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The closure of the systems of legal norms of competence

Episode I: The normative powers of public authorities
María Beatriz Arriagada Cáceres
This article is a translation of:
La clausura de los sistemas de normas jurídicas de competencia [es]

Abstract

This work has two aims. Its first aim is to reject the widespread thesis that the legal normative systems determining the powers of public authorities are closed because they contain a rule stating that constituted authorities cannot execute normative acts if they have not been expressly authorised to do so. In other words, this rule states that any person whose normative status is not liable to the powers of a constituted authority by the constituent authority enjoys immunity from said authority. The second aim of the paper is to defend the (alternative) thesis according to which these systems are closed because they contain a residual closure rule that says that any person whose normative status has not been explicitly exempted from the competence of a constituted authority by an immunity established by the constituent authority is liable to its constituted authority. In pursuing these two goals, the author uses analytic tools developed to show that systems of regulative legal norms are closed if they contain a residual closure rule that says that anything that is not prohibited is permitted.

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1 Introduction

  • 1 Cfr. Conte 1962; von Wright 1963: 102-103 and 199-200; Alchourrón & Bulygin 1971: 116-144 and 165-1 (...)
  • 2 On this feature of prescriptive norms, see at least von Wright 1963: 7-8 and 70-71.
  • 3 Alchourrón & Bulygin 1971: 116-144 and 165-180 and Alchourrón & Bulygin 1984: 352-355, and Bulygin (...)

1The closure of legal systems has garnered great interest among legal theorists.1 The analytical tools developed thus far have had a tremendous impact on the study of systems of prescriptive or regulative legal norms that qualify behaviour in deontic terms.2 It has been proven that such systems are not necessarily closed because they can only be so when they contain a residual closure rule establishing that everything that is not prohibited is permitted. The archetypal case is liberal criminal law systems, since the renowned rule nullum crimen sine lege can be understood as a residual closure rule stating that all that is not penally prohibited is penally permitted.3

  • 4 Laporta 2007: 95.
  • 5 Although sovereign authority must be exempted from this prohibition; von Wright 1963: 194; Mazzares (...)

2Such interest in closure has not yet reached the systems of competence legal norms to the same extent, without which we could not talk of the “rule of law”.4 It has been said that such systems are closed because they contain a residual closure rule expressing that all those actions by normative authorities that have not been explicitly permitted by a superior normative authority are prohibited.5 This assertion, however, remains to be proven.

  • 6 For example, Merkl 2018: 217; Varas 1949: 17; García de Enterrría 1999: 127-128; Verdugo, Pfeffer (...)
  • 7 Guastini 2001:124; Guastini 2017: 168; Guastini 2016b: 148; Guastini 2016a: 138-139.

3The analytical tools developed for the study of closure in systems of prescriptive legal norms have not been reconstructed to explain closure in the systems of competence legal norms. This is important because to assert that such systems are closed in the way here explained conveys the widespread notion, closely linked to the idea of the rule of law, that public authorities can only do that which has been explicitly authorized or permitted,6 such that everything else is (implicitly) forbidden.7 The purpose of this work is to discuss this notion and to begin to explore a more sophisticated explanation of the closed nature of the systems of legal norms that determine the competences of public authorities.

4To achieve this goal, the text is divided into five sections. Section 2 introduces some of the analytical tools that have been developed for the study of closure in the systems of prescriptive legal norms. Section 3 reconstructs these tools so they can be used for studying closure in the systems of competence legal norms. Drawing on these tools, section 4 critically analyses the widespread thesis about the closure of the systems of norms defining the competencies of public authorities. Section 5 distinguishes the problem of identifying norms belonging to such systems as a separate and prior issue to that of its closure. Section 6 proposes a new thesis about the closure of these competence systems.

2 The closure of the systems of prescriptive or regulative legal norms

  • 8 Alchourrón & Bulygin 1971: 120-125 and Alchourrón & Bulygin 1984: 352-353; Bulygin 2010: 284-285.
  • 9 This ambivalence affects every statement using deontic terms, since they may be used either prescri (...)

5Alchourrón and Bulygin8 have shown that the term “permitted” is pragmatically ambivalent:9

  • 10 For this reason, normative propositions using the term “permitted” are ambiguous.

6(a) When it features in a normative proposition describing the existence of norms, it may express one of two descriptive concepts of permission:10 (a.1) A conduct p is permitted in a strong sense if within the system of reference there is a norm permitting p, and (a.2) A conduct p is permitted in a weak sense if within the system of reference there is no norm prohibiting p.

7(b) When the term “permitted” features, not in a normative proposition but in a norm, it expresses the prescriptive concept of permission. “Permitted p” is a normative character equivalent to “not prohibited p” and to “Not obligatory not p”.

  • 11 Alchourrón & Bulygin 1971: 123 and Alchourrón & Bulygin 1984: 353-354.

8According to these authors,11 permitted and prohibited, as normative characters, are contradictory. A weak permission (the proposition stating the inexistence of a norm prohibiting p) and the proposition stating the existence of a norm prohibiting p are also contradictory. But a strong permission (the proposition stating the existence of a norm permitting the state of affairs p) and the proposition stating the existence of a norm prohibiting p are not contradictory. Both propositions could be true if the system is inconsistent (if it comprises both norms), and thereby the strong permission does not entail the weak permission. In a consistent system, no state of affairs is prohibited that is at the same time permitted in a strong sense. Therefore, there are no states of affairs strongly permitted that are not permitted in a weak sense.

9If, conversely, both propositions are false (none of the norms belong to the system), the system is incomplete. In a complete system all the relevant states of affairs are regulated, as prohibited or strongly permitted. Thus, there are no states of affairs permitted in a weak sense that are not at the same time permitted in a strong sense. The need to distinguish between strong and weak permissions arises because of the possibility of inconsistent and incomplete normative systems.

  • 12 The same table may be found in Arriagada 2020: 12.

10The preceding is illustrated in the following Table 1 showing four possible systems:12

Table 1: Strong and weak permissions

1

2

3

4

i. There is a norm permitting p

T

F

T

F

ii. There is a norm prohibiting p

T

T

F

F

Inconsistent system with relation to p

T

F

F

F

Incomplete system with relation to p

F

F

F

T

Strong permission of p

T

F

T

F

Weak permission of p

F

F

T

T

11In system 2, p is not permitted either in a strong or a weak sense. In system 3, p is permitted in both senses. As both systems are consistent and complete with relation to p, the distinction between strong and weak permission is not necessary.

  • 13 Table 1 presupposes that “obligatory” implies “permitted”. Otherwise, system 4 would not be necessa (...)

12System 1 is inconsistent but not incomplete with relation to p because p is regulated. System 4 is incomplete13 but not inconsistent with relation to p because there is no conflict of norms. In both systems, the distinction between strong and weak permission is necessary. In system 1, p is permitted in a strong sense but not in a weak sense. In system 4, p is permitted in a weak sense but not in a strong sense.

  • 14 Alchourrón & Bulygin 1971: 125-127 and Alchourrón & Bulygin 1984: 354-355; Bulygin 2010: 285.

13Following this analysis Alchourrón and Bulygin14 contend that the famous principle stating everything that is not prohibited is permitted admits can be interpreted in different ways depending on whether it is considered as a norm or as a normative proposition describing the existence of norms:

14(a) If the principle is a normative proposition, it can be construed in two ways depending on the meaning of the expression “permitted”: (a.1) if “permitted” means strong permission, the principle is a contingent proposition about a normative system that will be true if the system is complete and false if the system is not; and (a.2) if “permitted” means weak permission, the principle is analytical and necessarily true, as it only expresses that what is not prohibited is not prohibited, it says nothing about any normative system.

  • 15 The closure rule belongs to a second level, as it refers to those statements in the system that con (...)

15(b) Alternatively, if the principle is a positive norm, we would be looking at a residual closure rule with a contingent existence. From the sole fact that the norm prohibiting certain action does not belong to the system (weak permission), such a rule infers that an implicit norm permitting that action (strong permission) belongs in the system.15

  • 16 Alchourrón & Bulygin 1971: 176-178.

