- 1 Alchourrón & Bulygin 1971: 2. On the distinction, see (Hart 1994: 79).
- 2 Alchourrón & Bulygin 1971: 3.
1At the beginning of Normative Systems, which is probably the most sophisticated piece of legal science written in the 20th century, Alchourrón and Bulygin point out the hardware differences between moral and legal systems (at least when the contemporary legal systems, combining primary and secondary norms [Hartian style], are taken as their archetype).1 Among other reasons, this is because they stress the inexistence of a moral legislator, the inexistence of moral courts (which also means no official bodies for converting prima facie positions into definitive ones), and the significant fact that, as opposed to legal systems, it is particularly difficult to identify moral systems and, even more, the norms they entail.2
- 3 A good example (among many) is the statement (Marmor 1997: 16) by which one should go into the root (...)
- 4 Legal positions are a subject matter in which the contingency of legal systems plays almost no role (...)
2Accepting how incontestable these reasons seem to be, a relevant distance between moral and legal systems has to be recognized. And it follows from that distance that the transposition of normative propositions from one field to the other is, for the intellectual honesty of the enterprise, particularly delicate: it is possible to have true propositions regarding moral norms that are false with legal norms (and vice-versa).3 Accordingly, and in order to keep a very precise object of inquiry, it is relevant to say that the next pages focus solely on legal norms. This means that the present approach to legal positions is strictly based on norms belonging to a legal system (no matter which).4
- 5 Bulygin & Mendonca 2005: 46, Kelsen 2005: 31.
- 6 Regarding these norms (criteria) of identification (recognition), Caracciolo 1986: 51, Bulygin & Me (...)
- 7 Alchourrón & Bulygin 1971: 86, Moreso & Navarro 1998: 278.
3It is also relevant to say that a legal system is understood here as a set of norms or, equivalently, that such system is a set that has norms as its members.5 And since membership to the set is defined by legality and deductibility, it follows that each legal system is a set containing only the norms produced through the exercise of competence and those that logically follow from them.6 Furthermore, deductibility does not merely lead to the membership of other norms. Regardless of what composes a complete norm, from that criterion of membership equally follows that norms also include the deontic consequences somehow implied by a primitive one (to be addressed later on).7
- 8 Navarro & Rodríguez 2004: 117. The dependency that legal positions have from norms has strong metho (...)
- 9 Also, strictly addressing the legal domain, Hohfeld 1919: 26, Kramer 1998: 8. On positions dependin (...)
4A presupposition of a legal system as a set of norms entailing all its logical deontic consequences is the basis upon which the analysis of legal positions should be carried out. It shows, specifically, that the positions “existent” in a legal system are limited to those conferred by its norms (and their deontic consequences).8 Besides removing normative positions that are here irrelevant (such as the moral ones), this means that the recognition of a position in a legal system depends (as a necessary condition) on a specific deontic modalization of action.9 A table of legal positions must include, therefore, only and no other than the various (types of) positions that are given by the norms belonging to the set.
- 10 Atomicity, then, stands for irreducibility (or indivisibility), which is what Hohfeld actually mean (...)
5Within the knowledge that the Hohfeldian analysis gave to legal science one specific point is a clear game changer: atomicity (understood as the irreducibility of a legal position). While searching for the disambiguation of the word “right”, Hohfeld arrived at a kind of “indivisible unit”, from which he was able to create a table of legal positions in which all can be predicated as atomic.10 Atomicity is, undeniably, an outstanding tool. It provides the means to understand complex legal positions, to understand the components they are composed of and, fundamentally, to understand the connection between an irreducible normative position and the (single) deontic modality that stands as its ground.
- 11 Since only atomicity explains the internal difference (through their atomic components) between dis (...)
- 12 A problem transversally harming the whole will theory (Kramer 1998: 64). Examples of molecularity w (...)
6Whatever the future of the Hohfeldian legacy, one thing seems certain: once atomicity is lost (or it is not taken into full account), no improvements whatsoever can be made. The reason is simple: losing atomicity means losing the unique basis capable of explaining the morphological diversity of a molecular legal position.11 Therefore, whenever no entailment is provided, assertions that claim-rights contain a claim to enforcement (for instance) are playing a different game.12 So, when taken seriously, atomicity draws a line that cannot be crossed (at least if cognitive growth is to be considered by legal science as a relevant epistemic value within the present topic).
- 13 Hohfeld 1919: 38. On this point, Kocourek 1921: 27, O’Reilly 1999: 275.
- 14 Hohfeld 1919: 38. Correcting the so-called Hohfeldian mistakes: Williams 1956: 1138; Robinson, Cova (...)
7It is known that Hohfeld made some mistakes. That is the case with opposites instead of contradictories, when he says that a liberty is the opposite of a duty (as presented in his scheme of jural relations). Since, however, when one is true the other is false, a liberty is the contradictory of a duty (and not its opposite).13 That seems to be also the case when he says that a no-right is the correlative of a liberty (something said in the exact same sentence): bearing in mind the square of oppositions, the correlative of a liberty is a no-right not (a no-right is actually the correlative of a liberty not).14 As is also visible in other parts of his seminal work, Hohfeld uses unilateral permissions but not always with complete accuracy.
(i) the following squares show the Hohfeldian positions already adjusted; the squares show the known contradictories (ct) and correlatives (co) in Hohfeld’s table of first order legal positions:
- 15 Which is to say that duties and liberties have no content besides being the correlatives of claim-r (...)
8These mistakes are not, however, particularly problematic. What is problematic in the Hohfeldian understanding is his specific engineering of correlativity, designed with a strategy of negations and contradictions, leading to the insufficient outcome of deontic positions without any independent content: the case of claim-rights and no-rights (now only regarding first order legal positions). To put it differently, the point rests on a conception of correlativity that, as a material equivalence, says nothing about the content of those positions and the deontic status of their holders: claim-rights and no-rights have no content besides being the correlatives of duties and liberties.15
(ii) a claim-right is “only” the correlative of a duty and has no deontic content: no one knows which deontic modality the holder is under; differently, the duty holder is in the position corresponding to being under an obligation; this might be expressed by the following scheme of correlativity:
claim-right to φ ↔ Oφ → duty to φ
(iii) a no-right is “only” the correlative of a liberty not and has no deontic content: no one knows which deontic modality the holder is under; differently, the liberty holder is in the position corresponding to being under a permission; this might be expressed by the following scheme of correlativity:
no right to φ ↔ Pφ → liberty to φ
- 16 On that asymmetry, Halpin 2019a: 86, Lyons 1970: 45. This asymmetry has nothing to do with the one (...)
- 17 It is important to note that by “result of action” it is meant (as in von Wright 1963: 39) the stat (...)
9Such emptiness in two of the four first order Hohfeldian legal positions has deeper causes, though. Besides a false symmetry in each line of correlativity, the outcome of legal positions without an independent content apparently comes from a simplistic and rather reductive conception of normative action (uncritically accepted).16 Actually, for Hohfeld, each line of correlativity ligates two holders sharing one single action that is assigned to only one of them. This is because Hohfeld thought that the exercise of a single action was sufficient to bring about its result, a premise that led him to disregard any other possible correlated action (by the holder of the correlated position).17
(iv) for Hohfeld, the duty ↔ claim-right line of correlativity is based on the single action φ (paying one-thousand dollars or staying off the land) assigned to the duty bearer; for Hohfeld, φ-ing is a sufficient condition to bring about the result (own the money or stay off the land).
(v) for Hohfeld, a liberty ↔ no-right line of correlativity is based on the single action φ (eating a shrimp salad or occupying Whiteacre) assigned to the liberty holder; for Hohfeld, φ-ing is a sufficient condition to bring about the result (have eaten the salad or occupied Whiteacre).
- 18 In the Hohfeldian scheme, since action is only assigned to one agent (Finnis 2011: 378, D’Almeida 2 (...)
- 19 A problem already posed and analyzed by Lindahl (1977: 126; 2001: 160) for claim-rights and widely (...)
10Hohfeld’s understanding of action seems, however, to fall short. When considering that no result can be brought about without an interaction between both correlated holders, Hohfeldian correlativity is unable to accommodate the fact that some co-action from the no-right or the claim-right holders is (if possible) a necessary condition to achieve the result of the main action.18 And if we accept this, we probably have to admit that norms present correlativity as a structural scheme with space for co-action and, furthermore, with space for its specific deontic modalization.19 But if this is somehow correct, then Hohfeldian correlativity is clearly insufficient.
(vi) the Hohfeldian duty ↔ claim-right line of correlativity does not accommodate the fact that φ-ing by the duty bearer might be insufficient to bring about the result; if co-action from the claim-right holder is also necessary (e.g., meeting to receive the money), then correlativity implies an independent space for co-action by the claim-right holder and a specific deontic modalization for such co-action.
(vii) the Hohfeldian liberty ↔ no-right line of correlativity does not accommodate the fact that φ-ing by the liberty holder might be insufficient to bring about the result; if co-action from the no-right holder is also necessary (e.g., not grabbing the salad eater), then correlativity implies an independent space for co-action by the no-right holder and a specific deontic modalization for such co-action.
- 20 Hohfeld 1919: 60. On Hohfeld’s immunities, Edmundson 2004: 91, Corbin 1919: 170.
11Showing positions without content or disregarding co-action are not, though, the only problems in the Hohfeldian system of jural relations. Looking into the table of second order legal positions, some other problems become visible, namely, in his disability ↔ immunity line of correlativity (but not only). For Hohfeld, an immunity is the correlative of a disability, which is the absence of competence. As a kind of right, an immunity is, then, the position one has when facing someone without the power to change a legal position.20 It represents, consequently, the other Janus face of a not having power: it belongs to a “symmetry” between not being habilitated to produce deontic consequences and not being targeted by them.
- 21 This point was already unveiled in Kocourek 1921: 34 and developed later on in Kocourek 1923: 154. (...)
- 22 On the difference between norms and normative propositions (the difference between prescribing “X h (...)
12Such a conception is, however, problematic. Independently of the conception of competence one may adopt, there is no understanding of such a notion that is able to justify that the contradictory of a position based on constitutivity (a disability) has to be seen as a legal position in itself. Accordingly, it is also difficult to understand how not having a competence can be the basis for a correlated legal position (immunity) that, in the same way, has never been conferred by any norm of the set.21 Therefore, the strategy of negations and contradictions here seems to have taken Hohfeld too far. And one wonders whether he was not actually confusing norms with normative propositions.22
- 23 Circumscribing norm individuation to those explanatory purposes, D’Almeida 2015: 159. On the broade (...)
13Assuming that a legal system is a set of norms implies that each norm is an element of the set and that “a norm” is the unit of the system. Considering that norms are enacted by normative authorities using a natural language and that no match exists between an utterance and a norm, the immediate problem of norm individuation is posed. In simple terms, the problem involves determining what a norm is or, more accurately, what a complete norm is. At stake is not only the issue of how to represent the legal system for some explanatory purposes, but to define under which criteria can one say that there is a norm. In other words, to list the necessary conditions to have a norm.23
- 24 A relevancy inversely proportional to the attention the topic has deserved so far. On the relevancy (...)
- 25 A good example is the norm in the sentence “human life is inviolable” (included in some constitutio (...)
