive norm in a normative system is in no way a reason to think that another norm prohibiting others to disturb the exercise of the permitted act will necessarily be part of the same system. Duarte’s incorrect conclusion derives from the wrong location of opportunity conditions as conditions that subordinate the derivation of deontic consequences, when they are in fact only conditions for the possible fulfillment of actions deontically qualified. Of course, if you wrongly allocate opportunity conditions in the antecedent of a conditional whose consequent is a deontic modalization of an action, and you admit that third parties may affect those opportunity conditions with their actions, the consequence will be that such agents will affect the emergence of deontic consequences with their actions. As Duarte says, this would amount to an alteration of deontic consequences and, thus, to a modification of norms by unauthorized agents.21 But this is not a consequence of the acceptance of “nude” liberties: this is just a consequence of a deficient reconstruction of the structure of norms. If there is a norm granting me the liberty to sing, and you knock me unconscious, you deprive me of the possibility of exercising my liberty, but you obviously don’t acquire any magical normative power.

  • 22 Duarte 2023: 27; online §38.
  • 23 Duarte 2023: 2526; online §36.

26There is a second flaw in the argument: even assuming that opportunity conditions are necessary for the emergence of deontic qualifications, not just for the possibility to comply with/exercise them, Duarte’s claim that “a liberty to φ is a sufficient condition for the SA set agents to bear a duty not to defeat” it,22 needs another step in the argument. You have to assume that the duty not to defeat the liberty is a necessary condition of the liberty (of course, I would not say “of the liberty”, as Duarte did, but rather “of the exercise of the liberty”). However, what constitutes a necessary condition of the (exercise of the) liberty is not the duty not to defeat, but the fact that it is not defeated by third parties. The only thing you can derive from the assumption that opportunity conditions must be placed as conditions for the emergence of normative qualifications (“o Ps” in Duarte’s formalization), and the additional idea that third parties may alter such conditions with their conduct, is that a necessary condition (of a sufficient condition) of the existence (exercise) of a liberty is that third parties do not defeat those conditions, not that they are under the obligation not to defeat them. The latter requires the (contingent) existence of another norm in the system. Therefore, the only one that is “violating Hume’s guillotine” here, as Duarte put it,23 is the author himself.

7 Management of the results of action

27Concerning duties and claim-rights, Duarte writes:

a duty assigned to a PA set agent correlates with a permission held by the claim-right holder, showing that this correlativity line also presents two contradictory deontic modalizations.

  • 24 Duarte 2023: 38; online §58.

(lxxxv) considering the object and the deontic modalization of the claim-right position, the N expressed by ‘it is mandatory to pay 500 florins (£ 500) per month to personal employees’ can be formalized as: ‘(ip O{PA} £ 500/month) (P{SA} mra)’, where ‘mra’ stands for to ‘manage the result of action’; this means, consequently, that SA agents are prima facie allowed ‘to accept’ and ‘to not accept’ the result of the action to be carried out by PA agents.24

And Duarte adds

  • 25 Duarte 2023: footnote 89.

By ‘managing the result of action’ it is meant the adaptative co-acts carried out by the claim-right holder towards the actual or future exercise of the main action by the duty bearer (regarding the result of such action).25

28This idea that claim-right holders always have a bilateral permission to accept or not accept the result of an obligatory action is, again, just a contingent fact. For instance, parents may be imposed with the duty to take care of their young children, while children do not enjoy the liberty of accepting or refusing the results of such care. Similarly, there are many other scenarios where claim-right holders have a duty to accept the results of obligatory actions.

8 A misstep in formalizing norms of competence

29Duarte conceives of competence norms as complex regulative+constitutive rules:

  • 26 Duarte 2023: 44; online §68.

(civ) a competence norm, therefore, is a dual composition of the possibility to act and its own permission; following the same notation used here to formalize norms, Sarastro’s power conferring norm can be initially presented as ‘ip p P{Sarastro} dc {SA}’.26

I will not discuss here the widely debated question concerning the status of power-conferring rules or competence norms. However, if you accept the basically constitutive nature of competence norms, as Duarte seems to, then you should accept that granting competence and regulating the exercise of such competence are two different and independent things. Consider the following example: in certain jurisdictions lawsuits must be signed by agents with a law degree to be valid. Judges must have a law degree to be appointed as such, but they are forbidden from practicing as lawyers. Now, if a judge signs a lawsuit, the lawsuit is valid but the judge has violated her prohibition. Duarte seems to acknowledge the possibility of such cases when he claims:

  • 27 Duarte 2023: 44; online §69.

The distinction between the generic action and the individual acts by which the law is effectually changed is, however, decisive to understand a competence norm as a constitutive permission. And this distinction is decisive because being (generically) permitted to produce deontic consequences does not necessarily mean that all the tokens of such action are permitted as well: nothing inhibits the system to have other norms forbidding some exercises of the power at hand. Therefore, if a power conferring norm (generically) allows the production of deontic consequences, each of these consequences can be limited by the eventual existence (within the set) of other norms prohibiting tokens of that action.27

But if you admit the possibility of regulative norms forbidding some exercises of a legal power, this implies that not all of them are necessarily permitted, as follows from the formalization offered.

9 Unwarranted reduction of strong incompetence and immunity

30Concerning incompetence/immunity, Duarte writes:

  • 28 Duarte 2023: 4950; online §78.

A totally different scenario is the one that occurs when a normative authority enacts what can be wrongly called as a ‘norm of incompetence’: when a normative authority states that a body or a person does not have power (and never did). A significant aspect justifies the said difference: such ‘norm of incompetence’ is not a norm at all. Since no deontic consequences are being produced (and no previous positions are being changed), an enactment of this sort is merely a descriptive sentence about the law: it is being said that the body or the person at hand lacks power. Thus, officially stating ‘incompetence’ is just a descriptive utterance about the absence of a competence norm (signalling ‘no power’).28

And he adds:

  • 29 Duarte 2023: 5051; online §79.