16Thus, these authors conclude that the postulate of completeness generally proposed by jurists is only true in very exceptional cases of closed systems, such as those of liberal criminal law, containing the closure rule nullum crimen sine lege.16

  • 17 Alchourrón & Bulygin 1971: 140 and 142-143.
  • 18 Redondo 2006: 309-316.
  • 19 The universe of cases foreseen by the norms of a system, always regarding a specific universe of ac (...)

17As this rule allows one to infer that a conduct is permitted (in a given case) if no prohibition of that conduct can be derived from the system (for that case), its effect is the closure of the system, turning it into a closed system for the universe of relevant cases.17 Yet, as Redondo has noted,18 for the system to be absolutely closed it is not enough that a rule, such as this, fills the gaps. That is, it is not enough for the rule to provide a solution to the unresolved cases of the specific universe of relevant cases of a system with relation to a specific universe of actions. There must also be a residual closure rule providing a solution to every possible case unforeseen by the specific norms of the system with relation to that specific universe of actions19 and every possible case with relation to any universe of actions.

  • 20 Redondo 2006: 316-317.
  • 21 Von Wright 1963: 87 and 193-194.

18This idea of completeness seems to be implicit in a certain way of understanding the principle of legality, according to which every case not covered by a specific legal norm is covered by a residual norm that permits any other action in every circumstance.20 In that vein, for von Wright,21 the content of the permissive rule nullum crimen sine lege is, so to speak, the total sum of every action and abstention not already prohibited. If this rule belongs to the normative system, the latter is closed as it does not contain gaps.

3 Tools for analysing the closure of the systems of competence legal norms

19The purpose of this section is to reconstruct the analytical tools that have been developed for the study of the closure of prescriptive legal norms so that they can be used in the field of competence systems. To define this field, it is necessary to clarify that this work assumes the following theses:

  • 22 In the same vein, see Hohfeld 2010a and Hohfeld 2010b; Kelsen 1967: 4-5, 15-16, 56-57 and 138-149; (...)

20(i) A competence is the ability to produce valid legal norms or to partake in their production, constituted or determined by legal norms commonly referred to as competence norms or norms about legal production.22

  • 23 Guastini 2016a: 157. So called “constituted powers” are the different authorities performing the fu (...)

21(ii) These norms constitute the competencies of certain subjects whom, for that reason, can be called constituted authorities or constituted powers. The norms stemming from such authorities find the ground for their validity in the norms about legal production currently in force.23

  • 24 Guastini 2001: 66-67; Troper 2001: 203-216; Loewenstein 1982: 68-72; Carré de Malberg 1998: 764-782 (...)

22(iii) The competence of each constituted authority is defined (by legal norms of competence that are formally or substantively constitutional), through their opposition to other constituted powers. Each state function (legislative, judicial, and administrative) is distributed among a plurality of organs, such that the action of each can be impeded, controlled, conditioned, or influenced by the action of the others.24

  • 25 I refer to situations and relations in Hohfeld’s sense. Hohfeld 2010a and Hohfeld 2010b: duties/rig (...)
  • 26 Hohfeld 2010a: 35-36 and 50-60.
  • 27 Hohfeld 2010a: 35-36 and 60-63.

23(iv) Every competence or power of a constituted authority entails a correlative liability. Norms produced in the exercise of a competence alter the normative statuses, that is, the legal situations or relations25 of the individuals liable to such power.26 The disability (non-competence) of a constituted authority entails the immunity (non-liability) of the individuals whose normative statuses are not liable to be altered by the norms of the constituted authority. A relation of “disability/immunity” is opposed to one of “power/liability”.27

  • 28 This thesis presupposes the thesis according to which every legal norm may be reconstructed as a co (...)

24(v) Each normative status, legal situation, or relation of an individual can be described as a normatively solved case. That is, it refers to an action or omission that, under certain circumstances, is obligatory or permitted for one of the parties and with relation to which the other party has, respectively, a right or a no-right, or else it refers to a normative action one of the parties is competent or incompetent to perform, whereas the other, respectively, is liable or immune to its effects, under certain circumstances.28

25These five theses define the field within which the analytical tools developed for studying the closure of the systems of prescriptive legal norms can be reconstructed and have explanatory potential with regards to the systems of competence legal norms. This proposition hinges on the thesis according to which, despite their important differences, immunities are similar to permissions.

  • 29 Hohfeld 2010a and Hohfeld 2010b.
  • 30 For instance, Ross 2009: 128; Ruiz Manero 2005: 124; Bayón 2009: 69-70.

26Similarities between permissions and immunities have been paradigmatically stressed in the Hohfeldian explanatory model,29 where the concept of privilege (or liberty), the correlative of which is the concept of a no-right, is identical to the concept of permission.30 The place that the concept of privilege occupies in its respective family is analogous to that occupied by the concept of disability in its respective family, correlative of which is the concept of immunity.

  • 31 Arriagada 2018: 15.
  • 32 Arriagada 2018: 28-29.

27Insofar as it is descriptive (rather than ascriptive) of subjective legal situations in contexts of systems of legal norms, Hohfeld’s discourse belongs on the level of normative propositions.31 One of its salient features is the ambiguous use of the correlative terms “privilege/no-right” and “disability/immunity”: it is unclear whether they are used to describe situations ascribed by certain norms (strong situations) or to describe the absence of such norms (weak situations).32 This similarity between permissions and immunities, echoing the distinction between strong and weak permissions, allows the introduction of the distinction between strong and weak immunities, which is useful for analysing the closure of the systems of competence legal norms.

28The analysis conducted in this section begins, therefore, by presenting the Hohfeldian model for the analysis of legal situations and relations (3.1). Next, it bears out the similarity between permissions and immunities through the analysis of the ambiguity with which Hohfeld uses the concepts of privilege/no-right and disability/immunity (3.2). After explaining the differences separating immunities from permissions (3.3), it introduces the distinction between strong and weak immunities (3.4).

3.1 The Hohfeldian model of legal situations and relations33

  • 33 A more detailed analysis of the Hohfeldian model may be found in Arriagada 2018 and Arriagada 2020. (...)
  • 34 Hohfeld 2010a: 35-36 and 64.
  • 35 For instance, Kramer 2000: 8; Rainbolt 2010: 4.

29Hohfeld identifies eight legal concepts that he considers to be fundamental, and he analyses them connectively within a scheme of four correlativity relations (duty/right, privilege/no-right, power/liability, disability/immunity) and four opposition relations (duty/privilege, right/no-right, power/disability, liability/immunity).34 From a logical point of view, his strategy is to show that correlative terms imply each other (are logical equivalents) and opposed terms are mutually exclusive (are logical opposites).35

  • 36 Hohfeld 2010a: 38-39, 55-60 and Hohfeld 2010b 73. See Williams 1956: 1144-1145; Rainbolt 1993: 95; (...)
  • 37 This classification is different to that according to which the situations of right, privilege, pow (...)

30As “correlativity” means mutual implication, correlative terms express a single relation viewed from two different angles and the two statements that can refer to it are logically equivalent.36 This is because Hohfeld presupposes that every correlativity relation is constituted by an active legal situation and a passive legal situation that work like two poles of a battery. A situation is active if it is defined by reference to a conduct by its position-holder. Conversely, a situation is passive when it is defined, not by reference to a conduct by its position-holder, but by reference to a conduct by the position-holder of the correlative legal situation. From this perspective, duties, privileges, powers, and disabilities are active situations, whereas rights, no-rights, liabilities, and immunities are passive situations.37

  • 38 According to Hohfeld (2010a: 60), a power bears the same general contrast to an immunity that a rig (...)
  • 39 Williams 1956: 1135-1142 and Ross 2009: 128.
  • 40 Hohfeld 2010a: 60.

31Since “opposition” means mutual contradiction, a privilege is the negation of a duty whose content or sense is exactly opposite to that of the given privilege.38 It is the negation of the duty to do something or the negation of the duty not to do something.39 An immunity, in turn, is the negation of a liability of the same content as that of the relevant immunity.40 The relations of opposition are verified between two active concepts (duty/privilege and power/disability) or between two passive concepts (right/no-right and liability/immunity).

  • 41 Kramer 2000: 20; Wenar 2005: 230-233; Guastini 2016a: 84-87, Rainbolt 2010: 3 and Arriagada 2018: 1 (...)

