• 1 Alchourrón & Bulygin 1997, 1981, 1984 and 1989. See also Bulygin 1988.
• 2 I find Alchourrón and Bulygin’s terminology (“hylétic” vs. “expressive” where the first term derive (...)
• 3 I do not deal with such implications in this paper. Moreover, I do not deal with the relationships (...)

1According to Carlos Alchourrón and Eugenio Bulygin,1 the history of legal philosophy is criss-crossed by two competing conceptions of norms, that they name the “hyletic” (i.e., semantic) and the “expressive” (i.e., pragmatic) conception respectively.2 Each of them has different implications for the relationship between norms and logic.3

• 4 This view is widespread within Italian analytical legal philosophy of 20^th century. See, e.g., Scar (...)

2(1) On the hyletic conception, norms are semantic, proposition-like, entities. Both, norms and propositions are meanings, i.e., purely “abstract” entities. While propositions are the meaning-contents of cognitive or descriptive sentences, norms are the meaning-contents of prescriptive (normative, directive) sentences.4

• 5 Cf., e.g., von Wright 1963: 116 ss). See also Searle 1969 and, most of all, Kelsen 1981 [1962], 198 (...)
• 6 According to the pragmatic conception, the semantic content of a prescriptive act is but a proposit (...)

3(2) On the expressive conception, norms are pragmatic entities, since they are the output or result of prescriptive speech acts.5 The nature of such an output, however, is far from clear. It seems that the word “normative” could refer only to certain speech acts, not to their products that have nothing specifically normative about them, and whose nature is not well defined.6

• 7 Von Wright 1963: 107.

4According to Alchourrón and Bulygin’s presentation, these two conceptions claim to offer a solution – two incompatible solutions, indeed – to one and the same problem: in von Wright’s language, “the ontological problem of norms”.7

• 8 Partially independent, since the solution of the second problem necessarily conditions the solution (...)

5On a closer view, the so-called “ontological problem of norms” seems to be a conjunction of two different (and partially independent) problems:8

• 9 A suggestion in this sense can be read in Mendonca 2012.

6Both problems are by and large discussed in the works of von Wright, Alchourrón, and Bulygin, as well as Kelsen, Klug, and Ross. Obviously, the first problem concerns what could be labelled as a “genetic” issue, that is, the process of the production of norms: how are norms “born”, how do they come into existence? The second problem, on the contrary, raises an issue concerning the product itself: what kind of entity is the product of the process of the production of norms?9

• 10 The first answer is connected with legal positivism, while the second is connected with (some) natu (...)

7The first question seems to admit two (and maybe only two) competing answers: (a) norms acquire existence because of some kind of fact; (b) norms exist independently of whatever empirical fact.10

• 11 In this context, the term “sentence” is used not in the sense of sentence type, but in the sense of (...)
• 12 See Alchourrón and Bulygin (1989) who distinguish “norm-communication” (which presupposes that ther (...)

8The second question too seems to admit two alternative answers, prima facie independent of the preceding ones: (a) norms are sentences;11 (b) norms are the meaning-contents of sentences.12

• 13 The two conceptions are not incompatible as conceptions of norms. I do not discuss the issue of whe (...)

10If I am right, then, after all, the two conceptions are not necessarily incompatible.13

• 14 According to Troper (1989: 53) such a product is but a command.

11The subject of the pragmatic conception is the process of production of norms, but – at least according to Alchourrón and Bulygin’s formulation – it has nothing to say about the nature (the “ontology”) of the product.14

• 15 Mendonca 2012: 124.
• 16 Guastini 1989. Many misunderstandings concerning the relationships between law and logic depend pre (...)

12In the Italian language (but the same holds for other languages) the word “comando” (command) can refer, depending on the context, to either the act of commanding or the content of such an act, i.e., what is commanded.15 There is no such ambiguity, on the contrary, in the usage of word “norm”: a norm is the content, result, or product of a normative act (a norm-producing act); nobody would name “norm” the normative act as such.16 A norm is one thing, a norm-formulating act is quite another thing.

• 17 I am talking about norms in general, not about legal norms. In the legal domain, things are more co (...)

13This is why a norm cannot be identified sic et simpliciter with a speech act. It is quite plausible, rather, to identify a norm with the result of a speech act: namely, a normative speech act, i.e., the act of formulating a norm.17

• 18 For example, questions, requests, promises.

16On the one hand, we did not exclude the existence of prescriptive meanings (i.e., norms, assumedly neither true nor false) side by side with descriptive meanings (i.e., true or false propositions) and maybe other kinds of meanings.18

• 19 Hernández Marín 1999. The relations of synonymy, however, are not independent of interpretation; ra (...)