14The relevancy of norm individuation is unquestionable.24 If it is unavoidable for many tasks performed in legal science, namely, to classify norms or to understand how norms conflict with each other, it is in the field of legal positions that norm individuation becomes decisive: to know which legal positions are given by a norm depends on knowing what a (single) norm is. On the other hand, norm individuation is also a remarkable tool for eliminating usual misunderstandings similar to those of breaching atomicity: withdrawing from one norm, without criteria, several disconnected positions.25 Individuation thus provides the key to knowing which positions (no less and no more) are conferred by a (single) norm.
- 26 On the frame of enacting norms, Frändberg 2018: 7. On its linguistic process, Duarte 2011: 111.
- 27 Raz 1980: 141. On norm individuation as a task of legal science, Spaak 2003: 98.
15It is recognized that norm individuation faces the problem that law has no criteria for such demarcation: normative authorities enact norms without considering norms as units and the written materials they present are solely organized under some linguistic conventions.26 A single norm sentence matching one norm is, therefore, a matter of chance (under some criterion of individuation). Given that the law has no natural kind serving this specific purpose, it follows that norm individuation has to be constructed as a scientific convention.27 In other words, only an intersubjective agreement on what a complete norm is (within the scientific community) may allow us to mean the same thing when we speak about a norm.
- 28 Raz 1980: 72.
- 29 Something Raz points out in his relevant third guiding requirement (Raz 1980: 144).
16Among the criteria already presented to achieve such goal, it seems that the Razian strategy of looking for the minimal notion is by far the best.28 This is not only because it leads to an individuation closer to its usual understanding within the legal practice, but, and primarily, because it implies all and no more than the necessary conditions for regulating behaviour: it is presented, consequently, as the atomistic kind or, in other words, as the “necessary morphology” when action has to be deontically modalized.29 Under this approach, a (complete) norm is (or it is suggested to be, for conventional purposes) the sum of the necessary conditions for an action to be permitted, forbidden, or mandatory.
- 30 Sartor 2009: 36, Nino 2003: 72.
17With this frame, necessary conditions for regulating behaviour are: (i) an action; (ii) a deontic modalization of that action; and (iii) the conditions under which the deontic modalization of the action depend. It follows that regulation of behaviour is impossible if one of these conditions is absent (some explanations for the third will be given later on). These three necessary conditions lead to the known elements of norm structure, which in their conditional order are: (i) antecedent; (ii) deontic operator; and (iii) consequence.30 For present purposes, the complete analysis of each one is unnecessary. To understand how norms confer legal positions, only some features of those elements have to be considered.
(viii) the norm sentence (NS) “when one loses faith in humanity it is mandatory to listen to Mozart’s Magic Flute” has the norm (N) “when one loses faith […]” (antecedent [lfh]), “it is mandatory” (deontic operator [O]) to “listen to Mozart’s Magic Flute” (consequence [lmf]): “lfh ⇒ O lmf”.
(ix) any change in the content of each element creates a different norm (identity of norms based on the contingency of each element’s content); in the antecedent: “wr (when it rains) ⇒ O lmf”; in the deontic operator: “lfh ⇒ F (forbidden) lmf”; or in the consequence: “lfh ⇒ O s (sing)”.
- 31 von Wright 1963: 73.
- 32 As von Wright (1963: 73) puts it, it is the condition for performing the corresponding elementary a (...)
18Regarding the antecedent, the main point here is that, independently from others possibilities expressed by the normative authority, a condition inherent to the possibility of exercising the action foreseen in the consequence has to be therein recognized.31 This means that, regardless of others (necessarily expressed), all norms contain the (usually unexpressed) condition of the opportunity to perform the action deontically modalized.32 Thus, when this condition is not fulfilled (the action is not possible), the norm at hand is not applied, despite being in force like all the others within the set; when the condition is fulfilled (the action is possible), it is a necessary (and possibly sufficient) condition for triggering the consequence.
(x) in “when one loses faith in humanity it is mandatory to listen to Mozart’s Magic Flute” (formally, lfh ⇒ O lmf), the antecedent has one expressed condition: “when one loses faith […]”; yet, it also has an opportunity condition (o) inherent to the action “to listen”: it has to be read as “o ∧ lfh ⇒ O lmf”.
(xi) in “o ∧ lfh ⇒ O lmf”, the condition “o” is necessary but not sufficient to the obligation of listening to be applied (given “lfh”); however, in “everyone is allowed to sing” (“o ⇒ P s), the condition “o” is necessary and sufficient: whenever the action is possible, it is (effectively) permitted.
(xii) a N such as “o ⇒ P s” (everyone is allowed to sing), although in force at some point in space and time, it is only applied whenever the condition “o” is filled; there is no opportunity of singing when the addressee is a person in a coma: in such a situation, “o ⇒ P s” is not triggered.
- 33 On “ought implies can”, von Wright 1963: 108, Hintikka 1970: 84.
- 34 Which means that, from now on, “opportunity” only means “internal possibility”. On the topic, von W (...)
19Given its consequences on the analysis of legal positions, providing some precision to what is meant by the “opportunity” condition is of the utmost importance. Rigorously, it is not a mere reference to an external state of affairs where the exercise of the action at hand becomes possible (which is already presupposed). Differently, it is a condition entirely related to the mental and physical possibilities of acting, intrinsically linked to the “ought implies can” that underlies law.33 Therefore, the deontic modalization of an action is only triggered whenever its performance is, in this sense, “internally possible”. Of course, it is not a matter of personal skills as well, but a strict matter of (human) ability.34
(xiii) the opportunity condition in “everyone is allowed to sing” (o ⇒ P s) is not a reference to an external context, such as a score to follow (if one wants to sing something not memorized); it is related to the internal possibility of acting (singing): it is, then, an internal possibility condition (ip).
(xiv) the internal possibility condition in “ip ⇒ P s” is not related with personal skills as well; if Josepha is not capable of singing “Der Hölle Rache” as “Queen of the Night”, this does not mean that the internal possibility condition is not met: she is nevertheless capable of singing.
- 35 Alchourrón & Bulygin 1971: 60, Frändberg 2018: 101.
- 36 O’Reilly 1995: 285, Hurd and Moore 2018: 309.
- 37 Hilpinen 1997: 85, Bach 2010: 50.
20Regarding the deontic operator, two points are relevant here. The first point concerns the fact that it is within this element that the deontic status of the action foreseen in the consequence is defined. So, and using the square of deontic modalities, it follows that action φ can be forbidden, mandatory, positively permitted, or negatively permitted.35 Given the accepted meaning of these words, from a prohibition it follows that the agent has a duty to ~φ; from an obligation, a duty to φ; from a positive permission, a liberty to φ; and from a negative permission, a liberty to ~φ.36 Of course, action is here always understood both as an action in the strict sense (e.g., singing) and as an omission (e. g., not singing).37
(xv) the deontic status of an action φ gives rise to specific legal positions; therefore, obligations to φ and to ~φ confer the duties to φ and to ~φ (contraries [c]) and permissions to φ and to ~φ confer the liberties to φ and to ~φ (implicated [i]).
(xvi) the following square shows the correspondence between the four deontic modalities and the legal positions they confer with regard to some given action φ:
- 38 The predicate “contradictory” is used here because when φ is true ~φ is false. As it is known, the (...)
- 39 A complete deontic modality regarding action. It is, then, what can be designated as the “action co (...)
- 40 Manero 2018: 44, Raz 1975: 161.
- 41 For the following triangle, Halpin 2003: 49. On the “facultative” operator (bilateral permission), (...)
21The second point concerns the deontic status of the “contradictory action” (the deontic status of ~φ when only φ is regulated).38 The point is that there are good arguments to sustain that, like prohibitions and obligations, permissions can also be understood as a complete deontic modality.39 That is, in the same way that the prohibition of φ entails ~φ to be mandatory, and the obligation of φ entails ~φ to be forbidden, the permission of φ can also be seen as ~φ to be permitted as well.40 An understanding of permissions such as this one means that being permitted to φ (or ~φ) entails both φ and ~φ and that the agent has the “privilege” of choice: the agent has to decide her own course of action.41
(xvii) a bilateral permission is a complete deontic modality since it aggregates two unilateral permissions: with “everyone is allowed to sing” (ip ⇒ P s), both the act “singing” and the omission “not singing” are permitted; thus, the square of oppositions can be transformed into a triangle:
- 42 Action completeness is, naturally, relevant: given the unstable and also less informative nature of (...)
- 43 Ratti 2018: 92. Actually, for ~φ to be forbidden, φ would have to be mandatory, meaning that the no (...)
22Two main reasons allow reading permissions as bilateral. The first reason regards the fact that, once the equivalences between O φ and F ~φ and between F φ and O ~φ are assumed, it turns out that permissions also ask for their own completeness. Consequently, one has to know if the permission of φ implies ~φ to be permitted as well or, differently, to be forbidden.42 However, since when φ is permitted we do not know if ~φ is permitted or forbidden, and it would be rather odd to assume that it is forbidden (because absence about ~φ naturally leads to a weak permission), at least one can say that if the normative authority does not explicitly state the prohibition, then ~φ has to be understood as permitted.43
- 44 Ratti 2018: 92, Guibourg, Echave, and Urquijo 2008: 134.
23The second reason rests on the undisputed fact that the meaning of the word “permission” (or the meaning of the deontic verbs used to express it), when normative authorities enact norm sentences, is clearly bilateral. In other words, whenever such authority states action φ as permitted, the pragmatic understanding of the community of speakers is that ~φ is permitted as well. Accordingly, since norms are linguistically expressed, it would not make much sense to think that the shared meaning of “permission” could somehow be substituted by its logical significance.44 Accepting that permissive norm sentences confer bilateral permissions seems to be, then, pragmatically unavoidable.
(xviii) with “everyone is allowed to sing” (ip ⇒ P s) there is a permission to carry out the action “to sing”; the norm sentence pragmatically means “P s ∧ P ~s”.
(xix) the triangle is now a line of contradiction; each imposition of φ or of ~φ contradicts the permission of φ and~φ; the permission of φ and ~φ contradicts either with the imposition of φ or of ~φ:
O φ ⊻ φ ↔ P (φ ∧ ~φ)
- 45 Von Wright 1963: 71, Ross 1968: 107.
- 46 For the distinction between ought to do and ought to be, Castañeda 1972: 675. For the distinction b (...)
- 47 On “tû-tû”, Ross 1957: 816. Also, Brożek 2015: 16.
24As for the consequence, the initial observation is that it is necessarily related to action, the object of the deontic modalization at hand.45 Therefore, it makes no difference whether a norm authority simply describes a type of action (ought to do) or a state of affairs to be achieved (ought to be), as it is irrelevant whether it describes a specified action or a set of unspecified ones.46 The same is even valid for the more distant cases of a “tû-tû” type of consequence: one may find here not only the action of conferring (or protecting) a status, but also the actions foreseen in the (remitted) subset of norms the status contains.47 So, no matter the description, the consequence always regards action.
(xx) an “ought to do” norm has a consequence about action: in “it is forbidden to lie (l)” (F l), the action is “lying”; an “ought to be” norm has a consequence also about action(s): in “it is mandatory to be virtuous (v)” (O v), “v” amounts to “carry out any act suitable to reach the state of virtuousness”.
(xxi) a consequence with a specified action is about action: “everyone is allowed to sing” (P s); but the same is valid with a consequence with unspecified actions: “everyone is allowed to make music (mm)” (P mm) refers to actions (to play the Glockenspiel ∨ to sing “Der Vogelfänger bin ich ja” ∨ …).
(xxii) a “tû-tû” consequence is also about action: “virtuous people have the right to belong to Sarastro’s Brotherhood” contains the action of conferring the “status (s)” (O s) and also remits to actions foreseen in the status subset of norms (O to tell the truth ∧ O to act with virtue ∧ …).