32These situations and relations of correlativity and opposition are usually classified into two families. Right, duty, privilege, and no-right are considered primary or first-order, whereas power, liability, disability, and immunity are considered secondary or second-order.41

  • 42 Regulative norms are defined as those which, within a legal system, deontically qualify the perform (...)
  • 43 Non-normative legal acts are those whose performance and the consequences that follows from their p (...)
  • 44 Of course, duties and rights instituted by regulative norms and privileges and no-rights negating t (...)

33This classification is based on Hohfeld’s explicit use of two distinctions: (a) regulative norms and norms of competence,42 and (b) non-normative legal acts and normative legal acts.43 In extremely brief terms: (i) Duties and rights are instituted by regulative norms and can refer to non-normative legal acts, in which case they belong to first-order situations. Privileges and no-rights denying them refer to the same object and, consequently, are also of first-order; (ii) Powers and liabilities are instituted by norms of competence that refer to normative acts, thereby being at least of second-order. Disabilities and immunities negating them refer to the same object and, therefore, possess their same hierarchy.44

  • 45 By authors such as Kramer (2000: 20) and Rainbolt (2010: 3).
  • 46 Arriagada 2018: 22. This explanation, at the same time, presupposes the thesis that the two familie (...)

34This explains the assertion45 that Hohfeldian situations and relations of the first family may, although not necessarily, be primary and those of the second family cannot be primary but at least of second-order.46

  • 47 The same table can be found in Arriagada 2018: 41.

35The Hohfeldian scheme is graphically illustrated in the following Table 2.47 Correlativity relations are presented with the biconditional symbol (↔). As each of these relations involves an active and a passive concept, the active always comes first and is highlighted in italics. Opposition relations are presented by a contradiction symbol () and they all involve either two active concepts or two passive ones.

3.2 Ambiguity in the use of the concepts of privilege/no-right and disability/immunity48

  • 48 A more detailed analysis of what has been explained in this section can be found in Arriagada 2018: (...)
  • 49 See, for instance, Spaak 2003: 90, Lindhal 1977: 203 and Arriagada 2018: 10-15.

36The logical perspective proposed by Hohfeld points to the conclusion that all Hohfeldian concepts are on the same level, that is, they are not mutually reducible but are inter-definable in terms of their correlatives and opposites.49

  • 50 Guastini 2016a: 85-86.

37Hohfeldian scholars, however, appear to be in agreement that the concepts of privilege, no-right, disability and immunity are purely negative. In terms of Guastini, such situations lack conceptual autonomy in the sense that they are but the respective absence of obligation, right, liability, and power.50

  • 51 Consequently, this distinction does not entail denying that every Hohfeldian concept is on the same (...)

38This is because both Hohfeld and scholars of his work implicitly accept that the concepts of privilege/no-right and of disability/immunity are derived, whereas the concepts of duty/right and of power/liability are primitive. This distinction is not based on the Hohfeldian scheme of logical relations, but on the possibility that the distinction is useful for those able to use it.51

  • 52 Arriagada 2018: 36-42. The distinction between primitive and derived concepts can be traced back to (...)

39From the perspective of how real legal systems work, the concepts of privilege/no-right and of disability/immunity are derived in the sense that their legal meaning cannot be understood without referring respectively to the concepts of duty/right and power/liability. The latter are, conversely, primitive, for their legal meaning can be understood without reference to the first four. Such a differentiation is, thus, a premise of the practical utility of Hohfeld’s conceptual apparatus.52

  • 53 Formulated another way, the question is whether it is about the external negation of a statement as (...)

40What Hohfeld does not make explicit, however, is what it means, within the context of a description of a legal system, to say that: (i) a privilege/no-right relation is the negation of a duty/right relation of opposite content, and (ii) a disability/immunity relation is the negation of a power/liability relation of the same content.53

  • 54 Arriagada 2016: 157.
  • 55 Hart 1983: 35-36 note Nº15 therein.

41From a first perspective, Hohfeldian relations of privilege/no-right and of disability/immunity entail the respective absence of regulative and competence norms.54 These would be, as suggested by Hart, negative cases where there is no norm interfering with the individual choosing to do or omit certain action (liberty) or to preserve their legal situation unchanged (immunity).55

  • 56 If a landowner authorizes a non-proprietor to enter their land, discharging them from the duty not (...)
  • 57 Guastini 2016a: 85-87.

42From a second perspective, privilege/no-right and disability/immunity relations are instituted by norms setting forth exceptions to preceding duty/right and power/liability relations.56 The situations of privilege and no-right are ascribed by permissive norms authorizing certain subjects to do certain actions discharging them from fulfilling previous obligations and correlatively denying other subjects previously conferred rights. In turn, situations of disability and immunity are ascribed by norms cancelling previously conferred powers to certain subjects and correlatively freeing other subjects from preceding liabilities.57

  • 58 Guastini 2016a: 85-87.
  • 59 Arriagada 2018: 33.

43The debate about the right way to understand the purely negative character of the terms privilege/no-right and disability/immunity remains open, to the extent that it may be concluded, like Guastini does, that such terms are ambiguous because they can be used both to describe the content of positive norms instituting these legal situations and to describe the absence of such norms.58 Nothing in Hohfeld’s work indicates that the existence or inexistence of a norm is the criterion to distinguish two different relations of privilege/no-right and two different relations of disability/immunity.59

  • 60 Complete in the sense that they contain a closure rule that authorizes to infer: (i) from the absen (...)
  • 61 See supra section 2.
  • 62 It is so postulated, with respect to liberties or privileges, by Duarte d’Almeida 2016: 562.

44A possible interpretation is that Hohfeld’s analysis presupposes that legal systems ascribing the situations he analyses are complete and consistent,60 given that in such systems the distinction between two different relations of privilege/no-right and two different relations of disability/immunity would not be necessary.61 Another available interpretation is that Hohfeld’s analysis assumes that the relations of liberty/no-right and disability/immunity that find their origin in the respective absence of prohibitive regulative norms and norms of competence are pragmatically equivalent to those ascribed, respectively, by permissive norms and norms of incompetence. The existence or inexistence of a norm would not make any difference in the normative situation of the position-holder of a privilege or immunity.62

45The most plausible interpretation, however, is that Hohfeld did not see the doubts and issues produced by the ambiguity with which he uses the terms deemed purely negative because his work is quite prior to the debate on whether there is a difference, and if so, of which kind between not regulated legal situations and situations instituted by permissive norms or norms of incompetence.

3.3 The differences between permissions and immunities63

  • 63 This section reproduces part of what was exposed in Arriagada 2020: 21-22, insofar as it is essenti (...)

46The similarities between permissions and immunities constitute the basis to introduce the distinction between strong and weak immunities. But this task cannot be completed without considering that between permissions and immunities there are at least four relevant differences.

  • 64 See supra section 3.1.

47The first difference is that while permissions may, although not necessarily, be of first-order, immunities are at least of second-order. Immunities (and disabilities), unlike permissions (and no-rights), cannot have non-normative acts as an object. The object of such relations is constituted by legal situations, normative statuses.64

  • 65 Kelsen 1967: 128, Ross 2009: 128 and Guastini 2016a: 86. Hohfeld says nothing about the possibility (...)
  • 66 For instance, Guastini 2016a: 87. In fact, the change in one’s situation entails a change in someon (...)

48The second difference consists of the fact that whereas permissions can be indirect or no-relational, immunities are always direct or relational. It is possible for there to be duties without correlative rights65 and, therefore, permissions (privileges) without correlative no-rights. But there cannot be powers without correlative liabilities or disabilities without correlative immunities. Power and liability are two relational concepts.66

  • 67 See supra section 3.1.
  • 68 See the table summarizing the Hohfeldian scheme in section 3.1.

49The third difference is that while the concept of permission is active, the concept of immunity is passive.67 That is why these two concepts do not occupy exactly the same place in their respective families. The active concept of permission is opposite to the active concept of duty in the family of primary situations. The concept occupying the same place of permissions (privileges) in the family of secondary relations is the active concept of disability that is opposed to the active concept of power. The passive concept of immunity, correlative to disability, is the opposite of the active concept of liability, thereby occupying the same place as the concept of no-right in its respective family.68

  • 69 In addition, the exercise of a competence to alter someone else’s normative status is optional. In (...)

