- 1 See Duarte 2023 and Rodríguez 2024.
1 Rodríguez had the consideration to make public, following a happy initiative from Revus, a blind review he provided for my paper “Rights as formal combinations of normative variables”.1 At the time, the journal challenged me to reply, which I did. With some updates and changes, that response forms the content of the following pages. Accordingly, the response now published is organized in the very same way: it follows the structure and sequence of Rodríguez criticisms. Back then, he built his review on eight specific points, claiming there were various flaws in the paper. Each one of those eight points will be addressed here in an overall attempt to show that the flaws Rodríguez pointed out are somehow, and for very distinct reasons, ungrounded.
- 2 Rodríguez 2024: §2 online.
2Rodríguez starts by claiming that although the difference between norms and normative propositions is often mentioned in the paper, it is not clearly used and many confusions follow from a possible misunderstanding of their difference. His first example of such an alleged confusion is that on paper, bilateral permissions are said to contradict obligations and prohibitions, and such propositions are only valid in the realm of norms and not in norm propositions. He then adds that the analysis of legal positions seems concerned with their use in norm propositions and that the paper describes them in the specificity of a given legal system. He concludes this point by saying that, in the paper, no sharp difference is made between strong and weak permissions and, specifically, that the Toro Sentado example shows how strong permissions are autonomously valuable.2
3It is my firm opinion that there is no confusion between norms and normative propositions and, in this aspect, that the analysis of legal positions does not differ from the analysis of norms. When someone says that “a permissive norm contradicts a prohibition” they are describing something that happens in the deontic realm in the same way as when saying that “the duty to φ contradicts the liberty to φ”. These sentences are descriptive, but the content to which they refer is prescriptive in both cases. In legal science, one uses the perspective of the observer, which means that the outcome is necessarily a proposition about the law (either in general or regarding a specific legal system). This does not mean, however, that the object of such proposition lacks normativity. And this is as valid for norms as it is for legal positions. Saying that “ф holds a claim right” describes a specific legal position held by ф. Yet, at the same time it says that from her perspective ф is entitled to the result of an action carried out by the correlative agent (the object is normative). Accordingly, nothing prevents the statement by which a bilateral permission contradicts an obligation. It suffices to make explicit (as it was) that the perspective is the one of norms.
4Moreover, the paper does not concern the deontic status of actions according to a given legal system, but the deontic status of actions given the different deontic modalizations of such actions, which also means that it is totally independent from any given legal system. A mandatory norm will always confer a duty regardless of the legal system at hand. When one says that “a mandatory norm confers a duty”, it is the same as saying that the agent’s deontic position is to be obliged to do something. And this has nothing to do with a given legal system. It does happens in a legal system, of course, but in the sense that it can happen in all of them (it regards invariants of legal systems).
5On the other hand, the paper is totally assertive about the difference between strong and weak permissions, including the relevant fact that it even withdraws distinct legal positions from those two kinds of permission: “liberties” for strong permissions and the so called “vacuum liberties” for weak permissions. What is said, instead, and I think it is quite undeniable, is that legal systems work with bilateral permissions (at least by default), something that follows from consistent arguments related to the semantic notion of permission (and permissive verbs) and from the very impressive argument Ratti recently presented.3 And, evidently, the above statement about the regularity of bilateral permissions in legal systems does not mean that those systems are complete: it would be absurd to claim such a thing.
- 4 On the example, Guibourg, Echave and Urquijo 2008: 155.
- 5 Rodríguez (2024: §4 online) also speaks here about “a weak permission from a higher level”. The sta (...)
6This brings us to the problem related to the value of a strong permission when compared with a weak one. In the paper it is not denied (and it could not be) that a strong permission has autonomous value and that different effects follow from a strong permission (when compared with the mere absence of an obligation). On the contrary, many differences are taken from such a distinction. However, the Toro Sentado example is not a good way to show those differences4. Evidently, when Toro Sentado enacts the strong permission, it follows that the lower authority becomes constrained to forbid the action previously permitted. But such constraint does not follow from the permission; given that the permission by itself only creates a contradiction, the constraint strictly follows from lex superior. It is only this norm of conflicts that sustains the prevalence of the permission. Moreover, such effect is also inconclusive: the system is supposed to have another norm saying which consequences follow from that prevalence (usually, the removal from the system). Thus, it seems that the Toro Sentado example is, on this matter, completely useless.5
- 6 Rodríguez 2024: §5. online.