- 48 A deontic action is, then, the exercise of a competence norm. Ross 1958: 216), Hage 2005: 222.
- 49 A non-deontic action is the action carried out under any other norm (besides competence norms). Thi (...)
25Actions foreseen in the consequence of a norm can be divided between deontic and non-deontic. A deontic action is one that produces deontic consequences; that is, the action that, operating at the legal level, changes the law or the existing legal positions (direct legal consequences).48 A non-deontic action does not produce those consequences: it only works at the level of the empirical world.49 When legal consequences follow from a non-deontic act, that is due to the fact that such act triggered the consequences foreseen in other norms (indirect legal consequences). Accordingly, and only taking into account what they are, non-deontic acts never imply direct legal consequences.
(xxiii) when a normative authority states that “it is forbidden to sing inside Sarastro’s Temple”, the law has been changed: a deontic action (to forbid singing inside the Temple) has been carried out; it is an action that directly produces legal consequences (independently from triggering other norms).
(xxiv) when the Three Ladies offer Tamino the Magic Flute, all their legal positions have been changed: a deontic action (transfer of ownership) has been carried out; it is an action that directly produces legal consequences (independently from triggering other norms).
(xxv) when Tamino moves from Java to Egypt and becomes a resident there, he has just carried out a non-deontic act; moving did not produce any direct legal consequences: changes in his legal positions are due to the fact that he now fills the antecedents of several Egyptian norms.
- 50 von Wright 1963: 36. Even action foreseen in an individual norm seems to be generic (differently, v (...)
26A final observation regarding action is necessary. Regardless of being a general or a particular norm, or containing a specified action or a set of unspecified ones, an action normatively foreseen is always a generic action: that is, it is a category (of action) that can be empirically instantiated (at some point in space and time).50 So, when a norm modalizes action φ as forbidden, it means that all individual acts of φ-ing are prohibited, no matter other contextual variables or properties. On the other hand, φ being mandatory and doing φ are facts from different worlds: it is only the individual act of φ (as a token) that will contribute to realizing the ideal state of affairs the obligation of φ is.
(xxvi) a NS such as “it is forbidden to lie (l)” expresses a N (ip ⇒ F l) foreseeing in its consequence the generic action of “lying”; whenever Papageno lies (in a space-time uniqueness [when he says that he was the one who killed the serpent]), he is actually instantiating (and violating) “ip ⇒ F l”.
(xxvii) “ip ⇒ F l” is an ideal state of affairs: whenever its conditions are met, some act ought to be omitted; realizing such ideal state of affairs depends, however, on a match with the real state of affairs (for instance, when Papageno says that the serpent was effectively killed by the Three Ladies).
- 51 Bulygin & Mendonca 2005: 16, Ross 1968: 107.
- 52 The subsequent notation of norms (and because of addressees) follows the suggestions made in Herres (...)
27Any deontic content establishing that an action, under some conditions, is permitted, forbidden, or mandatory is incomplete if it does not demarcate a circle of addressees: someone has to be permitted, prohibited, or obliged to do something. Such triviality points, though, to the relevant fact that norms also have a subjective element or, in other words, that addressees are also a necessary condition for the regulation of behaviour.51 Independently of its specificities (for now), a set of people has to be identified at the connection between the deontic operator and the consequence: thus, “someone” has the duty to ~φ whenever φ is forbidden. This “someone” set may be designated as “primary addressees”.52
(xxviii) the NS “it is forbidden to steal the Magic Flute (smf)” contains a N such as “ip ⇒ F smf”, a prohibition that seems to be addressed to everyone; however, and regardless of how to delimitate its addressees, this norm foresees a set of primary addressees {PA}.
(xxix) “ip ⇒ F smf” could be written as “∀x (xsmfip ⇒ F xsmf)” (for all x, if there is an internal possibility to smf to all x, it is forbidden to smf to all x); for the reasons already mentioned, another notation is used : “ip ⇒ F {PA} smf”, where the brackets stand for the set of primary addressees.
- 53 On addressees and correlativity, Frydrych 2019: 15, Lyons 1970: 54. Also, next point 9.
28Identifying only a set of addressees is still a reductive understanding of norms. Once correlativity is taken into account, it follows that norms also comprise a second set, specifically, the one containing those holding the correlative position. Recognizing a second set of addressees has various (and complex) consequences on the analysis of norms, which must, however, be seen as an implication of accepting correlativity: if “someone” has the duty to φ (under the imposition of φ) and this means that “someone correlative” has the right to φ, then it follows that two positions are being given by the exact same norm.53 This “someone correlative” set may be designated as the set of “secondary addressees”.
(xxx) in “ip ⇒ F smf” (it is forbidden to steal the Magic Flute), a set of primary addressees was already acknowledged: those that are forbidden from stealing the magical instrument the Three Ladies gave to Tamino; therefore, that N has to be read as “ip ⇒ F {PA} smf”.
(xxxi) however, once there is a set of persons forbidden from stealing the magical instrument, there must be a second set of people correlatively connected with the prohibition (the owners of the instrument): they are the secondary addressees {SA}; the norm can be formalized as: “ip ⇒ F {PA} smf {SA}”.
- 54 It should be noted that this norm morphology is a suggestion of norm individuation merely regarding (...)
29Adding the previous elements is enough to present what might be seen (for norm individuation purposes) as a complete norm. As just said, it comprises three material elements and two subjective ones, each one of them taken as a necessary condition for the regulation of behaviour. In the former, an action (with the mentioned variations), the conditions under which the deontic modalization depend (omnipresent due to the internal opportunity condition), and the deontic modalization itself. In the latter, the set of primary addressees and, given correlativity, the set of secondary addressees. Accordingly, regulation provided by a norm depends on the specific contents a normative authority assigns to each one of these elements.54
(xxxii) the N in “Sarastro’s Brotherhood has the duty to provide health care (hc) to citizens” has five elements: in “ip ⇒ O {Sarastro’s Brotherhood} hc {citizens}”, an antecedent, a deontic mode, a consequence, and two sets of addressees are recognizable (however, the antecedent is not expressed).
(xxxiii) the N in “everyone is allowed to sing” has five elements: in “ip ⇒ P {physical persons} s {SA}”, an antecedent, a deontic operator, a consequence, and two sets of addressees are recognizable (however, one set of addressees and the antecedent are not expressed).
- 55 For known reasons (Williams 1956: 1131, Wenar 2005: 226), “liberty” is effectively a better designa (...)
30A norm with a permission to carry out an action confers the primary addressee the legal position commonly called a “liberty”.55 Therefore, and regarding an action φ, this means that the addressee is allowed to do φ, which is also valid to the forbearance from acting if the permission is connected with the consequence ~φ. Whenever a permission is understood as bilateral (the common situation in contemporary legal systems, as mentioned above), a liberty comprises both φ or ~φ. In such a normative scenario, holding a permission involves the inherent choice of φ-ing or ~φ-ing. So, a liberty is a legal position of personal autonomy: it is the way to give the agent an option regarding her own course of action.
(xxxiv) in “everyone is allowed to sing” (ip ⇒ P {PA} s {SA}), a primary addressee, for instance Pamina, has the liberty to sing; since it contains a bilateral permission, this norm allows Pamina to sing and not to sing (both are permitted by the same norm).
(xxxv) the bilateral permission in “ip ⇒ P {PA} s {SA}” gives each primary addressee a sphere of personal autonomy: thus, as one of them, Pamina may decide her course of action inside the scope of what is being permitted (a choice is given about singing).
- 56 On conflicts and the underlying distinction between prima facie and all norms considered rights, Bo (...)
31The scope of a liberty is entirely demarcated by the generic action foreseen in the consequence. Accordingly, a specific liberty comprises the exercise of all possible variables of the action at hand: notwithstanding the difficulty in qualifying some individual acts as tokens of the generic action foreseen, this does not deny, despite such borderline cases, that to be permitted to do φ is to be permitted to do φ whatever φ-ing can be. No doubt, some variables of φ can intersect the antecedent of other norms and cause a conflict between norms; that is, however, a different problem.56 At the prima facie level of a liberty, what matters is that when φ is permitted, it is permitted regardless of “how” the action is carried out.
(xxxvi) the scope of the liberty conferred by “ip ⇒ P {PA} s {SA}” is demarcated by all variables of the action “to sing”: this means that Pamina is allowed to “~s”, to “s1”, to “s2”, and so on, or to “s1a” or “s1b”, or “s2c” or “s2d”, and so forth; given the endless number of variables and their endless possible combinations, variables of the action “to sing” are infinite.
(xxxvii) within that scope, some variables of action may intersect the antecedent of other norms (with their own deontic modalization); thus, if Pamina sings something seriously attacking the honour of Monostatos, then she also triggers the N in “it is forbidden to harm personal reputation”; however, her singing is still a prima facie permitted act exclusively under “ip ⇒ P {PA} s {SA}”.
- 57 Halpin 1997: 120, Ross 1958: 184. On the other hand, this is not to be confused with the Hohfeldian (...)
32Accepting that the exercise of a liberty comprises all variables of the action at hand does not mean that the permissive norm gives a different legal position (a different liberty) for each one of the possible courses of action. Understanding the difference between the legal position itself and the variables of the action foreseen is crucial. While variables of action regard the various ways by which the agent can perform the action, the legal position conferred by the permissive norm is always unique: an agent is always exercising the exact same liberty to φ when she chooses to do φ in one way or another.57 It nearly goes without saying, then, that variables of action are not averse to the atomicity of a specific liberty.
(xxxviii) with “ip ⇒ P {PA} s {SA}”, variables such as “~s”, “s1”, “s2”, “s1a” “s1b”, “s2c”, or “s2d”, for instance, are just different ways to exercise the liberty to “s”; no matter which is the combination of variables chosen by Pamina in the individual act she always exercises the same atomic position.
- 58 Von Wright 1963: 55. Also, Navarro 2019: 69, Spena 2012: 171.
33As follows from the internal possibility condition, the exercise of a liberty is dependent on such possibility: the holder of the liberty to φ can exercise the legal position if she is in a condition to do so. Such internal possibility is, then, a necessary condition for the exercise of a liberty. However, if an impossibility of exercising that position might arise from some limitations of the holder, it can also arise from the action of third parties whenever they defeat the internal possibility of the liberty holder to act.58 Accordingly, if in the former there is no connection between the holder and the secondary addressees, in the latter, it is a fact that impossibility is only due to how these behave regarding the holder’s act.
(xxxix) with “ip ⇒ P {PA} s {SA}”, Pamina has the liberty to sing; if Pamina is in a comatose state, she cannot sing, a scenario preventing the norm from being triggered: although in force, the permission is not applied at all; here, secondary addressees are, however, irrelevant for such effect.
(xl) however, Pamina can be prevented from singing because Monostatos has knocked her unconscious; such scenario prevents the norm from being triggered as well: the permission is not applied to her; this impossibility, however, is totally due to the action of Monostatos.
- 59 It is important to note that defeating the internal possibility is not the result of a conflict bet (...)
34An internal impossibility due to how secondary addressees act means that they control that condition of the antecedent: if they defeat possibility, there is an impossibility; if they do not defeat it, then the condition can be met and the holder of the liberty can choose whether to act or not. With this scheme, secondary addressees become decisive for the liberty in itself.59 And when a SA set agent defeats the internal possibility of a liberty holder, she is not just cancelling the exercise; she is, furthermore, denying the deontic fact that the liberty holder is permitted to act. Ultimately, such defeat turns out to be exactly the same as removing that specific liberty holder from the set of PA agents.