50The fourth difference is that whereas permissions can be either positive or negative, immunities are always positive. A positive permission is the authorization to perform an action and it is opposed to the duty not to perform the action (prohibition). A negative permission is the authorization not to perform an action and it is opposed to the duty to perform the action (obligation). As a power is always positive because it is the possibility to validly alter a normative status. Disability is also positive because it is the impossibility to validly perform such an act of alteration. There is no power not to alter a normative status.69

3.4 Strong and weak immunities: the route of Alchourrón and Bulygin70

  • 70 The arguments presented in this section are developed in detail in Arriagada 2020: 22-23.

51Considering the similarities and differences between permissions and immunities, Achourrón and Bulygin’s distinction between strong and weak permissions may be transposed to the field of immunities. I will begin, then, by saying that the term “immunity” is pragmatically ambivalent:

  • 71 The disability of X and the immunity of Y can be instituted by a norm so declaring or by a norm end (...)

52(a) When it features in a normative proposition describing the existence of norms, it can express one of two descriptive notions of immunity: (a.1) An individual Y is in a strong immunity situation vis-à-vis another individual X with respect to certain normative status p, if in the system there is a norm that, issued by an authority superior to X, institutes the disability of X to alter p and correlatively the immunity of Y.71 And (a.2), an individual Y is in a situation of weak immunity vis-à-vis another individual X with respect to the normative status p, if in the system there is no norm ascribing to X the power to alter p and to Y the correlative liability.

  • 72 More precisely, in a normative formulation expressing a constitutive norm. I thank the anonymous re (...)

53(b) If the term “immunity” features, not in a normative proposition, but in a norm,72 it expresses the normative concept of immunity. The immunity of Y vis-à-vis X with respect to status p is equivalent to the non-liability of Y vis-à-vis X in relation to p, as well as the disability of X regarding the p status of Y is equivalent to the disability of X with respect to the status p of Y.

54As to situations that are ascribed by norms, “immunity” and “liability”, like “power” and “disability”, are contradictory in a way analogous to “permitted” and “prohibited” as characters of prescriptive norms. Further, weak immunity (the proposition stating the inexistence of a norm ascribing to an individual X the power to alter p and to another individual Y the correlative liability) and the proposition stating the existence of a norm ascribing to an individual X the power to alter p and to another individual Y the correlative liability, are contradictory. But strong immunity (the proposition asserting the existence of a norm ascribing an immunity to an individual Y and the correlative disability to another individual X in relation to p) and the proposition stating the existence of a norm ascribing to an individual X the power to alter p and to another individual Y the correlative liability, are not contradictory.

55Both propositions could be true if the system were inconsistent (if it included both norms at once). Therefore, strong immunity does not entail weak immunity. If the system is consistent, there can be no relation of power/liability and relation of disability/immunity at the same time with regard to any normative status, which therefore means that there would be no strong immunities that are not at the same time weak. If, conversely, both propositions are false, the system is incomplete (neither norm belongs to the system). If the system is complete, all normative statuses would be defined, as liable to power or as enjoying strong immunities. The possibility of inconsistent and incomplete normative systems would make it necessary to distinguish between strong and weak immunities (disabilities).

  • 73 The same table can be found in Arriagada 2020: 23.

56The preceding is summarized in the following Table 3 showing four possible systems:73

Table 3: Strong and weak immunities

1

2

3

4

i. There is a norm instituting a relation of disability/immunity between two individuals (X and Y) with regard to the normative status p

T

F

T

F

ii. There is a norm instituting a relation of power/liability between two individuals (X and Y) with regard to the normative status p

T

T

F

F

Inconsistent system with regard to p

T

F

F

F

Incomplete system with regard to p

F

F

F

T

Strong disability/immunity with regard to p

T

F

T

F

Weak disability/immunity with regard to p

F

F

T

T

57Within system 2 there is no immunity either in the strong or the weak sense with regard to the normative status p. In system 3 there is strong and weak immunity with regard to p. Since the system is consistent and complete with regard to p in both cases, the distinction between strong and weak immunity is not necessary.

58System 1 is inconsistent, but not incomplete with regard to p. System 4 is incomplete, but not inconsistent with regard to p. Both are similar in that the distinction between strong and weak immunity is necessary. In system 1 there is strong immunity, but not weak immunity with regard to p. In system 4 there is weak immunity, but not strong immunity with regard to p.

4 Analysis of the widespread thesis about the closure of the systems of competence legal norms

  • 74 Von Wright 1963: 193-194; Mazzarese 2012: 45.
  • 75 Redondo 2006: 317, note N°20 therein.

59Now that we have reconstructed the analytical tools that may be used in the field of legal systems of competence, it is time to analyse the widespread thesis about the closure of the systems of legal norms defining the powers of public authorities. This thesis contends that the rule that closes such systems establishes that constituted authorities are forbidden from performing normative actions that have not been expressly permitted by the superior authorities,74 or that all actions not specifically permitted by the competence norms within the system are prohibited.75

  • 76 A different problem is whether the closure rule of systems of competence is a norm of competence or (...)

60The first thing that needs to be clarified is that the rule closing a system of legal norms of competence must not be articulated using deontic terms. Norms of competence do not qualify actions deontically, but they determine the conditions of validity of normative legal actions that, by creating, modifying, or derogating norms, modify individual normative statuses.76

  • 77 A different thing is for the exercise of a competence to be regulated or qualified as mandatory, pr (...)

61A correct way of formulating this rule is: constituted authorities are incompetent to perform legal normative actions that have not been rendered explicitly liable to their power by the constituent authority.77 The same rule may be formulated correctly from the perspective of the individuals whose normative statuses are not liable to the power of constituted authorities, to wit: every individual whose normative status is not explicitly made liable by the constituent authority to the power of a constituted authority, possesses an immunity vis-à-vis the constituted authority. Thus formulated, this rule is analogous to the one closing the systems of liberal criminal law.

  • 78 On the concept of condition of application, see at least von Wright 1963: 73-74.

62The thesis that there is such a closure rule presupposes that once the classes of individual normative statuses that the constituted powers are competent to modify are determined, there arises a complementary class of individual normative statuses outside of their competence. This complementary class would amount to the condition of application78 of the closure rule that, metaphorically, would guarantee individuals a “space” of immunity against normative encroachment. Any normative act aimed at modifying the normative statuses of individuals not explicitly liable to the power of constituted authorities would be invalid due to the closure rule of the system instituting the disability of such authorities and the correlative immunity of individuals.

63Against such a widespread thesis, it could be objected that the closed character of such systems is due, not to the existence of a closure rule, but to a conceptual necessity. Normative acts aimed at modifying normative statuses that are not explicitly liable to the power of constituted authorities are invalid, not because of the existence of a closure rule, but because a feature of a competence-based or dynamic legal system is that no authority may validly alter the normative status of an individual if there is not a norm explicitly conferring them the power to do so.

  • 79 Part of such an effort of adaptation has been done in Arriagada 2020: 23-24.

64In this regard, the conclusions reached by Alchourrón and Bulygin on the principle that “everything which is not prohibited is permitted”, seem suitable to explain the closed character of competence systems.79 Following these authors, we may say that the formula according to which every individual whose normative status is not explicitly made liable to the power of a constituted authority by the constituent authority, possesses an immunity against the constituted authority, admits of different interpretations depending on whether it is considered a norm or a normative proposition describing the existence of norms:

  • 80 The disability and immunity referred to can be established by a constitutional norm declaring so or (...)

65(a) If the statement is a normative proposition, it may be interpreted in two ways depending on the meaning assumed by the expression “immunity”: (a.1) if “immunity” means that within the system of reference there is a constitutional norm instituting the disability of the constituted authority to alter certain normative statuses and the correlative immunity of individuals (strong immunity),80 the statement is a contingent proposition that is only true if the system of reference is complete and false if it is not. And (a.2), if “immunity” means that within the system of reference there is no constitutional norm ascribing power to the constituted authority to alter such statuses nor to individuals, the correlative liability (weak immunity), then the statement is an analytical proposition and, as such, it is necessarily true and trivial, insofar as it only asserts that what is not liable to power is not liable to power.

66(b) If the statement is not a normative proposition, but a norm, we would be facing a residual closure rule the existence of which is contingent. Such a rule would authorize to one to infer, from the sole fact that the norm rendering certain normative statuses of individuals liable to the power of a constituted authority does not belong to the system (weak immunity), the belonging to the system of an implicit norm instituting said constituted authority’s disability to alter those statuses and the correlative immunity of individuals (strong immunity).