7Rodríguez’s main point here is that norm individuation, as a theoretical issue in legal science, is a rather useless and hardly illuminating topic. He also argues that what is needed is a logical analysis of the structure of norms, and not to adopt a certain position regarding the problem of norm individuation. For him, knowing what a complete norm is seems totally pointless.6
- 7 Also sceptical about the relevance of norm individuation, Dworkin (1972: 885) and Bix (2009: 137).
8Rodríguez here offers just a personal opinion about the theoretical importance of a topic. Fair enough. However, and even considering that he is not an isolated voice on the matter, it is difficult to understand how one can sustain such an opinion.7 As a matter of fact, to know what a norm is as a unit of a normative system is absolutely essential to carrying out many of the tasks assigned to legal science: without such scientific presupposition, no classification of norms can be correctly conceived and no consistent body of knowledge can be built on a matter such as conflicts of norms. How is it possible to say that norm X conflicts with norm Y if one does not know if they are one or two norms? This is, for instance, what underlies the relation between general and special norms. Only when it is assumed that a negative condition is the antecedent of “another” norm, which is a norm individuation choice, can one say that a special norm is a different unit from the general one. This is just one very simple example, but many others could be given to show that a vital part of our theoretical constructions about normative systems are inevitably dominated by solutions given to problems that are effective problems of norm individuation.
- 8 Although it must be said that law is human-made and therefore built with some theoretical assumptio (...)
9Moreover, and keeping with the example of general and special norms, it is even possible to say that normative systems are built by normative authorities assuming options of norm individuation. When a norm authority enacts lex specialis, such authority is exactly saying that one norm (different from the other) prevails over another (different from the first one). That is, such authority is clearly assuming that a special norm is, by itself, a complete norm. Therefore, ignoring the topic, as Rodríguez does, is also to invalidate the understanding of some relevant presuppositions normative systems contain regardless of our scientific assumptions.8
- 9 Rodríguez 2024: §5 online. On the many problems that norm individuation poses, Duarte 2024a: 337. O (...)
10I do believe that disregarding norm individuation will only lead to confusion, a lack of clarity, and inaccuracy. In my opinion, a solid and consistent future for legal science is totally dependent on a large consensus within the epistemic community about what forms a norm as the unit of a normative system. And such path also passes through a shared opinion about the logical structure of norms, which is no other than the “morphological scheme” of a norm and, consequently, an expression of theoretical options formulated within the field of norm individuation. To say, as Rodríguez explicitly does, that a logical analysis of the structure of norms is needed and norm individuation is not, seems to be praising something and condemning it at the same time: they are one and the same (at least, they are the two faces of the very same coin).9
(i) if one conceives the logical structure of a norm as “ip ⇒ P {PA} φ {SA}”, what is being said is that a norm entails an action, a deontic modalisation of such action, an antecedent and two sets of addressees; and this is no other than a proposal of norm individuation.
(ii) the same would be true with any other logical structure; for instance, the mere idea of “q → Op” (or, alternatively, in the insular conception “O (q → p)”) is also an evident proposal of norm individuation; although it is a very incomplete one, it assumes clear choices of individuation.
- 10 Bentham 1970[1782]: 156.
- 11 In his own words, after analysing the elements of a norm: “we are now prepared for endeavouring to (...)
11There is only one thing left to stress — it was not in vain that Bentham gave so much attention to norm individuation (more than a hundred pages in 1782).10 With his outstanding (nearly prophetic) vision, he clearly saw that there could not be any successful organization of the legal materials enacted by normative authorities without a precise definition of what a complete norm is and how one should differentiate one norm from another.11 And, as usual, he was right.
- 12 Rodríguez 2024: §5 online.
12Rodríguez makes a very small point here merely questioning the formalization of the conditional; specifically, the use of the sign ⇒. More than making an explicit critique, Rodríguez points out the fact that some explanation should have been given for it.12
- 13 Van der Torre and Yao-Hua Tan 1997: 82; Governatori, Rotolo, and Sartor 2005: 30.
13The ⇒ sign is usually used to represent a defeasible conditional.13 Since nothing was said about it in the paper, it follows that it was just the adoption of a convention.
14Even though it is a very small point, it is one with large scope and full of consequences. Assuming the defeasibility of norms, expressed by a specific symbol, amounts to stating that each and every norm (at least, first-order norms) can enter into a conflict and can be defeated. Since legal positions are given by norms, it therefore also means that all legal positions (at least, first-order ones) are, by definition, defeasible. And this is quite relevant in the underlying theoretical structure of the paper: it says that the holder of a legal position is exercising it in a lawful manner if and only if such position, whenever in conflict with another, somehow prevails.