(xli) with “ip ⇒ P {PA} s {SA}”, Pamina has the liberty to sing; when Monostatos knocks her unconscious, preventing her from singing, he is preventing her from exercising the liberty at hand; however, Monostatos is also preventing “ip ⇒ P {PA} s {SA}” from applying on such occasion.
(xlii) when Monostatos defeats Pamina’s internal possibility to sing and, consequently, prevents “ip ⇒ P {PA} s {SA}” to be applied, Monostatos affects much more than her singing; this becomes clear when seeing that his act amounts to changing the norm into “ip ⇒ P {PA unless Pamina} s {SA}”.
- 60 Which is a way to not accept the strange consequence Sartor (2006:106) seems to accept: “the very f (...)
- 61 From which it follows that the overall completeness of permissions depends on: (i) being bilateral, (...)
35An example such as this, shows how the Hohfeldian liberty ↔ no-right line of correlativity is incomplete: φ being permitted is not a sufficient condition for the liberty to be applied (for a token of φ to be the case). And it is incomplete because another necessary condition is required: restricting the secondary addressees to not defeat the internal possibility to act.60 It is only with this imposition that the normative authority is not enacting a “self-defeasible norm”: a norm that can be defeated by an agent belonging to the SA set (and without any conflict of norms). The “deontic completeness” of the permission depends, thenceforth, on taking in the duty not to defeat.61
(xliii) by defeating Pamina’s internal possibility to sing, Monostatos prevents “ip ⇒ P {PA} s {SA}” from being applied; however, by changing that norm into “ip ⇒ P {PA unless Pamina} s {SA}”, Monostatos shows the norm at hand as “self-defeasible”: it can be defeated by an agent therein foreseen.
(xliv) thus, the completeness of “ip ⇒ P {PA} s {SA}” depends on a duty imposed on SA set agents to not defeat the internal possibility of PA set agents to act; this duty is, then, a necessary condition to such completeness: without it, applying a permission depends on the will of any SA set agent.
- 62 On Hume’s guillotine, Woleński 2008: 21, Black 1969:101.
- 63 On the no-right as a space of weak permission, Brown 2005: 344, Lindahl 2006: 335.
36An example such as the one above also shows that the Hohfeldian liberty ↔ no-right line of correlativity amounts to a violation of Hume’s guillotine: law is effectively changeable (and without power) whenever any member of the SA set wants that to be the case.62 Any SA set agent is free (apparently under a weak permission) to remove any agent from the PA set, modifying the one originally formulated by the normative authority.63 The same cannot be said, however, when the liberty correlates with a duty not to defeat: with this correlation, law is not changed by a SA set agent; it is violated. So, when a permission is complete, a SA set agent preventing a PA set agent from exercising her liberty is simply breaching a duty.
(xlv) by changing the norm into “ip ⇒ P {PA unless Pamina} s {SA}” (or creating the same effect), Monostatos (an agent without power) also shows that the Hohfeldian “no-right” is incompatible with Hume’s guillotine: a mere fact (knocking Pamina unconscious) equals changing the law.
(xlvi) such assessment ceases to be valid if “O not to defeat” (addressed to SA set agents) is associated to “ip ⇒ P {PA} s {SA}”; with this duty, Monostatos does not change “ip ⇒ P {PA} s {SA}” when he knocks Pamina unconscious; he is simply violating the duty not to defeat.
- 64 And “almost deontically irrelevant” since a positive permission will always contradict a prohibitio (...)
37All these considerations lead to what can be called “the permissions fork”. That is: (i) either it is assumed that normative authorities enact complete permissions (deontic completeness) and the liberty conferred to PA set agents correlates with a duty not to defeat (held by SA set agents); or (ii), contrarywise, and for the reason of being almost deontically irrelevant, it is assumed that permissions are not “regulative norms” at all.64 This is so since: (i) any SA set agent is free to block or compel the exercise of a liberty (not breaching the law while doing so); and (ii) any SA set agent may effectively change any permission enacted by a normative authority (and without power to carry out such change).
(xlvii) thus, “ip ⇒ P {PA} s {SA}” is either a complete permission (and it is once “O not to defeat” is imposed upon SA set agents) or it is irrelevant regarding the regulation of behaviour: being within the system or not amounts to exactly the same regarding the agents the norm itself foresees.
- 65 A proposition merely working at the conventional level of norm individuation and not presupposing a (...)
- 66 By “co-action”, it is meant the interdependent interaction without which the result of the main act (...)
- 67 On the necessity-sufficiency duality, Sanford 1989: 179, von Wright 1951: 66.
38Therefore, if normative authorities enact complete permissions (actually, mere “regulative permissions”), then it follows that the liberty conferred to PA set agents necessarily correlates with a duty not to defeat the internal possibility (held by SA set agents).65 So, when the internal possibility condition and the counterparty’s co-action are taken into account, it becomes clear that, regarding other agents, tokens of φ are only exercisable if defeating is understood as forbidden.66 Given the duality of necessity and sufficiency, and being such duty a necessary condition to the deontic completeness of permissions, it follows that a liberty to φ is a sufficient condition for the SA set agents to bear a duty not to defeat.67
(xlviii) if “O not to defeat” is a necessary condition to “ip ⇒ P {PA} s {SA}” to be applied, then it follows that “ip ⇒ P {PA} s {SA}” is a sufficient condition to “O not to defeat”; therefore, “ip ⇒ P {PA} s {SA}” implies that SA set agents are under a duty not to defeat the internal possibility of singing.
39A scheme such as this has the consequence that a permissive norm, as the basis for a liberty, also has to take into account the deontic modalization governing the behaviour of SA set agents. Therefore, besides the original sequence of an antecedent followed by a deontic operator and a consequence, a norm that confers a permission of φ also entails a sort of “second norm” expressing the (additional) necessary deontic condition for the completeness of the liberty at hand. It is important to note, however, that such complement depends exactly on the same condition: preventing the exercise of a liberty also depends on its own internal possibility and, for this reason, it becomes irrelevant whenever it is impossible.
(xlix) the N in “everyone is allowed to sing” can be formalized, associating the implied “O not to defeat”, as “(ip ⇒ P {PA} s) → (ip ⇒ O {SA} ~dip)”, where “dip” stands for “defeat the internal possibility” of exercising the main action (that is, regarding the action of PA set agents).
(l) as co-action, not to defeat also has its own “internal possibility”; when Monostatos is hidden inside the forest, he cannot knock Pamina unconscious (she is elsewhere); therefore, not to defeat is a necessary condition to bring about the result of action only whenever it is possible.
- 68 The next example is a variation of the famous Guibourg’s “Toro Sentado” example (Guibourg, Echave, (...)
40As follows from all these considerations, the position correlated with a liberty is closely connected with how permissive norms are understood. And, once it is assumed that permissions also entail a correlativity line as any other norm, then the facts that the Hohfeldian “no-right” dissolves the difference between strong and weak permissions and presupposes pointless permissive norms must also be acknowledged. Hence, along with the solid reasons that lead to seeing permissions as “action complete”, there also seem to be compelling reasons to do the same regarding their “deontic completeness”: recognizing a duty not to defeat is the only way to understand permissions as norms effectively regulating behaviour.68
(li) one can conceive a legal system where (time1) everything is weakly permitted except singing (forbidden); however, when the normative authority enacts the N expressed by “everyone is allowed to sing” (time2), the forbidden action becomes strongly permitted.
(lii) since the Three Ladies do not want Papageno to sing (in order to punish him for his lies), they are free in time1 to put a padlock on his lips; the problem is that under the liberty ↔ no-right correlativity they are still free to do it in time2; so, the permission enacted is pointless.
(liii) and it is pointless because: (i) a possible revocation of the prohibition (creating a weak permission) would be exactly the same as enacting the strong permission; and (ii) the system shows itself pragmatically identical in time1 and in time2 (it is legitimate to use the padlock in both).
- 69 Unveiling the topic (but solving it outside atomicity), Lindahl 1977:126. Also, Sergot 2013: 400.
41Therefore, a permissive norm creates a line of correlativity connecting a “liberty” to a “duty not to defeat the internal possibility”. Within this correlativity, secondary addresses are under such duty, which means that their atomic position also has: (i) a specific content, and (ii) a specific deontic modalization.69 Regarding the latter, a permission connected to a set of agents puts the agents of the correlative set under the contradictory deontic modality: while members of the PA set are permitted to do φ (and ~φ), members of the SA set are under an obligation not to defeat the internal possibility of φ-ing (and ~φ-ing and even choosing between φ and ~φ).
(liv) the answer to the legal question, “how ought Monostatos behave regarding Pamina’s act of singing” is given by the permission itself; from “(ip ⇒ P {PA} s) → (ip ⇒ O {SA} ~dip)” it follows that Monostatos is under an obligation not to defeat her internal possibility to do so; evidently, all SA set agents are under such obligation (the contradictory of the permission foreseen to PA set agents).
- 70 Defeating the internal possibility comprises both actions and forbearances as it includes them rega (...)
42As regards the former (the content of the duty not to defeat), it is worth noting that it is inherently connected with the internal possibility condition (understood as above), from which it follows that it is strictly demarcated by the acts that somehow block or compel the liberty holder regarding the exercise of her position (and just that).70 So, a duty not to defeat, being related to a main action φ only assigned to the first pole of the correlativity line, comprises a variable content (φ´) formed by whatever can cease the mental and physical possibilities of φ-ing and ~φ-ing (and choosing). Understandably, whatever might go beyond such scope has to be seen as already outside the content of this (adaptative) duty.
(lv) “defeating the internal possibility” is merely to defeat the internal possibility condition, which is the same to say that Pamina’s mental and physical possibilities to sing have to be kept intact; anything beyond this scope is not within the object of the duty.
(lvi) thus, if Pamina’s singing becomes unnoticed because Monostatos is simultaneously singing in a particularly brilliant way, he is not breaching his duty not to defeat her internal possibility; he is just exercising his own permission to sing.
- 71 Spena (although regarding the duty of non-interference (2012: 170).
- 72 Such as running faster (Simmonds 1998: 157) or speaking louder (Kramer 1998: 11). With similar exam (...)
43Accordingly, it is totally outside the content of the duty not to defeat the understanding by which this legal position involves the acts suitable to undermine the purposes intended by the liberty holder: conceivable acts that may prevent the success aimed by the holder with the exercise of her liberty have nothing to do with the internal possibility condition.71 A duty not to defeat is not about making the exercise of the liberty pointless, but making it impossible: it is only in this way that the duty bearer blocks the internal possibility. Therefore, the usual criticism based on examples that merely illustrate possible ways of making the acts of the liberty holder unsuccessful seems totally off target.72
(lvii) when Papagena and Papageno both run to pick up the Glockenspiel that fell on the floor, Papagena is not defeating Papageno’s internal possibility to run if she runs faster and picks up the Glockenspiel first (under “freedom of movement”); she would be defeating his internal possibility if she grabbed him to a point that he could not effectively run.
44Bearing in mind the content of the duty not to defeat, as was roughly described above, it is important to know whether there is any difference between such duty and the duty not to (correlated with a claim-right). An answer to this question must be clearly affirmative: any confusion between them seems mistaken and no overlapping can be recognized (except, of course, for the mere fact that they are both duties). The first reason is that, within the norm’s morphology (the position addressees have), a duty not to defeat is held by SA set agents while the holders of a “normal” duty not to are PA set agents (by definition). Rigorously, a duty not to defeat imposed on primary addressees just does not exist.