67Against the widespread thesis contending that such systems of competence norms are closed because they contain this closure rule, we can object that how the complementary class to the class of individual normative statuses which constituted authorities are competent to modify is established is unclear, because it is not clear how the latter class is established.

  • 81 Thus, for instance, in the Chilean Constitution, intensional definitions of the legislative functio (...)

68In this regard it may be contended that constitutions, for example, can circumscribe the object of the competences of constituted authorities by using intensional (connotative) definitions whose insufficiency makes it necessary to complement them with extensional (denotative) definitions consisting of mere lists of subjects or topics that, additionally, are closed by residual clauses establishing that everything that is not (generically) included in them falls outside of the sphere of competence of the constituted authority.81

  • 82 Thus, for example, with relation to the catalogue of matters liable to legislative regulation in th (...)
  • 83 Carré de Malberg 1998: 257 and Carré de Malberg 2011: 35-37. For example, the legal reservation con (...)

69The thematic character of such lists would determine the practical impossibility of establishing the group of individual normative statuses that constituted authorities are competent to modify. To this we can add that such lists may not be exhaustive but merely illustrative, in which case constituted authorities would be competent to issue norms on any matter, without limitation.82 It may even be argued that it is perfectly possible for constitutions not to define the competences of constituted authorities with regard to their object, but only by way of exclusively formal criteria.83

  • 84 Ferrajoli 2016 :95, 120-121, 379-381. See also Laporta 2007: p. 87 and Bustos Ramírez 2007: 380-381 (...)

70From this perspective, it could be argued that the systems of legal norms determining the competences of public authorities are very different from criminal law systems. The validity of criminal norms is conditioned by a specific qualification technique whereby the description of criminal offences is exhaustive, such that their use is possible in judicial propositions that are true or false with reference to established empirical facts.84 Consequently, the discourse of the criminal legislator may be characterized as one assigning certain sanctions to certain typical cases. Conversely, for reasons such as those already addressed, the discourse of the constituent authority may be characterized as one that does not typically define a closed group of individual normative statuses liable to being modified by constituted authorities.

  • 85 Raz 1999: 150-151

71Such feature may be explained by the thesis according to which legal systems are comprehensive, in the sense that they do not acknowledge any limitations of the spheres of behaviour which they claim authority to regulate. They claim authority to regulate all forms of behaviour, that is, that they either contain norms which regulate it or norms conferring powers to enact norms which if enacted would regulate it.85

  • 86 I am unable to conduct this analysis on this occasion.

72In light of the interpretative theses of relevant doctrinal works and jurisprudence, this thesis warrants analysis and discussion. It contests the thesis that systems of legal norms determining the competences of public authorities contain a closure rule that is applied to the class of all individual normative statuses that are not explicitly liable to the power of constituted authorities.86 The reason is because such a class would not be able to be determined if it is not possible to determine the class of all individual normative statuses that said authorities are expressly competent to modify.

73Hence, the question that must be addressed is whether constitutions include other provisions upon which such a determination may be reached. Therefore, the focus must be placed on the dispositions expressing norms that, by ascribing individual immunities, limit the contents of the norms that constituted authorities are competent to dictate. This entails the assertion that in legal systems there are strong immunities (instituted by norms), which obviously challenges the widespread thesis about closure and leads to the reconstruction of a different thesis. However, it is precisely here that we must carefully distinguish two different problems that must be addressed sequentially: the problem of norm identification (5) and the problem of closure (6).

5 The problem of norm identification in competence systems

  • 87 Ruiz Manero 2005: 119-121 and Ruiz Manero 2010: 300-301; Bayón 2009: 49-52 and 55.

74There are some who think that criminal systems are closed, not because they have a closure rule permitting everything that is not prohibited, but because they contain a closure rule that, addressed to judges, mandates definitively qualifying as not prohibited everything that is not expressly prohibited. Put another way, it precludes the extension of prohibitions expressly contained in rules. In such systems, everything that is permitted (in a strong or weak sense) by rules, would be definitively permitted. All other legal systems are considered, in turn, open because they do not include the same closure rule. Judges could extend the prohibitions explicitly contained in rules, as required according to the principles underlying such rules. Everything that is permitted in these systems (in a strong or weak sense) would be permitted only prima facie because any permission could be displaced to favour a prohibition after pondering or balancing out the relevant reasons.87

  • 88 Bulygin 2010: 292.
  • 89 I understand as an interpretative rule every rule specifying a criterion to attribute meaning to on (...)

75As Bulygin points out, the distinction between prima facie permissions and definitive permissions relates to a problem of norm identification stemming from certain normative formulations. This problem is independent of the principle “everything that is not prohibited is permitted”, the analysis of which presupposes a group of already interpreted normative formulations.88 The rule requiring qualifying that which is not expressly prohibited as definitively not prohibited is not, therefore, a closure rule, but an interpretative rule (of dispositions expressing prescriptive norms),89 the existence or inexistence of which does not affect the closed or open nature of legal systems.

  • 90 Guastini 2016b: 142-146.

76To identify the norms belonging to the systems of norms determining the competences of constituted authorities, it is necessary to analyse the interpretative practice of constitutional provisions to which doctrine and jurisprudence attribute the meaning of norms ascribing powers to constituted authorities and immunities to individuals. In this analysis, the distinction between prima facie and definitive positions can prove particularly useful because its application, both to powers and immunities, allows us to find out whether, by virtue of extant interpretative rules, the former can be displaced to favour the latter after pondering the relevant reasons. This analysis is particularly urgent in contexts of constitutionalized legal systems where the tendency to over-interpret the constitution by elaborating norms that are thought to be implicit reduces to the minimum possible the spaces not regulated by constitutional norms.90

  • 91 Ruiz Manero 2010: 301-303.

77In the same analysis, it would also be useful to draw on the concept of a protected legal situation. It has been argued that, within hierarchical systems where subordinated authorities are banned from issuing norms that modify the normative status of actions permitted by superior authorities, a strong permission is always a permission protected by a right whose content is that such norms are not issued.91 This thesis may be reconstructed in the field of powers, liabilities, disabilities, and immunities.

78With this goal in mind and in light of relevant doctrine and jurisprudence, the need arises to analyse if constituted authorities are banned from issuing norms modifying the normative statuses that are immune to their power. If so, individual immunities would be protected by a right whose content is that such norms are not issued; if such a right is, at the same time, protected by a norm affording to individuals the procedural ability to claim it judicially; if, such a right not existing, immunities are protected or not by a norm conferring its position-holders the procedural ability to request a judicial declaration of invalidity of the norms incompatible with such immunities; or if, failing definitive immunities, individuals have, at best, only the procedural ability to participate in and influence decisions on the invalidity of norms issued by constituted authorities. In that case, individuals would be nothing more and nothing less than one of the constituted powers whose competences are delimited by controls and reciprocal influences.

79Likewise, there would have to be an analysis regarding whether the competences afforded to constituted authorities are protected by norms conferring them the procedural ability to call for a declaration of validity of the norms issued while exercising their competences. Or, failing definitive competences, whether constituted authorities have at best the procedural ability to participate in and influence judicial decisions on the validity of the norms.

  • 92 Constitutional jurisdiction with regard to norms of inferior hierarchy is only possible when substa (...)

80These tasks require facing the circularity consisting in the fact that at the same time and place where there is interpretation, argumentation, and adoption of decisions on the validity/invalidity of norms, and therefore the material competences of constituted authorities and the contents of individual immunities are determined, there is also a definition of the limits of the formal and procedural competences of said authorities and individuals to influence such decisions and vice versa. It thereby becomes necessary to revisit the Kelsenian thesis according to which formal and substantive limits of competence (and of validity) are but two angles of one and the same problem.92 At the same time, it is essential to account for the existing relations between norms ascribing powers and immunities and prescriptive or regulative norms that deontically qualify the exercise of competences.

6 A new thesis about the closure of the systems of legal norms of competence

81Only once the problem of the identification of norms ascribing powers to constituted authorities and immunities to individuals has been solved, does it become possible to reconstruct the rule that closes the system to which such norms belong.

  • 93 This does not cover just the judicial and administrative branches, but the legislative as well when (...)
  • 94 Guastini 2018: 53-60. In the same vein, four different conditions of validity of a norm can be dist (...)