- 14 Applicability is here used in the sense of “internal applicability”, as in Moreso and Navarro 1996: (...)
15Accordingly, one of the most significant implications of using the ⇒ symbol is that everything that is said about norms only concerns their application to a case and not the regulation of such case: the prima facie character of all norms (at least, first-order norms) means exactly that filling the antecedent is only a sufficient condition of applicability and not of regulation.14 So, one norm can be called to a case and be exempted of its regulation if another (conflicting one) is called as well and prevails over the first. The relevancy here is that under the norm-based approach this is also valid for legal positions: no legal position is “effective” until an “all norms considered” assessment (i) establishes the inexistence of conflict, (ii) or states a prevalence.
- 15 Rodríguez 2024: §7 online.
16Rodríguez’s point here is threefold. First, he says that “opportunity conditions” are not conditions like the others. He gives the example of a norm such as “if it rains, you have the obligation to close the window” in which even if the window is closed and it is raining one remains obligated because the window might open at any moment. He also uses an example from the paper about the liberty to sing, saying that such liberty is fully applicable to a person in a coma even though such a person is absolutely incapable of singing. Second, he says that opportunity conditions cannot be placed in the antecedent of a norm; inversely, they should be placed in the consequent. Third, he says that the opportunity condition is neither solely a necessary nor sufficient condition of an obligation; it is, rather differently, a mere contributory condition (a necessary condition of a sufficient one)15.
- 16 External opportunities are a totally different thing since they have nothing to do with “ought impl (...)
17Rodríguez did not pay full attention to a relevant detail transversal to the whole paper, namely, that norms are not considered as having a “general” opportunity condition (a condition related to all opportunities to act), but only a specific one that was called the “internal possibility condition”; that is, a condition strictly related to the physical and mental capabilities of the primary agent to perform the action foreseen in the consequence. The reason for this reduction rests on the fact that the “internal opportunity condition”, unlike any condition of opportunity (external to law), directly follows from the axiom “ought implies can” and, consequently, expresses the relevant and obvious fact that any exercise of a regulated action depends on its subjective possibility. Since a norm cannot demand an agent to do something impossible without contradicting “ought implies can”, such a norm cannot be applicable whenever the action is subjectively impossible. And this is more or less clear: if the agent cannot carry out a token of the action foreseen, then such an act is not performed and there is nothing to be under the deontic modalisation adopted for the action at hand. It is only when the agent can carry out that token (there is an internal opportunity) that the norm at hand is in the condition to say “it is forbidden, mandatory, or permitted”.16
18Accordingly, the “rain and window” and the “liberty to sing in a coma” examples cannot be assimilated as expressing occasions with similar relevance to law. Rodríguez is right regarding the first: if it is raining, the agent is evidently obliged to close the window whenever it is open (or for some reason it is closed but then opens). But he is wrong regarding the second: if the agent is in a coma she cannot sing and, therefore, no token of the regulated action will be the case. Therefore, there is nothing to regulate and the permission to sing is simply not applicable. It is clear that the agent remains a holder of such liberty, but being such a holder is a natural consequence of a norm in force in the normative system at hand: the agent is still a member of the set of primary agents of such norm and, consequently, holds the liberty to sing. Yet, holding the liberty through a norm that is in force in the system does not necessarily mean that such norm is applicable when the agent cannot carry out a token of the action-type. Such a norm is not triggered because the regulation it contains has no empirical object: no token can be performed by the primary agent.
19A condition of a conditional belongs, by definition, to its antecedent, not to the consequence. It cannot be, as Rodríguez claims, that a necessary condition for the possible performance of an action (as he labels it) should appear in the consequence. Although Rodríguez is speaking about general opportunity conditions, given the misunderstanding mentioned above, the mere idea of a condition belonging to the consequence is very difficult to accommodate considering the universal conditional scheme of norms.
- 17 Von Wright 1963: 74.
- 18 It is another thing to see those conditions as related to obtaining the result of the main action t (...)