It is precisely for the reason that the absence of power has no normative basis (and cannot be assigned to any legal norm whatsoever) that it is claimed here that Hohfeldian disabilities and immunities are no other than an expression of a confusion between norms and normative propositions: when Hohfeld makes reference to a disability he is not pointing out a legal position, but merely describing its absence (in this case, power). And this seems to be quite clear. Once it is accepted that there are no positions without norms and that no norm can confer a position opposed to one dependent on constitutivity, it has to be accepted as well that the word ‘disability’ just plays the role of a normative proposition,29

and

  • 30 Duarte 2023: 5051; online §80.

Given Hohfeld’s conception of correlativity as a material equivalence, the ‘disappearance’ of disabilities as legal positions has to imply the same consequence to immunities. And such consequence seems to be right. As a matter of fact, it is so deontically empty to not have power as it is to be in the correlative position: there is no possible normative basis regarding not producing and to not being targeted by deontic consequences.30

  • 31 Arriagada Cáceres 2020, 2021a and 2021b.

31These ideas are at least debatable. If legal positions depend on the content of legal systems and thus involve dealing with normative propositions, and if it makes sense to distinguish strong and weak permissions when it comes to regulative norms, a parallel distinction can be made between strong and weak incompetence/immunity, even if competence norms are conceived of as basically constitutive. This idea has been sharply defended by María Beatriz Arriagada Cáceres.31 It is one thing to say that agent x is incompetent regarding agent y (and y has an immunity regarding x) concerning certain normative action (NA) according to normative system (NS) in the sense that there is no norm in NS that grants x the legal power to alter y’s normative status (weak incompetence/immunity). It is quite another thing to say that agent x is incompetent regarding agent y (and y has an immunity regarding x) concerning a certain NA according to NS in the sense that there is a norm in NS that makes x incompetent to alter y’s normative status (strong incompetence/immunity).

32There is nothing strange in the idea of norms making certain agents incompetent for certain normative actions, or granting explicit immunities. Suppose a constitutional norm that denies the executive the power to create criminal offences. That would not be a mere negative incompetence, and the norm in question would not be a declarative statement. Or a constitutional provision that makes lower ranked authorities incompetent to enact norms depriving citizens of their constitutional rights. That would not be a mere negative immunity, and the norm in question would not be a declarative statement.

33The relations between these different notions are the same as those between strong and weak permissions: an agent may be incompetent in the negative sense but not in the positive sense regarding a certain normative action in a given normative system, in which case the system of competence norms will be incomplete regarding such normative action. And an agent may be incompetent in the positive sense but not in the negative sense regarding a certain normative action in a given normative system, in which case the system of competence will be inconsistent regarding such normative action.

34Accepting these distinctions provides a more sophisticated framework for the analysis of legal positions. Rejecting them forces us to read a number of legal provisions as merely declarative statements with no normative consequences. But how can one justify interpreting authoritative statements like the ones mentioned as merely declarative and devoid of normative effects? And what would be gained with such a reductive approach?

10 Conclusion

35I believe that Duarte’s paper presents, as I already said, many interesting insights and deserves attention. However, it would benefit from addressing the remarks presented here and reconsidering some of its central tenets. In particular, Duarte’s quest to find an independent deontic content for all legal positions leads to the defense of problematic ideas and the dismissal of some relevant notions.

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Bibliography

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Notes

1 Duarte 2023: 7.

2 Duarte 2023: 16; online §20.

3 Duarte 2023: 16; online §20.

4 Duarte 2023: 18; online §23.

5 Alchourrón 1969.

6 See Alchourrón and Bulygin 1971: 177.

7 Duarte 2023: 14; online §17.

8 Duarte 2023: 14; online §17.

9 Duarte 2023: 14–15; online §18. An original footnote is omitted.

10 Duarte 2023: 15; online §18.

11 Duarte 2023: 15; online §18.

12 Von Wright 1963: 74.

13 Duarte 2023: 14–15; online §18.

14 Duarte 2023: 15; online §18.

15 See Duarte 2023: footnote 83 and Sec. 3.1 (for his discussion of the material componens of a norm).

16 Duarte 2023: 24; online §33.

17 Duarte 2023: 24; online §34.

18 Duarte 2023: 2023: 25; online §35.

19 Duarte 2023: 2527; online §§36 and 38. Original footnotes are here ommitted.

20 Carrió 1968: 17-19.

21 Duarte 2023: 26; online §37.

22 Duarte 2023: 27; online §38.

23 Duarte 2023: 2526; online §36.

24 Duarte 2023: 38; online §58.

25 Duarte 2023: footnote 89.

26 Duarte 2023: 44; online §68.

27 Duarte 2023: 44; online §69.

28 Duarte 2023: 4950; online §78.

29 Duarte 2023: 5051; online §79.

30 Duarte 2023: 5051; online §80.

31 Arriagada Cáceres 2020, 2021a and 2021b.

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References

Electronic reference

Jorge L. Rodríguez, “Legal positions reexamined”Revus [Online], 53 | 2024, Online since 23 January 2025, connection on 26 March 2025. URL: http://journals.openedition.org/revus/10667; DOI: https://doi.org/10.4000/135kw

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About the author

Jorge L. Rodríguez

Professor of legal philosophy at the National University of Mar del Plata (Argentina)

Email: jorgerodriguez64@yahoo.com

By this author

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Copyright

CC-BY-SA-4.0

The text only may be used under licence CC BY-SA 4.0. All other elements (illustrations, imported files) are “All rights reserved”, unless otherwise stated.

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