82We know that, in a constitutional state where the rule of law exists, the validity of the normative acts by any constituted authority depends on them being in conformity with the constitutional norms defining the competence for their performance.93 Among such rules, a distinction is usually made between: (i) those bestowing competences upon certain constituted authorities, (ii) those defining the procedures for the exercise of said competences, (iii) those circumscribing the competences’ object, that is, the topics, cases or operative facts that may be regulated by constituted authorities, and (iv) those limiting the manner in which said object may be regulated, namely, the solutions or legal consequences that may be connected to the cases or operative facts subject to regulation.94

  • 95 It is said that, whereas the violation of type (iv) norms gives rise to a substantive unconstitutio (...)
  • 96 There are some whom in the sphere of competence norms do not distinguish type (iii) from type (iv) (...)

83The norms of types (i) and (ii) define the form that normative acts shall have. The norms of types (iii) and (iv) instead refer to the norms produced by such acts. Although it is deemed that the unconstitutionality stemming from the violation of type (iv) norms is independent from the unconstitutionality arising from the breach of type (iii) norms,95 the existence of type (iv) norms presupposes the existence of type (iii) norms. Type (iv) norms limit the solutions or consequences that may be connected to the cases or operative facts that are supposedly defined by type (iii) norms.96

  • 97 For example, Laporta 2007: 99-100; Prieto Sanchís 2009: 75-78. The former notwithstanding, the cont (...)
  • 98 Martin 1993: 30.
  • 99 Hart 1982: 191 and Hart 2012: 69 and 314, note on pages 66-71.

84To say that type (iv) constitutional norms limit the content that inferior norms may have,97 does not amount to saying that constituted authorities are forbidden from producing norms with contents incompatible with the Constitution, but that they are incompetent to produce them. They are constitutionally disabled or impeded in the same way that a person is disabled or impeded from marrying twice at the same time, which is legally impossible as the second marriage would be necessarily invalid.98 A constitution that limits competences does not impose duties; it establishes disabilities and immunities.99 The constitutional norms instituting the immunity of certain individual normative statuses, that is, normatively solved cases, exclude such statuses from the competence of constituted authorities, such that the solution to those cases cannot be validly modified.

85From this perspective, the thesis that may adequately explain the closed nature of the systems of legal norms determining the competences of public authorities asserts that such systems contain a residual closure rule that does not ascribe residual immunities to individuals, but that ascribes residual competences to constituted authorities. Such a residual closure rule establishes that every individual whose normative status has not been expressly excluded from the competence of a constituted authority by virtue of an immunity instituted by the constituent authority, is liable to the power of the constituted authority.

86The verification of this thesis requires the study, through an analysis of the interpretative practice of relevant doctrine and jurisprudence, of the possibility of identifying the immunities explicitly ascribed to individuals by the Constitution. Such immunities limit the competence of constituted authorities to create norms modifying the rights, privileges (or liberties or permissions), powers, and immunities of individuals. Therefore, the normative individual statuses falling outside of these limits constitute the condition of application of the residual closure rule.

  • 100 For instance, Hart 1982:190-191.
  • 101 For instance, see Böckenförde 2001: 48-49 and García de Enterrría 1999: 139.

87This requires taking seriously the thesis according to which constitutional provisions enshrining so called fundamental rights express norms limiting the competence of constituted authorities through justiciable individual immunities. This thesis has been formulated by both specialists in legal theory100 and public law.101 But the issue has not been sufficiently studied and has not been studied from the perspective of the closure of competence systems.

Acknowledgment.— This work is a result of the project funded by the Fondo Nacional de Desarrollo Científico y Tecnológico, FONDECYT regular Nº1200549 “La clausura de los sistemas de normas jurídicas de competencia”. I would like to thank Claudio Agüero, Riccardo Guastini, and Álvaro Núñez for their observations on an earlier draft of this article. I also thank Juan Pablo Mañalich with whom I have discussed the topic of this article for over a year. Many of his acute observations, as well as the valuable reflections developed as a result of this exchange, are reflected in Mañalich 2021. Finally, I appreciate the suggestions provided by the anonymous reviewers from Revus. Any mistakes or omissions that might persist are, naturally, my exclusive responsibility.

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Troper, M. (2001). Actualidad de la separación de poderes. In M. Troper, Por una teoría jurídica del Estado (M. Venegas Grau, Trans.). Dykinson. (Original work published 1994)

Varas, G. (1940). Derecho administrativo. Nociones generales. Nascimento.

Vega, J. (2015). El sujeto de derecho y la relación jurídica. De las modalidades deónticas a las posiciones jurídicas de Hohfeld. In D. González Lagier (ed.), Conceptos básicos del derecho (pp. 113-147). Marcial Pons.

Verdugo, M., Pfeffer, E., & Nogueira, H. (1994). Derecho constitucional. Tomo I. Editorial Jurídica de Chile.

Von Wright, (1963): Norm and action. A logical inquiry. Routledge & Kegan Paul.

Wellman, C. (2002). Legal rights. In C. Wellman (ed.), Rights and Duties. Conceptual Analyses of Rights and Duties (pp. 171-179). Routledge.

Wenar, L. (2005). The nature of rights. Philosophy & Public Affairs, 33(3), 223-252.

Williams, G. (1956). The Concept of Legal Liberty. Columbia Law Review, 56(8), 1129-1150.

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Notes

1 Cfr. Conte 1962; von Wright 1963: 102-103 and 199-200; Alchourrón & Bulygin 1971: 116-144 and 165-180 and Alchourrón & Bulygin 1984; Moreso & Navarro 1992; Guarinoni 2000; Redondo 2000 and Redondo 2006; Poggi 2004: 29-106; Sucar 2009; Bayón 2009; Bulygin 2010; Navarro 2011 and Rodríguez 2015.

2 On this feature of prescriptive norms, see at least von Wright 1963: 7-8 and 70-71.

3 Alchourrón & Bulygin 1971: 116-144 and 165-180 and Alchourrón & Bulygin 1984: 352-355, and Bulygin 2010: 284-285.

4 Laporta 2007: 95.

5 Although sovereign authority must be exempted from this prohibition; von Wright 1963: 194; Mazzarese 2012: 45 and Redondo 2006: 317, note N°20 herein.

6 For example, Merkl 2018: 217; Varas 1949: 17; García de Enterrría 1999: 127-128; Verdugo, Pfeffer & Nogueira 1996: 136; Moraga Klenner 1998: 278; Soto Kloss 2012: 178 and Bermúdez 2014: 90 et seq.

7 Guastini 2001:124; Guastini 2017: 168; Guastini 2016b: 148; Guastini 2016a: 138-139.

8 Alchourrón & Bulygin 1971: 120-125 and Alchourrón & Bulygin 1984: 352-353; Bulygin 2010: 284-285.

9 This ambivalence affects every statement using deontic terms, since they may be used either prescriptively or descriptively. In the first case, these statements express norms that qualify conducts as mandatory, prohibited, or permitted. In the second case, they express normative propositions describing norms, their existence, or some other property of norms, such as their validity, applicability, efficacy, etc.

10 For this reason, normative propositions using the term “permitted” are ambiguous.

11 Alchourrón & Bulygin 1971: 123 and Alchourrón & Bulygin 1984: 353-354.

12 The same table may be found in Arriagada 2020: 12.

13 Table 1 presupposes that “obligatory” implies “permitted”. Otherwise, system 4 would not be necessarily incomplete with respect to p because p might be obligatory. I thank the anonymous reviewer for suggesting this clarification.

14 Alchourrón & Bulygin 1971: 125-127 and Alchourrón & Bulygin 1984: 354-355; Bulygin 2010: 285.

15 The closure rule belongs to a second level, as it refers to those statements in the system that constitute the first level and does not include itself in such reference. The rule is also supplementary as it may only be relied on once it has been established that a solution for the case in question cannot be inferred from ordinary rules; Alchourrón & Bulygin 1971: 135-136.

16 Alchourrón & Bulygin 1971: 176-178.

17 Alchourrón & Bulygin 1971: 140 and 142-143.

18 Redondo 2006: 309-316.

19 The universe of cases foreseen by the norms of a system, always regarding a specific universe of actions, includes the universe of cases configurated by relevant properties (their presence or absence is associated to a differentiated solution) and the universe of cases configurated by irrelevant properties (their presence or absence is connected to a solution, but in an undifferentiated manner). The universe of cases not foreseen by the norms of a system is the complementary class of the universe of foreseen cases, thereby including all those cases configurated by properties unconnected to a solution.