20In any norm with more than one condition, each condition is a necessary but not sufficient condition of the consequence (but they are jointly sufficient). Assuming, of course, that they are cumulative, as was the case with the examples in the paper. And the “internal possibility condition” is no different from any other condition possibly expressed by the normative authority: if the agent is obliged to close the window when it rains, then her ability to act is a necessary condition in the same way as raining is (the norm is only triggered if they are both the case). But if such a norm only depends on the “internal possibility condition” (a categorical norm in von Wright’s sense), then such condition is necessary and sufficient.17 This seems to be plain and simple at the level of a norm being triggered and applicable to a case (not applied, given its defeasibility).18
- 19 For the example, see Carrió 1968: 17.
21In this point, Rodríguez attacks the idea that permissions imply (or can imply) a duty to not defeat the internal possibility of exercising the action foreseen in the consequence. He mainly says that such reinforcement of the permission is strictly contingent and that nothing prevents the system from having “nude” permissions (in which the above duty does not exist). He then cites Carrió’s example of two boxers fighting each other, a normative scenario in which each fighter is totally free to punch the other and no duty to prevent such action exists.19 Rodríguez makes a second criticism in this point: he says that the exercise of a liberty is viable, not if third parties have a duty to not defeat the possibility to act, but if they actually do not defeat it as a matter of fact. His idea is that such duty is not derivable from the permission in itself, and since it depends on a specific norm conferring the obligation not to act, he argues that the duty to not defeat challenges Hume’s guillotine.
- 20 Given that it is an agent selected by the permission in itself that is making the permission useles (...)
- 21 Specifically, as a toleration also imposed on others. See, von Wright 1963: 89.
- 22 And strictly seen as given by the permission in itself: once permissions are understood as “complet (...)
22It is clear that a (simple) permission to do φ does not entail, by itself, a duty to not defeat the possibility to φ. This is clearly stated in the paper. Moreover, that such duty would be given by a third norm, which would evidently be a contingent normative scenario, was never at stake. However, such a conception of (simple) permissions in which the action of the primary agent is not protected by such duty, shows a rather “incomplete norm” and leads permissive norms to be somehow useless (if a third norm protecting the liberty does not exist, something quite usual in normative systems). Any agent, and even an agent foreseen in the set of secondary agents, can freely prevent the primary agent from acting without any violation of the law (a situation of “normative self-defeasibility”).20 It is for this reason that, as was claimed, our understanding of permissions probably has to change and has to accommodate the old idea (von Wright’s) that a permission is effectively a prohibition directed to third parties, normatively granting a sort of freedom to choose and act: secondary agents are under the duty to not defeat the possibility primary agents have to act.21 And it was clearly stated in the paper that the completeness of permissions (acquired with the duty to not defeat) works at the conventional level of norm individuation: it is a proposal based on the absurd opposite alternative of having to admit that permissions do not regulate action within their very own correlativity line. This means therefore, that Hume’s guillotine is only put in danger by the current conception of permissions, in which the epistemic community seems to easily accept that they are by definition “self-defeasible”. So, Rodríguez is doubly mistaken here: (i) the duty not to defeat was not conceived as being given by a third norm, and (ii) the completeness of permissions (given by such duty) is not a matter of logical entailment but rather a strict matter of (possibly shared) conception.22
23Rodríguez’s use of Carrió’s example is also problematic. It is a very peculiar (and interesting) example because the exercise of the liberty consists exactly in the removal of the (exercise of the) duty to not prevent the action. But to explain the example under the “complete conception” of permissions it is relevant to understand that the duty to not defeat has adaptative content. That is, the object of such duty depends on the factual possibility of preventing the mental and physical abilities required to realize the specific action foreseen (the co-action of secondary agents is always unspecified and fully depends on the primary action effectively adopted by the primary agent). Accordingly, when the primary agent’s action is, roughly speaking, to destroy the exercise of the duty held by the other agent (to punch him), then such duty becomes almost empty under the penalty of a contradiction (you are permitted to do something that others are obliged to prevent). In this very specific (and rare) kind of permission, the duty to not defeat becomes almost irrelevant because of its natural emptiness (if one is allowed to punch someone else, then the latter agent may not defeat the former’s freedom to punch). It is also important to see that both fighters are exercising the same liberty: both of them are permitted to punch each other and each is forbidden from defeating the freedom to punch. So, nothing in the example denies the workability of the correlativity line given by “complete permissions”: “liberty ↔ duty to not defeat the internal possibility”.
24Here, Rodríguez criticizes the proposition that the holder of a claim-right has a position with autonomous content, also denying such position to be under a permission and, consequently, to be a form of managing the result of the action carried out by duty bearer. He says that in many normative situations the claim-right holder is obliged to accept the result of that action, and he provides the example of parents and minor children, wherein the latter cannot refuse the actions performed by the former under their duty to take care of them.