(lviii) “everyone is allowed to sing” foresees a duty not to defeat the internal possibility to SA set agents; “it is forbidden to lie” foresees a duty not to assigned to PA set agents; it is never the case that a duty not to defeat is imposed on PA set agents or that a duty not to is imposed on SA set agents.
- 73 The example above is presented as a possible expression of the duty not to defeat imposed on PA set (...)
- 74 On mismatches between norm sentences and norms, Grabowski 2009: 130, Schauer 1991: 23.
45It could be said that nothing prevents a normative authority from formulating a norm in a way that the duty not to defeat the internal possibility is assigned to PA set agents; for instance, “it is forbidden to interfere in the freedom to φ“, an utterance that, moreover, would include a consequence with unspecified actions: to not interfere.73 However, such an argument seems to confuse the sentence (not written in the conditional order of a norm) and the norm itself: such wording does not prevent the facts that a liberty is being given (a liberty as any other) and that the duty is totally related to a token of φ.74 Irrespective of how it is written, the norm expressed imposes a duty not to defeat on SA set agents.
(lix) in “it is forbidden to interfere in the freedom to φ”, a duty not to defeat the internal possibility is apparently given to PA set agents; however, the wording of the NS does not disturb the conditionality of the N, which effectively is “(ip ⇒ P {PA} φ) → (ip ⇒ O {SA} ~φ´)”; materially, to not interfere in φ is also a content-adaptative duty dependent on what is (or will be) the PA set agent token of φ.
- 75 On the adaptative nature of some interaction, Tuomela 2007: 152. Also, Miller 2004: 5.
46As follows from the first reason, a second and decisive reason arises from the difference regarding the content of the duty. Accordingly, while a duty not to regards an action somehow foreseen in a consequence, the content of a duty not to defeat the internal possibility is only apprehensible upon the act to be carried out by the liberty holder. It follows, then, that the duty not to defeat has an adaptative content, meaning that its scope is dependent on (and conditioned by) the possible individual acts to be taken by the PA set agent.75 In other words, the content of a duty not to defeat is “content-adaptative” and, for this reason, is shaped by the counterparty’s φ-ing or ~φ-ing (which is never the case with a duty not to).
(lx) in “it is forbidden to make music”, a duty not to is imposed on PA set agents (norm-shaped duty); its content is to forbear the exercise of the action foreseen (here, unspecified actions); it is not conditioned, though, by the possible course of action to be taken by SA set agents; thus, Papageno omitting to play the Glockenspiel or singing happens irrespective of how third parties act.
(lxi) in “it is allowed to make music”, a duty not to defeat is imposed on SA set agents (counterparties-shaped duty); its content regards the internal possibility condition, being adaptative to the PA set agent act; thus, the Three Ladies defeating Papageno’s internal possibility depends on his exercise of the liberty: if he sings, putting a padlock on his lips (not successful if he plays the Glockenspiel).
- 76 On naked (or unprotected) liberties, Bentham 1838: 218, Alexy 2002: 144.
47Accepting that a liberty correlates with a duty not to defeat the internal possibility, merely on the basis of a single norm, means that there is no such thing as “naked” (or “unprotected”) liberties.76 As soon as a norm allows action φ, it is immediately the case that the liberty conferred is already protected by a duty not to defeat, preventing the exercise of the liberty to be legitimately disturbed in its internal possibility. It is surely a weak protection, since it merely covers a reduced (although decisive) spectrum of the set of possible accomplishments offered by the position. Nonetheless, beyond that scope, no protection is given by the duty not to defeat (solely from the permission at hand).
(lxii) “(ip ⇒ P {PA} s) → (ip ⇒ O {SA} ~dip)” stands for the N expressed in “everyone is allowed to sing”; as follows from its content, Papageno has a liberty to sing and all the SA set agents have the duty not to defeat his internal possibility to do so (to not put a padlock on his lips, for instance); evidently, Papageno is not protected (only with that norm) against Papagena not listening to him or against Tamino singing so loud that Papageno actually fails to seduce Papagena with his marvellous voice.
- 77 Manero 2018: 45, Ross 1958: 166.
48Nothing prevents a normative authority from increasing the protection a liberty already grants by itself and from introducing into the set other norms forbidding specific (and non-adaptative) ways of interference: that is, enacting prohibitions to act against any of the variables of the action permitted.77 With such third norms, the degree of protection given to a liberty increases, providing a higher level of protection to the liberty at hand. So, instead of distinguishing between naked and vested liberties (or unprotected and protected), it seems that the proper distinction is between liberties with weak and strong protections: in the latter, other norms reinforce the protection already offered by the duty not to defeat.
(lxiii) by conferring a duty not to defeat, “(ip ⇒ P {PA} s) → (ip ⇒ O {SA} ~dip)” immediately gives some protection to the liberty: it is a weakly protected liberty; when the normative authority enacts “absolute silence is mandatory when someone sings”, Papageno’s liberty to sing becomes strongly protected: besides the weak protection (as seen), he now also has the protection given by this latter norm (it becomes a strongly protected liberty [Tamino cannot sing when Papageno is singing]).
- 78 Hart 1982: 171. On the other hand, this also shows why Hart’s protective perimeter is irrelevant wi (...)
49Since other legal positions are given by those norms reinforcing the protection the liberty already has, it follows that a strongly protected liberty is actually an aggregate of atomistic legal positions, specifically the liberty in itself and all the claim-rights conferred by each one of the prohibitions. If X has the liberty to φ and Y is forbidden to φ´ (an action against the exercise of that liberty), then the strongly protected liberty X has is the sum of her liberty with the claim-right towards Y not to do φ´. And this seems to be the proper scheme to explain Hart’s protective perimeter: its content is just the aggregate of claim-rights that legal systems confer when actions that might trouble liberties become forbidden.78
(lxiv) as seen, “everyone is allowed to sing” with “absolute silence is mandatory when someone sings” makes that liberty strongly protected; however, it is an aggregate of atomistic positions: the liberty to sing with the claim right to “absolute silence”.
(lxv) Papageno’s protective perimeter is formed, regarding his liberty to sing, by a compound of claim-rights coming from, and for instance, “absolute silence is mandatory when someone sings”, “it is forbidden to cut one’s vocal cords”, or “it is forbidden to kill”, and so forth.
- 79 Besides the previous references, Bulygin 2010: 285, Mendonca 2007: 54. On the universal law of libe (...)
50A unique exception to such a scheme is found in weak permissions: those that pragmatically cover an action not explicitly allowed (not regulated). Without a norm covering an action, it seems that such action may be carried out (operating the absence of law as a pragmatic permission) even though no intrinsic protection exists for such exercise.79 A main reason sustains this “exception” to the correlativity between liberties and duties not to defeat: it would be rather anomalous (and here rather incoherent) to accept that one may have a duty not stated by any norm of the set. Thus, if no duty can follow from the absence of a norm, then these “vacuum liberties” do not even have a weak protection.
(lxvi) within a legal system where no norm allows wearing bird-feather clothes (and no general permission of action exists, of course), Papagena’s “liberty” to dress as she does is a “vacuum liberty”: she may dress that way only because the absence of a norm stands for pragmatic permission.
(lxvii) Papagena’s “liberty” to wear bird-feather clothes, under the conditions now identified, does not correlate with a duty not to defeat: “vacuum liberties” are “empty” in the sense that they are not based on norms that could support the ascription of duties to third parties.
- 80 O’Reilly 1995: 285, Sreenivasan 2010: 466.
- 81 Borrowing the famous Benthamian expression (Bentham 1970: 57).
51When a norm has an imposition or a prohibition, a duty is normatively conferred to agents of the PA set; if it is an imposition, it is duty to φ (duty to), but if it is a prohibition, it is a duty to ~φ (duty not to).80 Independently of the generic action foreseen in the consequence, the duty is to be exercised through the individual act performed by an agent of the PA set: it is her conduct (an act in the strict sense or an omission) that leads to bringing about a certain result (somehow, the “service” to be provided to the holders of the correlated position [“claim-right” holders]).81 So, impositions and prohibitions give rise to the correlativity line duty ↔ claim-right (the second one in first order positions).
(lxviii) “it is mandatory to pay 500 florins (£500) per month to personal employees” expresses a N imposing the duty of employers to pay £500 per month and the claim-right of employees to receive that amount of money; this N sustains a duty ↔ claim right correlativity line; so, as an agent of the PA set, Sarastro has the duty to pay £500 per month to Monostatos (his personal employee), who is, as a SA set agent, the (a) claim-right holder.
(lxix) “it is forbidden to enter into Sarastro’s Temple during a solemn assembly of the Brotherhood” expresses a N imposing on everyone the duty not to enter into the Temple during those assemblies and conferring the Brotherhood the claim-right to others to stay out; this N sustains a duty ↔ claim right correlativity line; so, as an agent of the PA set, Papagena has the duty to stay out of the Temple (in the condition mentioned), being the Brotherhood, as the SA set agent, the claim-right holder.
52In the structure of imposition or prohibition norms, there is also an antecedent; and, independently of other conditions possibly expressed, there is also an internal possibility condition. As happens with permissive norms, this is a necessary condition for the norm to be applied and, consequently, for the duty to be the case.82 In the same way as with permissions (as discussed above), the individual act that stands for the compliance of the duty cannot take place (no matter if an imposition or a prohibition) if the duty bearer faces an internal impossibility. It can be said, therefore, that the possibility of a token of the main action is also a necessary condition for the exercise of the duty.
(lxx) the N in “it is mandatory to pay 500 florins (£500) per month to personal employees” can be initially formalized as “ip ⇒ O {PA} £ 500/month {SA}”; naturally, if Sarastro has his hands tied when he is going to pay Monostatos, he cannot give the money to his personal employee.
(lxxi) the N in “it is forbidden to enter into Sarastro´s Temple (est) during a solemn assembly (sa) of the Brotherhood” can be initially formalized as “ip ∧ sa ⇒ F {PA} est {SA}”; naturally, if Papagena is knocked unconscious and taken into the Temple, she did not enter: her body has been put there.
- 83 Contributory condition (in causation) as a condition within a set of necessary conditions that are (...)
53There is, however, a significant difference in the role played by the internal possibility condition in permissions, on the one hand, and in impositions and prohibitions, on the other. The point is the following: while in permissions such possibility is a necessary condition to bring about the result of action, in impositions and prohibitions it is just a contributory condition; that is, the internal possibility is only a necessary condition to act, which is in itself another necessary condition to bring about the result at hand.83 Putting differently: in norms that are impositions and prohibitions, the antecedent’s internal possibility condition is merely the first step in a chain of necessary conditions.
(lxxii) in “(ip ⇒ P {PA} s) → (ip ⇒ O {SA} ~dip)”, not to defeat the internal possibility (not putting a padlock on Papageno’s lips) is a necessary condition to bring about the result of action: if Papageno can open his lips, he can chose to sing and effectively sing (or even refraining from singing).
(lxxiii) in “ip ⇒ O {PA} £500/month {SA}”, the internal possibility (Sarastro not having his hands tied) is only, however, a necessary condition to another one (in order to bring about the result of action): besides his hands being free, Sarastro only pays Monostatos if he gives him the money.