20 Redondo 2006: 316-317.

21 Von Wright 1963: 87 and 193-194.

22 In the same vein, see Hohfeld 2010a and Hohfeld 2010b; Kelsen 1967: 4-5, 15-16, 56-57 and 138-149; Hart 2012: chapters III and V; Ross 1961: 116-117; Ross 1972 and Ross 2009: 53-57, 96 and 130-132; Alchourrón & Bulygin 1991; Bulygin 2015. For my part, I have defended this concept of competence in Arriagada 2017: 117 and Arriagada 2018:19.

23 Guastini 2016a: 157. So called “constituted powers” are the different authorities performing the functions of state power that is one and indivisible; for instance, Carré de Malberg 1998: 249, note 1 and Troper 2001: 204.

24 Guastini 2001: 66-67; Troper 2001: 203-216; Loewenstein 1982: 68-72; Carré de Malberg 1998: 764-782; Duguit 2013: 125. On formally or substantively constitutional norms as norms about legal production, see, for instance, Kelsen 1967: 221-222 and Guastini 2016a: 121.

25 I refer to situations and relations in Hohfeld’s sense. Hohfeld 2010a and Hohfeld 2010b: duties/rights, privileges/no-rights, powers/liabilities, and disabilities/immunities.

26 Hohfeld 2010a: 35-36 and 50-60.

27 Hohfeld 2010a: 35-36 and 60-63.

28 This thesis presupposes the thesis according to which every legal norm may be reconstructed as a conditional statement whose antecedent determines a generic case or abstract operative facts and whose consequence determines a normative solution or legal result. A generic case is the description of a class of factual circumstances or properties (a class of people, objects, actions, states of affairs, etc.). A normative solution is the qualification of a class of actions as legally possible or valid or impossible or invalid, if the traditional view, limited to prescriptive or regulative norms, is extended to norms of competence. The described structure for prescriptive or regulative norms may be seen in Alchourrón & Bulygin 1971: chapters I, II and III; Moreso & Vilajosana 2004: 72-74; Guastini 2016a: 51-53.

29 Hohfeld 2010a and Hohfeld 2010b.

30 For instance, Ross 2009: 128; Ruiz Manero 2005: 124; Bayón 2009: 69-70.

31 Arriagada 2018: 15.

32 Arriagada 2018: 28-29.

33 A more detailed analysis of the Hohfeldian model may be found in Arriagada 2018 and Arriagada 2020. Here, I reproduce only what is essential for grounding the thesis and arguments of this work.

34 Hohfeld 2010a: 35-36 and 64.

35 For instance, Kramer 2000: 8; Rainbolt 2010: 4.

36 Hohfeld 2010a: 38-39, 55-60 and Hohfeld 2010b 73. See Williams 1956: 1144-1145; Rainbolt 1993: 95; Rainbolt 2010: 2 and 4; Kramer 2000: 8, 24, 26, 30-31, 35, 40; Cruz Parcero 2007: 33-34 (note N°19 herein). It is even submitted that correlative expressions are synonyms, Ross 2009: 119.

37 This classification is different to that according to which the situations of right, privilege, power, and immunity are active and the situations of duty, no-right, liability, and disability are passive. For example, Carrió 1992: 13-15. Against the Hohfeldian distinction between purely legal relations and the physical and psychological facts from which they arise (Hohfeld 2010a: 27), this last classification usually hinges on an appraisive criterion pursuant to which active situations are favourable and passive ones are unfavourable. For instance, Hierro 2000: 355-356; Vega 2015: 140-146. For a development of the reasons to prefer the proposed classification, see Arriagada 2018: 22-24.

38 According to Hohfeld (2010a: 60), a power bears the same general contrast to an immunity that a right does to a privilege. An immunity is the liberty (privilege) of a person against the power of another with regard to a legal relation.

39 Williams 1956: 1135-1142 and Ross 2009: 128.

40 Hohfeld 2010a: 60.

41 Kramer 2000: 20; Wenar 2005: 230-233; Guastini 2016a: 84-87, Rainbolt 2010: 3 and Arriagada 2018: 17-18.

42 Regulative norms are defined as those which, within a legal system, deontically qualify the performance or abstention of certain actions, or the obtention of certain goals. As a result, validity or invalidity does not follow from their compliance or non-compliance. Competence norms are understood as those which, within a legal system, determine or constitute the possibility to produce, modify, or derogate valid norms or to participate in their production, modification, or derogation. As a result, validity is the consequence of complying with them and invalidity of not complying; Arriagada 2018: 19.

43 Non-normative legal acts are those whose performance and the consequences that follows from their performance have not been determined by norms of competence. They may be performed, described, and understood without reference to any norm, but they may be qualified by regulative legal norms, for instance, driving a car. Legal acts are normative (they create, modify, or derogate norms) when their performance and the consequences that follow from their performance have been determined by norms of competence, such that they may only be performed, described, and understood according to them, for instance, drawing up a will or enacting a law; Arriagada 2018: 20.

44 Of course, duties and rights instituted by regulative norms and privileges and no-rights negating them may also refer to normative legal acts; Arriagada 2018: 20-22.

45 By authors such as Kramer (2000: 20) and Rainbolt (2010: 3).

46 Arriagada 2018: 22. This explanation, at the same time, presupposes the thesis that the two families are independent and ignores the thesis according to which second-order situations are logically reducible to those of the first order. On the first thesis see, for example, Hohfeld 2010a: 58 and Duarte d’Almeida 2016: 558-559. The second thesis is in Ross 2009: 118-121 and will not be discussed here.

47 The same table can be found in Arriagada 2018: 41.

48 A more detailed analysis of what has been explained in this section can be found in Arriagada 2018: 28-36.

49 See, for instance, Spaak 2003: 90, Lindhal 1977: 203 and Arriagada 2018: 10-15.

50 Guastini 2016a: 85-86.

51 Consequently, this distinction does not entail denying that every Hohfeldian concept is on the same level by saying that some are logically reducible to the negative expression of others. Halpin (1985: 443), for instance, holds that the concepts of privilege and no-right are redundant because they can be reduced to the negation of the concepts of duty and right. Conversely, what could be said is that the concepts I have called derived are but the complementary classes of those concepts I have called primitive. On the concepts and their complementary classes, see Strawson 1952: 7-9.

52 Arriagada 2018: 36-42. The distinction between primitive and derived concepts can be traced back to the attempts to show that permissions only make sense in relation to obligations and prohibitions; see, for instance, Ross 2009: 120 and Echave, Urquijo & Guibourg 2008: 157-158. Likewise, disabilities and immunities only make sense in relation to powers and liabilities; Arriagada 2018: 39.

53 Formulated another way, the question is whether it is about the external negation of a statement asserting the existence of the norm instituting a duty/right or disability/immunity relation, or else the internal negation of the norm instituting a duty/right or disability/immunity relation. On the concepts of external and internal negation, see Alchourrón & Bulygin 1971: 123-124.

54 Arriagada 2016: 157.

55 Hart 1983: 35-36 note Nº15 therein.

56 If a landowner authorizes a non-proprietor to enter their land, discharging them from the duty not to trespass, a privilege/no-right relation arises that is an exception to the duty/right relation that generally exists among them. Similarly, a legislature has the general power to alter the subjective legal situations of citizens, but it does not have the power to eliminate their right not to be tortured. With regard to this normative status, citizens have an immunity against the power of the legislature to which they are usually liable; For example, Wenar 2005: 226-227 and 232.

57 Guastini 2016a: 85-87.

58 Guastini 2016a: 85-87.

59 Arriagada 2018: 33.

60 Complete in the sense that they contain a closure rule that authorizes to infer: (i) from the absence of norms ascribing duties/rights, the existence of norms ascribing privileges/no-rights and (ii) from the absence of norms ascribing powers/liabilities, the existence of norms ascribing disabilities/immunities. Consistent, inasmuch as: (i) there cannot be a norm establishing a duty/right relation and, at the same time, a norm establishing a privilege/no-right relation that is contradictory with respect to the former and (ii) there cannot be a norm establishing a power/liability relation and, at the same time, a norm establishing a disability/immunity relation that is contradictory with respect to the former. Arriagada 2018: 33-34

61 See supra section 2.

62 It is so postulated, with respect to liberties or privileges, by Duarte d’Almeida 2016: 562.

63 This section reproduces part of what was exposed in Arriagada 2020: 21-22, insofar as it is essential to ground the thesis and arguments developed later on.