25In a scheme of legal positions, as exposed in the paper, in which each secondary agent also contributes to achieving the result of the action to be carried out by the primary agent, it naturally follows (i) that the position of the former also has an autonomous content, and (ii) that such position is also under a specific deontic modalisation. Accordingly, it was claimed that a claim-right holder manages the result of such action since she is under a (bilateral) permission regarding her own (autonomous) action: given that duty bearer and claim-right holder have “contrary” positions (actions), the holder of the claim-right is permitted to accept or refuse the result of the action the duty bearer is obliged to carry out. In the scheme of legal positions presented, all this follows from a single norm that imposes a duty on the primary agent, in which the permission to the secondary agent is merely implied (giving her the management of the result of the primary action).
26On the other hand, this is the only way to explain the “space” the claim-right holder has to “waive” the duties of correlative agents (without power). For instance, think about the constitutional norm that imposes inviolability of correspondence: it is exactly the implied permission of the claim-right holder that allows her to give the duty bearer access to her mail. But this is just an example. Rigorously, the same applies on a norm individuation basis to all obligations whose exercise by the duty bearer is disjunctively experienced by the claim-right holder.23
27Rodríguez’s example here is problematic since minor children do not have the capacity to exercise the permission claim-right holders have and, moreover, such children are represented by their parents exactly to do so. So, even if holding a permission (as they do), they cannot exercise it. Yet, if one thinks about a “major child” it becomes clear that an 18-year-old is effectively allowed to accept or refuse what follows from the duty to take care.
- 24 And, again, it becomes very clear how norm individuation is relevant for the present subject matter
28It is also important to note that if an agent is obliged to accept the result of an obligatory action, such position does not come from the norm at hand, but from another norm (creating a conflict of legal positions). Two agents in the same correlativity line cannot have two duties coming from the very same norm (under the framework of norm individuation adopted or any other minimally reasonable framework). Two directed duties in the same correlativity line necessarily implies two norms. One can think, for instance, about the duty to not torture. Under such a prohibition, the claim-right holder may “waive” a token of the duty and allow the duty bearer to torture her. But it is possible to sustain that she is also forbidden from doing so. Yet, this is only sustainable if in the system there is a norm that forbids an agent from consenting to her own torture (human dignity, for instance, under some conceptions).24
- 25 Rodríguez 2024: §10 online.
29Rodríguez claims here that once one distinguishes between power conferring norms and norms on the exercise of power, one has also to admit that there might be norms forbidding some exercises of such power. Therefore, since those exercises are forbidden, he sustains that it is senseless to generally formalize power conferring norms as permissions.25
30Once power conferring norms are differentiated from norms that regulate the exercise of power, as is sustained in the paper, then one is speaking about (at least) two different norms. Nothing prevents the power conferring norm to be a permission and the norm that regulates the exercise of power to be a prohibition (it is actually quite usual in normative systems). It just follows that the type of action “producing deontic consequences”, typical of competence norms, is overall permitted, but a specific token of such action is forbidden (in the same way as the action-type of eating can be generally allowed but forbidden when doing it inside movie theatres).
31The existence of these prohibitions regarding some specific exercise of power does not deny that the power conferring norm is, in itself, a permission, which is the sole issue at stake here. So, the fact that some agent ф is forbidden from creating deontic consequences on electric bikes does not prevent the fact that such agent holds the power to create deontic consequences on bikes in general and, at the same time, that such competence norm (the one in “agent ф is competent on bikes”) is, in its own individuation, a permission (allowing agent ф to produce any deontic effects whenever there is no specific prohibition to a more specific subjacent matter). Accordingly, formalizing norms of competence as permissions just signals that these norms, regardless of other norms preventing specific ways of exercise, are general permissions for the type of action they foresee.
32Rodriguez states that there is nothing strange about norms making certain agents incompetent for certain normative actions, or norms granting explicit immunities. By saying this, Rodríguez challenges the idea expressed in the paper that the second correlativity line in the Hohfeldian second-order table of legal positions is a confusion between norms and norm propositions. While denying this claim, Rodríguez affirms that disabilities and immunities are as effective legal positions as any others and he gives examples of norms that would confer them.
33In the norm-based approach, to hold a legal position is to be a member of a set of agents a norm contains: that is, an agent holds a legal position if and only if there is one norm in the system that foresees such agent as a member of a set of agents (primary or secondary). And this makes complete sense: since a legal position is a deontic “standpoint” where an agent is (and in relation to others), there cannot be a legal position without a norm that defines what such “standpoint” is (and, in that way, which relation the agent has with others).