(lxxiv) in “ip ∧ sa ⇒ F {PA} est {SA}”, the internal possibility (Papagena not being knocked unconscious) is only, however, a necessary condition to another one (in order to bring about the result of action): besides being conscious, Papagena only omits entrance if she does not enter.
- 84 On the direction of causation and its consequences, Sanford 1984: 57, Mackie 1965: 261.
54As a mere contributory condition, the internal possibility loses its relevancy in impositions and prohibitions: given the direction of causation and its asymmetry, the second necessary condition (to act or omit) succeeds the first one (internal possibility), which means that the first condition of the chain is consumed by the exercise of the duty.84 As is clear in the following examples, any exercise of the duty imposed or prohibited necessarily presupposes the presence of the internal possibility condition. But such causal direction is not inconsequential: it implies to this correlativity line that SA set agents deal specifically with the most proximate condition (in this correlativity line, the individual act under the duty).
(lxxv) in “ip ⇒ O {PA} £500/month {SA}”, the result of action is “transferring the money to the SA set agent”; being free to pay is prior to “transferring the money to the SA set agent” (the latter presupposes the former, but not vice-versa); thus, correlativity here connects SA set agents with the most proximate condition: their role in this correlativity line (co-action) directly faces the action foreseen.
(lxxvi) in “ip ∧ sa ⇒ F {PA} est {SA}”, the result of action is “staying off the property of the SA set agent”; being conscious is prior to “staying off the property of the SA set agent” (the latter presupposes the former, but not vice-versa); thus, correlativity here connects SA set agents with the most proximate condition: their role in this correlativity line (co-action) directly faces the action foreseen.
(lxxvii) in “(ip ⇒ P {PA} s) → (ip ⇒ O {SA} ~dip)”, the result of action is to (choose to) sing; having a padlock on the lips was the obstacle to that result (no other condition is necessary); thus, correlativity here connects SA agents with that condition: the role played by SA set agents in this correlativity line (co-action) directly faces the internal possibility condition (not the main action foreseen).
- 85 On this interdependency (common effect requirement), Schmid 2009: 229, Pacherie 2011: 174.
- 86 On cooperative agency (i-intentions), Tuomela 2000: 4, Miller 2004: 5. On passive action, Mele 1997 (...)
55An analysis of action within the duty ↔ claim-right correlativity line shows that the result of action is also dependent on the specific co-action to be carried out by the holder of the claim-right: irrespective of the type of action foreseen, the result at hand cannot be brought about without the SA set agent interdependent agency.85 An observation such as this points out that the SA set agent also plays a sort of “constitutive role” in this correlativity line (totally ignored in Hohfeld’s scheme): actually, it is a variable contribution to the result that varies from effective cooperation (in which the agent acts by way of response) to mere passive action (in which the agents just accepts some external course of action)86.
(lxxviii) under “ip ⇒ O {PA} £500/month {SA}”, Sarastro has to pay Monostatos £500 this month; for Monostatos to have the money, Monostatos probably has to meet his employer or, at least, if Sarastro goes to meet him, to put the money in his pocket (or under his mattress); if Sarastro pays by bank transfer, Monostatos has the passive action of not cancelling his bank account: he agrees with a state of affairs (have a bank account) in order to have another one (own £500).
(lxxix) under “ip ∧ sa ⇒ F {PA} est {SA}”, Papagena has to stay out of Sarastro’s Temple; co-action is necessary to bring about the result; if a member of the Brotherhood compels Papagena to enter into the Temple, she will definitely enter (she probably does not if the member refrains from doing it); it is to be considered as well that any member of the Brotherhood might invite her to enter: in such case, and irrespective of anything else, a SA set agent is evidently contributing to prevent the result of action.
- 87 Impossibility to co-act might arise from the most different causes (e.g., the SA set agent is impri (...)
56As can been seen in these examples, SA set agents must co-act in order to bring about the result of the act carried out by the PA set agent. However, such co-action also depends on its own internal possibility: if the SA set agent cannot co-act, it follows that her contribution to the result is absent.87 When this is the case, one of two consequences follows: either (i) the duty held by the PA set agent is not (fully) complied with, although as a result of the SA set agent’s impossibility; or (ii) the result is still achieved despite the impossibility (omission works). Be it as it may, whenever co-action is possible, the SA set agent contribution is decisive. So, and again, it can be said that co-action is necessary whenever it is possible.
(lxxx) under “ip ⇒ O {PA} £ 500/month {SA}”, Sarastro has to pay Monostatos £ 500 this month; if Sarastro does not meet Monostatos to pay him, it becomes irrelevant what Monostatos does (and he does not receive the money); but if Sarastro pays by bank transfer, impossibility to co-act does not block the result (yet, if there is possibility, Monostatos can always cancel his bank account).
(lxxxi) under “ip ∧ sa ⇒ F {PA} est {SA}”, Papagena has to stay off Sarastro’s Temple; if a member of the Brotherhood cannot compel Papagena to enter into the Temple, she either enters or not only depending on her judgment; however, if a member of the Brotherhood has the possibility to interfere in the compliance of the prohibition, then refraining from doing it is necessary to the result.
- 88 Unpredictability about these co-acts decreases in proportion to what is normatively foreseen (the m (...)
- 89 By “managing the result of action” it is meant the adaptative co-acts carried out by the claim-righ (...)
57As just mentioned, whenever it is possible, SA set agents have to co-act to bring about the result of the (main) action assigned to PA set agents. And in a close parallel with the duty not to defeat (in permissions), the content of their position is also adaptative: it is not normatively foreseen, and it also depends on how the PA set agent exercises her duty.88 Accordingly, the position held by SA set agents in this correlativity line is only definable by the possible acts that coordinate with the act of the duty bearer when she is complying with her duty. In one way or another, a SA set agent will act or omit as a way to “manage the result of action” that is to be brought about with (and not only by) the duty bearer.89
(lxxxii) “ip ⇒ O {PA} £500/month {SA}” and “ip ∧ sa ⇒ F {PA} est {SA}” both confer a duty ↔ claim-right correlativity line; to bring about the result of action (to pay and to stay off), SA agents have to co-act in a variation coming from passive action to effective cooperation.
(lxxxiii) with “ip ⇒ O {PA} £500/month {SA}”, the claim-right holder (Monostatos) “manages the result of action” by effectively receiving or not receiving the money; as seen, Monostatos can accept the money and put it in his pocket, refuse to accept it, cancel his bank account, and so on.
(lxxxiv) with “ip ∧ sa ⇒ F {PA} est {SA}”, the claim-right holder (the Brotherhood) “manages the result of action” by letting Papagena stay out; as seen, any member of the Brotherhood can compel Papagena to enter (or not), might invite her, or even agree with her entrance.
- 90 It is relevant to note that omissive co-action is not absence. Since there is always an internal op (...)
58Given that the content of a claim-right is to “manage the result of action” (a structural feature of the whole correlativity line), it seems that the SA set agent is free regarding the possible co-acts that can consubstantiate her contribution to bring about the result of action (either acts or forbearances).90 And, rigorously, since the SA set agent is under no duty whatsoever (neither enacted, nor implied), it follows that such agent may either co-act to bring about the result of action or may also refrain from doing it. Thus, a duty assigned to a PA set agent correlates with a permission held by the claim-right holder, showing that this correlativity line also presents two contradictory deontic modalizations.
(lxxxv) considering the object and the deontic modalization of the claim-right position, the N expressed by “it is mandatory to pay 500 florins (£500) per month to personal employees” can be formalized as: “(ip ⇒ O {PA} £500/month) → (P {SA} mra)”, where “mra” stands for “manage the result of action”; this means, consequently, that SA agents are prima facie allowed “to accept” and “not to accept” the result of the action to be carried out by PA agents.
(lxxxvi) considering the object and the deontic modalization of the claim-right position, the N expressed by “it is forbidden to enter the Sarastro’s Temple during a solemn assembly of the Brotherhood” can be formalized as: “(ip ∧ sa ⇒ F {PA} est) → (P {SA} mra)”, where “mra” stands for to “manage the result of action”; this means, consequently, that SA agents are prima facie allowed “to accept” and “not to accept” the result of the action to be carried out by PA agents.
- 91 On the difference between waiving and nearby concepts, Wellman 1997: 45. Strictly connecting waivin (...)
59Within the duty ↔ claim-right correlativity line, the term “waiving” has been used with some ambiguity. It seems to be used as meaning either: (i) to authorize the duty bearer not to act (weak-waiving); or (ii) to extinguish the legal position (strong-waiving).91 Such ambiguity, along with preventing accuracy and precision, also prevents the identification of a major difference: in fact, allowing not to act is something quite different from extinguishing the position. In the former, the claim-right holder agrees with the non-compliance of a token of the duty, but the position remains totally in force. In the latter, the legal position itself is cancelled, implying a proper and effective modification of the law (the existent positions).
(lxxxvii) under “(ip ∧ sa ⇒ F {PA} est) → (P {SA} mra)”, Sarastro is just excepting her restriction from entering the Temple if he occasionally invites her to enter: such authorization does not mean, naturally, that “(ip ∧ sa ⇒ F {PA} est) → (P {SA} mra)” is no longer in force and not applicable on other occasions.
(lxxxviii) under “(ip ∧ sa ⇒ F {PA} est) → (P {SA} mra)”, Sarastro is extinguishing Papagena’s position (and the position of other SA set agents) if he revokes “(ip ∧ sa ⇒ F {PA} est) → (P {SA} mra)”; in this case, Papagena (and the other SA set agents) are no longer under any duty to stay out of the Temple.
- 92 On removing norms from the set (and power), Mendonca 2000: 146, Ferrer 2000: 144.
60Accordingly, the tools required to realise each one of these “re-actions” towards the duty are different: while in weak-waiving the claim-right holder is just exercising her correlative permissive position (the deontic modalization governing the claim-right), in strong-waiving the claim right holder is extinguishing the legal position (and effectively changing the law), something she can only accomplish if she has the power to do so.92 Hence, the duty cannot be extinguished without such power (the law cannot be modified). However, even without it, the claim-right holder may still always weakly waive the PA set agent from her individual act of compliance (as seen, she is permitted to “manage the result of action”).
(lxxxix) under “(ip ∧ sa ⇒ F {PA} est) → (P {SA} mra)”, Sarastro is just weak-waiving Papagena from the duty to stay out of the Temple if he occasionally invites her to enter: when Sarastro waives Papagena from her duty, he is merely exercising his permission to manage the result of action.
(xc) under “(ip ∧ sa ⇒ F {PA} est) → (P {SA} mra)”, Sarastro is strong waiving Papagena’s position (and the position of other SA set agents) if he revokes “(ip ∧ sa ⇒ F {PA} est) → (P {SA} mra)”; however, revoking the N at hand presupposes that Sarastro has the power to do so.
- 93 For instance, Mendonca 2018: 51, Guastini 1993: 72.
61This difference is crucial for understanding the waiving of constitutional claim-rights (or even statutory or administrative rights whenever conferred by general norms). Understandably, a SA set agent of a duty given by a constitutional norm does not have the power to change the constitution: this competence is usually assigned to parliaments and under very specific and formal procedures.93 Yet, when the SA set agent waives a fundamental claim-right, she is not extinguishing the legal position in itself; she is merely exercising the permission she holds as a claim-right holder. So, it almost goes without saying that the duty is not extinguished and that it remains exigible in other space and time conditions.