17On the other hand, we did not assume any ontological commitment concerning the nature of meanings. One can simply maintain meanings to be not entities, but relationships (dyadic predicates), namely, the relations of synonymy between two sentences, the interpreting sentence and the interpreted.19

• 20 That is, between the sentences (the legal “provisions”) contained in the legal sources and the norm (...)
• 21 Cf., e.g., Alchourrón & Bulygin 2007: 218 ss. However, the distinction between sentences and meanin (...)

18Especially in the legal domain, one must distinguish between sentences and their meanings.20 The reason why, however, is not that sentences and meanings are entities of different kinds – the reason is that there is no one-to-one relationship between them, since a given (ambiguous) sentence can express more (alternative) meanings, one and the same meaning can be expressed by two or more (synonymous) sentences, and so forth.21

• 22 Scarpelli 1985: 570.

19In reference to legal norms, Scarpelli wrote:22

• 23 Alchourrón & Bulygin 1981: 96: “In this conception, norms are not language-dependent; they can only (...)
• 24 Independently of both the speech acts that formulate propositions or norms and the speech acts that (...)

22On the contrary, this is because such a conception is usually (although contingently) coupled with the (strictly metaphysical) tenet that meanings, e.g., propositions, are abstract entities whose existence is completely independent of the sentences that express them,23 in such a way that meanings are not the products of any processes of production – they exist independently of whatever process.24

• 25 Sure, propositions and norms can be conceived not as linguistic, but as mental entities: objects (o (...)

24It seems to me, however, that this view confuses the existence of a proposition with its truth-value. Sure, the proposition that the earth turns around the sun was true before Nicolaus Copernicus. But in what sense did it “exist” before Copernicus? In no sense at all, I submit.25

• 26 Berto 2010: ch. IV; Hernández Marín1998: 41.
• 27 Hernández Marín 1998: 50: “a proposition is the sense of a sentence; in absence of sentences, there (...)
• 28 Moreover, no meanings without interpretive (i.e., meaning-ascribing) acts. See Scarpelli’s (1985: 5 (...)

25Perhaps this view supposes a counter-intuitive concept of existence. In common parlance, we use “existent” (real, not abstract, not imaginary) to refer to any entity capable of causally interacting with the world. I see no plausible reason to depart from this common usage.26 A proposition exists if, and only if, it was actually formulated.27 Once more: no meanings without meaning-bearers.28

• 29 This is the view of natural law doctrines. See Bobbio1965: ch. VIII (natural law theory understood (...)

26At any rate, even if this view were plausible for propositions, it cannot be applied to norms, unless one accepts some form of “normative cognitivism”, i.e., the idea that norms depend (not on acts of will, but) on acts of cognition.29

• 30 Legal non-cognitivism is nothing other than legal positivism. (Nowadays, it is also called “the the (...)
• 31 Scarpelli 1989: 461.
• 32 This is the concept of the “factual existence” of a norm, which must not be confused with the “lega (...)
• 33 Kelsen 1989. Von Wright (1963: 116) put it well: “prescriptions originate, come into existence, thr (...)
• 34 Bulygin 2010: 285.

27From the standpoint of (ethical and legal) non-cognitivism,30 norms are human artefacts: they are “made” by people, not “given” to them.31 As a consequence, no moral or legal norm exists without a norm-creating act. There are no norms if nobody “posited” (or at least formulated32) them. “No imperative without an imperator”.33 Echoing Bulygin, the existence of “whatever norm [...] is contingent”.34

• 35 However, in the legal domain, only expressed norms originate from norm-producing acts, since jurist (...)

28As far as legal norms are concerned, the widely accepted view in modern legal thinking, since Bentham and Austin, is that norms only exist when, and only when, someone – the “sovereign”, or a delegated authority – created or promulgated them. In other words, generally speaking, modern legal thinking assumes a pragmatic conception of legal norms or, better, of their genesis: the existence of any norm depends on a norm-producing act.35

• 36 González Lagier 2001: 66.

29As I said, if this is correct, then the two conceptions of norms are not necessarily incompatible.36 It makes sense maintaining that norms are meanings and, nonetheless, that they acquire existence only through speech-acts.

• 37 It is a matter of course that norms have a temporal existence within a legal system, since any lega (...)
• 38 Tarello 1974.
• 39 Norms are interpreted sentences according to Alchourrón & Bulygin 1971. That means, if I understood (...)
• 40 I am alluding here to the distinction between two senses of “interpretation”: one referring to the (...)
• 41 One could say that, in this sense, the existence of a norm depends on language twice: on the one ha (...)

31Thus, a norm is a proposition-like entity not in the sense that it has an a-temporal existence,37 but only in the sense that norms, just like propositions, should not be confused with the sentences that express them. A norm is nothing other than the meaning of a sentence,38 therefore an interpreted sentence39 or, if you prefer, the result of the interpretation40 of a sentence.41