34The strategy underlying the norm-based approach leads, then, to two legal positions in each correlativity line given by each type of norm (prohibitions, impositions, permissions, and power conferring norms). It also leads to the negation of (alleged) legal positions that, in a Hohfeldian style, are not norm-based but merely constructed under logical moves (such as negations).
35This is the case with second-order norms (competence norms) and specifically when they do not exist in the system. To support the second, second-order Hohfeldian correlativity line, one needs a norm capable of conferring disabilities and immunities. It is not enough to say that a disability is a negation of a power and that an immunity is a negation of a liability: one has to find a normative way in which such positions can be norm-based (conferred by a norm).
- 26 For more detailed explanations of these arguments, see Duarte 2024b: 407. On the other hand, nothin (...)
36As the paper showed, the best possibility would be a “norm of incompetence”, but there is no such a thing in normative systems. If a normative authority enacts “agent ф is not competent on bikes”, what such authority enacted was a mere proposition about the law, describing the nothingness of not being competent: agent ф was incompetent and keeps being so after that enactment (no changes were produced in the system). The same is valid for real competence norms: when the authority enacts “agent ф is competent on bikes”, it does not follow that all the others hold a disability. Such power conferring norm only confers two legal positions: a power to agent ф and a liability to all the others (or to those that are in the set of secondary agents). Indeed, all others who face agent ф are incompetent; but such feature is only the negation of power and the description of not having power. It is in no way a normative attribution of a disability.26
- 27 I am not the holder of a legal position when no norm exists in Portuguese law conferring me the pow (...)
- 28 Rodríguez (2024: §11 online) and Arriagada (2020: 9) are defending weak immunities. This defence is (...)
37One of the central premisses here is that power conferring norms are constitutive: they foresee an action-type (to produce deontic consequences) that would be impossible without the norm. Thus, without such a norm, nothing capable of changing the legal system exists: the absence of a power conferring norm is just an absence (a “legal nothingness”).27 And this is why it seems puzzling to speak about weak immunities. Being power constituted, how can the absence of power give to third parties something following from the no constitution of that power? What is actually being claimed is the attenable idea that, because I have no power to change the Portuguese Constitution, all the others hold a legal position towards me (an immunity). In other words, what is being said is that, despite the absence of a norm, there are still legal positions.28 And if this seems to work under the Hohfeldian scheme of negations, it does not surpass the norm-based approach: here, it just remits disabilities and immunities to mere propositions describing a “legal nothingness”.
- 29 Which is a consequence precisely coming from the constitutivity of power conferring norms. Without (...)
38Rodríguez tries to give examples of norms conferring immunities. But his examples do not succeed because they are just expressing the usual confusions between immunities and claim-rights, or with mere declarative statements. His first example is a constitutional norm denying the executive the power to create criminal offences. This is a clear case of a declarative statement: if the executive was never constituted with the power to create criminal offences, from such constitutional enactment no changes have been made in the system; the executive was and keeps being incompetent. Therefore, the constitutional “norm” is just describing that the executive remains powerless as it always has been. If for some reason the executive creates a criminal offence, the invalidity of such norm follows from the fact that there was no power (and not from “violating” the constitutional statement).29
(iii) the constitution gives powers {a, b, c} to the legislative, powers {d, e, f} to the executive and powers {g, h, i} to the judicial; the constitution also has the sentence “the executive has no powers on c (or on x)”; such sentence just describes the fact that no competence norm empowered the executive on that matter.
(iv) the executive never had any power on “c” (or on “x”) and keeps being powerless on the matter, which means that no deontic consequences follow from such sentence; the opposite of a constituted normative situation is just its absence: the executive is in a “legal nothingness” (not holding a disability).
39His second example is a constitutional norm that makes lower ranked authorities incompetent to enact norms depriving citizens of their constitutional rights. If the normative scheme here is similar to the one above, the same solution follows: it is a mere declarative statement. But if the scheme is that those lower ranked authorities are forbidden from enacting norms depriving citizens of their constitutional rights, then it is a prohibition and such citizens hold a “normal” claim-right against those authorities (prohibitions are first-order norms and they confer claim-rights). Thus, it seems that Rodríguez did not provide a viable example of a “norm of incompetence”. Yet, and being completely fair, it is not easy to give an example of something that does not exist.