(xci) “access (a) to third parties correspondence (c) is forbidden” is a NS in the constitution expressing the N “(ip ⇒ F {PA} ac) → (P {SA} mra)”; when Monostatos and the Queen of the Night allow the Three Ladies to read the letter he wrote to her explaining why he wants now to be at her service, they are not extinguishing the constitutional claim-right to secrecy of correspondence.
(xcii) if “(ip ⇒ F {PA} ac) → (P {SA} mra)” is a constitutional norm, it is evident that Monostatos and the Queen of the Night do not have the power to eliminate such a norm from the legal system (and to extinguish this constitutional claim-right); however, if this does not prevent them from weak-waiving, it also does not mean that everyone ceases to be under the duty constitutionally foreseen.
- 94 Since legal systems usually have a general competence norm to “private agents” (Lindahl 2017: 161, (...)
62A distinction between weak and strong waiving becomes less clear when the duty is only exercisable by one individual act: that is, when allowing the duty bearer to not exercise a token of the duty simultaneously means that the duty ceases to exist. However, such overlapping between weak and strong waiving does not deny that power is indispensable to changing the law: even if the claim-right holder is free to weak-waive, she cannot extinguish the duty without having the proper power. But this is not particularly complex: an overlap between weak and strong waiving necessarily means the uniqueness of the legal position at hand and this only happens in private law (where power is usually aggregated).94
(xciii) when the Three Ladies agree with Papageno that they will give him the Glockenspiel, he is subsequently permitted to not accept the instrument; by doing this, Papageno is weak-waiving the duty the Three Ladies have under such agreement; however, while waiving, he is also extinguishing the Three Ladies’ duty as well; anyway, Papageno may waive the duty (and actually extinguish it) only because he has the power to enter into contracts and to cease them (as usually conferred in private law).
(xciv) if there was a N imposing that a Glockenspiel be given to people wearing bird-feather clothes, a possible weak-waive would not extinguish the legal position: the claim-right to Glockenspiels would remain in the system; if a public body decided to give Papageno a Glockenspiel, his possible weak-waive would not extinguish the legal position: such donation presupposes a previous (general) norm foreseeing such position (rule of law) and he would be just waiving a token of that duty.
- 95 It seems that theories of rights do not have a systematic enumeration of the conditions by which a (...)
63A duty with only one token without a norm conferring power is not the sole normative situation where the claim-right holder is limited regarding her permission to weak-waive: two more normative situations must be taken into account.95 The second one comes from the normative scenario where the result of the main action is not divisible by each SA set agent. When the result of the action has this conjunctive effect in SA set agents, given that it cannot be individually experienced by them, it follows that only a collective weak-waiving (by the whole set) would be admissible as an exercise of the claim-right holder’s position. For this reason, individual weak-waiving by each claim-right holder is inadmissible.
(xcv) with “Sarastro has the duty to promote a healthy environment (he)”, the legal system has a N such as “(ip ⇒ O {Sarastro} he) → (P {SA} mra)”; this N imposes on Sarastro the adoption of various acts suitable to achieve that result; however, none is individually experienced by each agent of the SA set.
(xcvi) given that the unspecified actions foreseen in “(ip ⇒ O {Sarastro} he) → (P {SA} mra)” have this conjunctive effect, only a collective waiving from all the SA set agents would be admissible; it follows, then, that each of the SA set agents may not individually weak-waive Sarastro’s duty.
- 96 Which is not so unusual (e.g., the minimum wage case). Wenar 2013: 218, Steiner 2013: 241.
- 97 It is difficult to understand how a prohibition of waiving could lead to a definitive unwaivability (...)
64A third normative situation where the claim-right holder is limited to weak-waiving is the one arising from the normative scenario where her permission is in conflict with a prohibition to waive the exact same duty: as a matter of fact, nothing prevents a normative authority from enacting a norm by which SA set agents are forbidden to waive.96 If a norm such as this is enacted, it follows that a conflict arises between the permission (to weak-waive) and the prohibition (to weak-waive): they have exactly the same object. Accordingly, a balancing has to be carried out and the all norms considered position of SA agents depends on the prevailing norm: if the prohibition prevails, waiving is inadmissible.97
(xcvii) under “(ip ∧ sa ⇒ F {PA} est) → (P {Sarastro} mra)”, Papagena is forbidden to enter into Sarastro’s Temple whenever a solemn assembly is going on; however, Sarastro may weak-waive her from her duty; when the normative authority enacts “Sarastro is forbidden to waive (w) entrance into the Temple”, a N such as “(ip ⇒ F {Sarastro} w) → (P {SA} mra)” enters into force, conflicting with the first one: Sarastro is simultaneously under a permission to weak-waive and a duty not to weak-waive.
(xcviii) since these norms are deontically incompatible and no norm of conflicts is applicable, only a balancing can provide a solution: if the prohibition prevails, the duty to not enter is unwaivable; one could argue, though, that the second norms is useless: if a SA set agent may waive the prohibition to waive, then it would follow that Sarastro may waive again; however, that seems to be wrong: the second duty is either only collectively waivable or waivable by the State.
- 98 Guastini 2016: 108, Frändberg 2018: 44.
- 99 Ruiter 1998: 474. For competence norms as norms of conduct, despite posterior changes, Alchourrón (...)
65A competence norm is a norm that foresees in its consequence the (generic) deontic act of “producing deontic consequences”. It is an action as any other, as explained above, only with the specificity of being an action that directly modifies the law by introducing or removing norms from the set (thus changing previous legal positions).98 A competence norm is, therefore, a very specific norm of conduct; besides its regulative component (on the deontic action), it comprises a constitutive one as well: precisely, the bestowing of the possibility to produce deontic consequences (that is, conferring a power to a PA set agent). Without this constitutivity, no agent can act at the ought to be level.99
- 100 On constitutivity, Searle 1969: 34. In the legal field, Peczenik 2008: 226, Ross 1968: 130.
- 101 This “possibility” has nothing to do with the internal possibility condition, which is also present (...)
66As a consequence of its constitutivity, a norm conferring a power creates an action that did not exist before its enactment: to produce deontic consequences is a generic action (allocated to a person or a body, public or private) beyond human biological capacity.100 Even if one can express a command, it does not work as such if that utterance is not based on competence (particularly evident when we are dealing with legal systems). A competence norm, accordingly, and besides everything else, also performs the task of conferring possibility to an action that would otherwise be impossible: with such a norm, it becomes possible for someone, and concerning some topic, to act inside the law.101
(xcix) also dependent on an internal possibility condition, a norm of competence confers possibility to the generic action of “producing deontic consequences” (dc); more specifically, such norm does so with regard to some subject matter, be it “everything” or just “padlocks”.
(c) the NS “Sarastro is competent with padlocks” expresses the norm of competence (NC) “ip ∧ p ⇒ ◊ {Sarastro} dc {SA}”; this NC makes it possible for Sarastro to exercise the generic deontic action of “producing deontic consequences” on the topic “padlocks”.
- 102 von Wright 1963: 189. On those worlds apart, Johns 2014: 371, von Wright 19511: 3.
67It seems to make no sense, however, to think that a norm can create a new type of action without allowing such action to be carried out (prima facie): although possibility and permission have nothing to do with each other (worlds apart), it would be absurd to not recognize that at least some tokens of such action were effectively permitted.102 Some justification can sustain this merely intuitive approach. When considering that nothing supports the assumption that producing deontic consequences is a forbidden or a mandatory generic action (given the usual utterances of normative authorities), it follows that, under such absence, the action at hand must be seen, ultimately, as permitted in the weak sense.
(ci) the usual linguistic expression of a competence norm is something as “Sarastro is competent with padlocks” or “the power to regulate padlocks is assigned to Sarastro”; no reasons whatsoever sustain that the generic action is here being forbidden or imposed.
(cii) however, that such action is not forbidden or imposed (and that such sentences refers to an action), it follows that producing deontic consequences (i.e., regulating behaviour) is a generic action that is at least weakly permitted.
- 103 It goes without saying that conceiving norms of competence (as conceived by Bulygin 1991: 497 and R (...)
- 104 It follows that a power conferring norm is also a strong permission regarding the (constituted) gen (...)
68Understanding competence norms as creating the weakly permitted generic action of producing deontic consequences does not, however, match with the fact that those norms are effectively enacted, becoming members of the set. For this reason, such understanding implies either that a competence norm is mute regarding its deontic modalization (a peculiar format for a weak permission) or that we have to reconsider what we mean by strong permissions.103 However, if the second solution is pointless, the first is no better: if a normative authority enacts a norm with an action that it is weakly permitted, what it is likely really happening is that such authority is just saying that such action is (after all) permitted.104
(ciii) when the normative authority enacts the NS “Sarastro is competent with padlocks”, a power on a certain topic is assigned to Sarastro; and, if that authority has enacted a norm that turns out to be permissive, that norm is actually a strong permission.
(civ) a competence norm, therefore, is a dual composition of the possibility to act and its own permission; following the same notation used here to formalize norms, Sarastro’s power conferring norm can be initially presented as “ip ∧ p ⇒ ◊ ∧ P {Sarastro} dc {SA}”.
- 105 Which seems to be the explanation for the “thief example” (Lindahl 2001: 160, Spaak 2009: 74): the (...)
69The distinction between the generic action and the individual acts by which the law is effectually changed is, however, decisive to understand a competence norm as a constitutive permission. And this distinction is decisive because being (generically) permitted to produce deontic consequences does not necessarily mean that all the tokens of such action are permitted as well: nothing inhibits the system from having other norms forbidding some exercises of the power at hand. Therefore, if a power conferring norm (generically) allows the production of deontic consequences, each of these consequences can be limited by the eventual existence (within the set) of other norms prohibiting tokens of that action.105
(cv) a norm such as “ip ∧ p ⇒ ◊ ∧ P {Sarastro} dc {SA}” gives Sarastro the possibility and the permission to exercise the generic action of producing deontic consequences (here, on padlocks); therefore, he is allowed to “deontically do” whatever he wants on the topic.
(cvi) however, if the system has a norm such as the one in “it is forbidden to put padlocks on people’s lips”, then Sarastro may not enact a norm allowing padlocks on people’s lips: he is forbidden from producing this specific deontic consequence (limiting superior norm).
(cvii) if Sarastro has enacted “everyone can sell padlocks”, then the Three Ladies can sell padlocks (they have the power to do so); but they cannot sell the padlock owned by the Queen of the Night if Sarastro also enacted “it is forbidden to sell another’s padlocks” (limiting superior norm).
- 106 Hohfeld 1919: 50, Kramer 1998: 20. It is worth noting that the notion of liability is strongly depe (...)
- 107 Using the word “subjection”, Celano 2019: 34, Schlag 2015: 202.
70A competence norm gives the PA set agent a position called power, usually inserted, under the Hohfeldian tradition, in a correlativity line with a liability. Correspondingly, a liability is seen as the position of being unshielded from a change in previous legal positions: the liability holder, thus, is subject to the changes realized by the power holder.106 However, this seems empty. Being exposed to a normative change has no content of its own. It either just describes that a possibility of deontic change exists, or it results from a failure to distinguish competence from what is done with it. In the former, there is no independent content; in the latter, it seems evident that “subjection” comes from the norm enacted.107
- 108 So, when they were allowed to φ and forbidden to φ ´, they keep on being so. For the Hohfeldian lia (...)
71It is clear that a norm of competence introduced into the system gives its holder a power to produce deontic consequences. For SA set agents, however, it seems that nothing happens besides the mere possibility of a change in their legal positions. So, if a liability stands for this mere possibility, it becomes difficult to unveil how it can be seen as a deontic position in itself: if power is not exercised (and while it is not), SA set agents remain deontically static.108 With a content such as the mere possibility of change, a liability only expresses what SA set agents already have just for being within the correlativity line: that they correlate with agents that have power over them (there is no independent content).