64 See supra section 3.1.

65 Kelsen 1967: 128, Ross 2009: 128 and Guastini 2016a: 86. Hohfeld says nothing about the possibility that duties can exist without correlative rights and, therefore, whether it is possible to consider that indirect or absolute obligations, such as those generally imposed by criminal law, are correlative with rights; Hart 1982: 183-185. This is because his approach is stipulative or definitional; Kramer 2000: 23, Rainbolt 2010: 3. According to Hohfeld’s stipulations, every situation in his scheme is direct or relational; Wellman 2002: 174. Consequently, it may be concluded that Hohfeldian concepts are not comprehensive; Duarte d’Almeida 2016: 560-561.

66 For instance, Guastini 2016a: 87. In fact, the change in one’s situation entails a change in someone else’s situation; Hohfeld 2010a: 51.

67 See supra section 3.1.

68 See the table summarizing the Hohfeldian scheme in section 3.1.

69 In addition, the exercise of a competence to alter someone else’s normative status is optional. In such a case, both the performance and the omission of the normative act altering a normative status are permitted.

70 The arguments presented in this section are developed in detail in Arriagada 2020: 22-23.

71 The disability of X and the immunity of Y can be instituted by a norm so declaring or by a norm endowing another individual Z with the power to alter p and instituting Y’s correlative liability. The reservation of power in favour of Z and the corresponding limitation of X’s power depend on it being established by an authority superior to X and Z; Guastini 1999: 440.

72 More precisely, in a normative formulation expressing a constitutive norm. I thank the anonymous reviewer who suggested this clarification.

73 The same table can be found in Arriagada 2020: 23.

74 Von Wright 1963: 193-194; Mazzarese 2012: 45.

75 Redondo 2006: 317, note N°20 therein.

76 A different problem is whether the closure rule of systems of competence is a norm of competence or a regulative norm. I will not address this problem here.

77 A different thing is for the exercise of a competence to be regulated or qualified as mandatory, prohibited, permitted or facultative by a prescriptive or regulative norm; Kelsen 1967: 118; Hart 2012: 29 and 97; Ross 2009: 131-132; Bulygin 2015: 275; Atienza & Ruiz Manero 2004: 84.

78 On the concept of condition of application, see at least von Wright 1963: 73-74.

79 Part of such an effort of adaptation has been done in Arriagada 2020: 23-24.

80 The disability and immunity referred to can be established by a constitutional norm declaring so or by a constitutional norm reserving to another constituted authority the power to alter the given status and establishing the correlative liability.

81 Thus, for instance, in the Chilean Constitution, intensional definitions of the legislative functions of co-legislative bodies (articles 32 N°1 and 46) are complemented by a list of matters subject to legal regulation (article 63). On its part, article 32 N°6 confers upon the President of the Republic the competence to dictate regulatory norms in all those matters outside the legal dominion.

82 Thus, for example, with relation to the catalogue of matters liable to legislative regulation in the Chilean Constitution; Ribera 2001: 477-478 and 480-481. In the same vein, it is not possible to establish a priori all the matters that shall be the object of regulation by the legislator, thereby the latter, and not the constitutional authority, is the one who determines the aspects of social life that are legally relevant to this effect; Cordero 2009: 433. Stressing once again the unlimited normative ability of the Chilean legislator, there is a veritable “substantive lacuna” of legal regulation that results in a problem of indeterminacy of the facts liable to regulation; Kazor 2013: 63 and 71. Further, the attributive sphere of the legislative function is a competence of attribution that is not closed constitutionally; Kazor 2016. On the non-exhaustive character of the aforementioned catalogue, see also García Pino & Contreras 2014: 640-641. This is interesting if we consider that the lack of exhaustiveness seems more characteristic of the dogmatic part of constitutions often characterized for being the result of wide political agreements; for instance, Atria 2016: 274-281 and 285 and Atria 2005: 27.

83 Carré de Malberg 1998: 257 and Carré de Malberg 2011: 35-37. For example, the legal reservation contained in the sixth transitory clause of the Chilean Constitution is not of a substantive character, but formal; Kazor 2016: 23.

84 Ferrajoli 2016 :95, 120-121, 379-381. See also Laporta 2007: p. 87 and Bustos Ramírez 2007: 380-381.

85 Raz 1999: 150-151

86 I am unable to conduct this analysis on this occasion.

87 Ruiz Manero 2005: 119-121 and Ruiz Manero 2010: 300-301; Bayón 2009: 49-52 and 55.

88 Bulygin 2010: 292.

89 I understand as an interpretative rule every rule specifying a criterion to attribute meaning to one or more normative dispositions.

90 Guastini 2016b: 142-146.

91 Ruiz Manero 2010: 301-303.

92 Constitutional jurisdiction with regard to norms of inferior hierarchy is only possible when substantively constitutional norms are also formally constitutional. This means that the decision to annul an unconstitutional norm for reasons of content is not based on the norm itself but on the fact that it was not produced by the organ and according to the procedure of constitutional reform; Kelsen 2009: 302 and 311-314.

93 This does not cover just the judicial and administrative branches, but the legislative as well when it is subject to norms of constitutional rank, as long as the Constitution is rigid; Guastini 2001: 117-120 and Guastini 2016a: 135-137.

94 Guastini 2018: 53-60. In the same vein, four different conditions of validity of a norm can be distinguished: (i) production by the competent organ; (ii) observance of the procedure set forth for its production; (iii) reference by the norm to a certain substantive sphere of regulation and not to others; and (iv) that the content of the norm is not contradictory with that established by a superior norm; Prieto Sanchís 2009: 76-78.

95 It is said that, whereas the violation of type (iv) norms gives rise to a substantive unconstitutionality, the breach of type (iii) norms is a subspecies of formal unconstitutionality for breaching type (i) norms, as the latter are not limited to conferring the competence to produce legal norms upon certain organs. Said competence is conferred within certain limits referring to matters that can be the object of regulation by said organs; Ezquiaga 2001: 68 and Prieto Sanchís 2009: 77. In fact, it is generally admitted that the personal and substantive aspects of competence are always linked; Carrió 1994: 254 and Ferrer 2000: 124-125.

96 There are some whom in the sphere of competence norms do not distinguish type (iii) from type (iv) norms. For instance, Rodríguez, Orunesu & Sucar 2001: 22-29; Ross 1961: 116 and Ross 1972. Elsewhere, Ross admits the distinction, but does not redirect it to two different types of competence norms, but only to one: that of norms determining substantive competence. Moreover, when he analyses the elements of norms in general, Ross notices that the distinction is vague because the description of the theme (solution) implies, to a certain extent, the description of the situation (case); Ross 2009: 96, 108 and 130.

97 For example, Laporta 2007: 99-100; Prieto Sanchís 2009: 75-78. The former notwithstanding, the content of infra-constitutional norms could be completely predetermined by the Constitution; Guastini 2001: 121-123.

98 Martin 1993: 30.

99 Hart 1982: 191 and Hart 2012: 69 and 314, note on pages 66-71.

100 For instance, Hart 1982:190-191.

101 For instance, see Böckenförde 2001: 48-49 and García de Enterrría 1999: 139.

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References

Electronic reference

María Beatriz Arriagada Cáceres, “The closure of the systems of legal norms of competence”Revus [Online], 43 | 2021, Online since 28 June 2021, connection on 20 October 2021. URL: http://journals.openedition.org/revus/7374; DOI: https://doi.org/10.4000/revus.7374

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About the author

María Beatriz Arriagada Cáceres

Doctor in Law, University of Chile. Professor and researcher at the Diego Portales University School of Law, Santiago (Chile). Researcher at the Research Centre for Philosophy of Law and Criminal Law, University of Valparaíso (Chile).

Address: Avenida República 112 - Comuna de Santiago - Santiago de Chile - Chile.

E-mail: maria.arriagada@udp.cl

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