(cviii) a norm such as “ip ∧ p ⇒ ◊ ∧ P {Sarastro} dc {SA}” gives Sarastro the possibility and the permission to produce deontic consequences regarding padlocks; this means that he can and may change legal positions of others (the Three Ladies’ and everybody else’s).
(cix) under such a norm, Sarastro can enact “it is forbidden to put padlocks on people’s lips”; however, until the utterance of this norm, nothing happens: the Three Ladies (as all the others) remain exactly with the same deontic set of positions as they had before.
(cx) with “ip ∧ p ⇒ ◊ ∧ P {Sarastro} dc {SA}”, the Three Ladies (and everybody else) are SA set agents of such norm: enacting that norm gave them a new position; however, describing this new position as “Sarastro has power over them” is merely to describe Sarastro’s position.
- 109 Regarding SA set agents of the competence norm, that can also be PA or SA sets agents of the norms (...)
72It is also clear, on the other hand, that a possibility of change signifies that an effective change occurs when power is exercised by its holder, which means that SA set agents are subject to whichever deontic consequences may be produced. However, if being subject is different from being under the mentioned possibility of change, then there is no room for any content other than being under the deontic consequences effectively produced: from this particular angle, subjection is the situation one is in when an action becomes imposed, forbidden, or permitted (and precisely for that reason).109 From this perspective, a liability would be simply an inaccurate way to describe the deontic consequences produced.
(cxi) under “ip ∧ p ⇒ ◊ ∧ P {Sarastro} dc {SA}”, Sarastro enacted “it is forbidden to put padlocks on people’s lips”; with this norm, the legal position on the matter held by the Three Ladies ceased to be a liberty and it is now a duty not to: that is, they are now under a prohibition (new duty).
(cxii) being under a prohibition is the result of an exercise of that competence norm; thus, if subjection means the new duty, then a liability would be a confusion between the result of the action foreseen in the competence norm and the position given to SA set agents with the exercise of power.
- 110 On the private exercise of power, Hage 2018: 98, MacCormick 2005: 250.
- 111 None of them being a liability. Actually, Hohfeld construction is perplexing here (Hohfeld 1919: 55 (...)
73What has been said is totally valid whenever power is exercised through contracts, dominant in the private sphere, where agents, for the reason of private autonomy, only create deontic consequences through agreements and very specific unilateral acts.110 And it is valid because change only occurs with the exercise of power, meaning that nothing happens before and that deontic consequences only come from that exercise. This is immediately visible with a proposal: when an agent makes an offer, she is exercising her power to do so; but she is only creating the self-binding duty to a posterior joint exercise of power on the terms she proposed. Before the proposal there was nothing; afterwards, there are new positions.111
(cxiii) under “ip ⇒ ◊ ∧ P {PA} dc {SA}” (a private autonomy general competence norm), Papageno can and may sell his Glockenspiel; when he proposes to sell it to the Three Boys for £50, he is exercising that power and creating a self-duty to jointly exercise the power on the terms of his proposal; naturally, the Three Boys hold the correlated claim-right; the proposal just created these two positions.
- 112 On contracting as a case of joint action, Tuomela 2010: 85, Miller 2004: 54.
- 113 The following example (cxvi) is a remake of the “watch situation” that Hohfeld presented to show an (...)
74An agreement following the acceptance of the proposal is, then, another exercise of power; specifically, a joint exercise of the competence norm that will create different positions from those already given by the offer (and extinguishing these).112 By concluding the agreement, the parties confer a set of legal positions to each other that did not exist before. And the main point is that there is no room for any sort of liability: the change manifests itself with new positions (duties, liberties, and so forth; or aggregates of them). So, again, no change takes place before the exercise of a private autonomy general competence norm, whether until the enactment of a proposal or, afterwards, until the agreement is concluded.113
(cxiv) based on Papageno’s proposal (creating a duty and a claim-right to jointly exercise power under the terms of his offer), the subsequent conclusion of the agreement is another (different) exercise of power, leading to new positions: now, Papageno owns £50 (the aggregated positions typical to ownership) and the Three Boys own the Glockenspiel (idem).
(cxv) accordingly, be it the self-duty and its correlated claim-right, resultant from the offer (unilateral exercise of power) or the ownership of £50 and a Glockenspiel, resultant from the agreement (bilateral exercise of power), neither Papageno nor the Three Boys had had any position other than those now described: there is no space for any liability.
(cxvi) if Papageno decides to abandon his Glockenspiel, he exercises his power to extinguish his ownership; but such exercise does not create any liability; first, a res nullius Glockenspiel is a mere factual condition to a future ownership; second, if Papageno had the power to abandon his Glockenspiel, all the others would already have a liability before Papageno’s exercise of power.
75All considered, it seems that a liability cannot be understood as meaning neither the deontic consequences produced under the competence norm nor an alternative way to describe the position held by SA set agents while facing a possible legal change. As a matter of fact, being a power holder is exactly having power over a set of agents, which is precisely what is being designated with a Hohfeldian liability. Accordingly, the correlativity between a power and a liability only works with a conception of correlativity as a material equivalence, something that, as seen before, does not accurately describe the law. As with any norm of the set, the position given to SA set agents in a competence norm also involves some co-action (an independent content), having a specific deontic modalization of its own.
76An attentive observation of competence norms shows that they are permissions as any others (under the present approach), except for the fact that those norms additionally confer the possibility of producing deontic consequences. This feature is, however, normatively secondary, since it is not related to the regulation of behaviour: it is strictly linked to the ability to act. It seems, then, that there are no reasons whatsoever to correlate power with a different position than the duty to not defeat the internal possibility (as follows from any permissive norm). Although regarding tokens of a deontic action, SA set agents are here in the exact same position as any SA set agent is within a permission.
(cxvii) under “ip ∧ p ⇒ ◊ ∧ P {Sarastro} dc {SA}”, Sarastro has the power (possibility and permission) to produce deontic consequences; thus, SA set agents are under a duty not to defeat his internal possibility to produce them: e.g., they may not grab or immobilize him when he is enacting a norm.
(cxviii) the same is valid with the Sarastro’s Brotherhood or even Papageno (a body and a private individual) as PA set agents: SA set agents may not prevent the Brotherhood assembly from deliberating just as much as they may not physically block Papageno from abandoning his Glockenspiel.
(cxix) conceiving competence norms as constitutive permissions as any others leads to seeing them as follows: “(ip ∧ e ⇒ ◊ ∧ P {PA} dc) → (ip ⇒ O {SA} ~dip)”, with “e” for “everything”, P regulating PA set agents’ deontic action and O regulating the SA set agents’ correlated (adaptative) co-action.
- 114 Which is, then, a necessary condition for (directly) producing deontic consequences. Actually, deon (...)
77Accepting that power is the position connected with the type of action of producing deontic consequences and that this action is constituted by a competence norm necessarily signifies that no power exists without the latter: such a norm is a necessary and sufficient condition of power.114 It follows, then, that it is only with a norm of this sort that power is assigned to a PA set agent, giving her a (new) legal position she would not hold without it. From the opposite perspective, it is also clear that a power with a specific content can be legally modified: when the normative authority revokes a power conferring norm or partially derogates its scope, some change occurs and power either disappears or has a new content.
(cxx) when the normative authority enacted “(ip ∧ p ⇒ ◊ ∧ P {PA} dc) → (ip ⇒ O {SA} ~dip)”, Sarastro became the holder of a power regarding padlocks; now, he can and may produce deontic consequences on the topic, something “inexistent” to him (as the holder of power) before such norm.
(cxxi) if the normative authority revokes that norm, Sarastro returns to the original standpoint: he has no power; if that authority states that Sarastro is only competent with “wood padlocks”, his power has been changed; yet, in both these scenarios deontic consequences have been produced.
- 115 On these “norms”, Ferrer 2000: 162. Also, Ruiter 1993: 157.
- 116 On descriptive enactments, Amselek 1988: 195, Ross 1968: 71.
78A totally different scenario occurs when a normative authority enacts what can be wrongly called a “norm of incompetence”: when a normative authority states that a body or a person does not have power (and never did).115 A significant aspect justifies the said difference: such “norm of incompetence” is not a norm at all. Since no deontic consequences are being produced (and no previous positions are being changed), an enactment of this sort is merely a descriptive sentence about the law: it is saying that the body or the person at hand lacks power.116 Thus, officially stating “incompetence” is just a descriptive utterance about the absence of a competence norm (signalling “no power”).
(cxxii) if the power conferring norm “(ip ∧ p ⇒ ◊ ∧ P {PA} dc) → (ip ⇒ O {SA} ~dip)” had never been enacted, Sarastro never had the power on the topic at hand; if, in this scenario, the normative authority enacts “Sarastro has no power regarding padlocks”, no norm is being produced.
(cxxiii) therefore, “Sarastro has no power regarding padlocks” is no other than a description of a state of affairs: the normative authority did not change the law, no deontic consequences were produced, and no ideal state of affairs has been conceived (by such authority).
- 117 (Hohfeld 1919: 60). On Hohfeld’s disabilities, Lindahl 1977: 25, Cook 1919: 727.
79It is precisely for the reason that the absence of power has no normative basis (and cannot be assigned to any legal norm whatsoever) that it is claimed here that Hohfeldian disabilities and immunities are no other than an expression of a confusion between norms and normative propositions: when Hohfeld makes reference to a disability he is not pointing out a legal position, but merely describing its absence (in this case, power).117 And this seems to be quite clear. If one accepts that there are no positions without norms and that no norm can confer a position opposed to one dependent on constitutivity, one must also accept that the word “disability” just plays the role of a normative proposition.
(cxxiv) if without “(ip ∧ p ⇒ ◊ ∧ P {PA} dc) → (ip ⇒ O {SA} ~dip)” Sarastro never had power regarding padlocks, then he (allegedly) has a Hohfeldian disability: he lacks power; lacking power, though, is a legal nothing, from which it follows that the word “disability” is merely a description of such emptiness; and this is so since power is constituted (and if not constituted it just does not exist).
- 118 Kocourek 1921: 34. And this might be, speculatively, the reason why Bentham disregarded these posit (...)
- 119 On norms with sanctions, Hage 2018: 207, Calsamiglia 1994: 763.
80Given Hohfeld’s conception of correlativity as a material equivalence, the “disappearance” of disabilities as legal positions has to imply the same consequence to immunities. And such consequence seems to be right. As a matter of fact, it is so deontically empty to not have power as it is to be in the correlative position: there is no possible normative basis regarding not producing and not being targeted by deontic consequences.118 It is exactly for this reason that, when some agent claims an inexistent power and allegedly produces deontic consequences, it is common to have a third norm foreseeing a specific sanction for such action: often, it means the immediate removal of those “consequences” from the system.119
(cxxv) if Sarastro has no power regarding padlocks, he cannot and may not produce deontic consequences on the matter; consequently, no one can be affected by something he cannot do; regarding power, Sarastro is as relevant to the Three Ladies (and everybody else) as the King of Portugal is.
(cxxvi) if even without power Sarastro enacts “it is forbidden to put padlocks on people’s lips”, the most probable outcome (contingently depending on the system) is that a norm such as “norms enacted by incompetent bodies or persons are null and void” will be applied.
- 120 Examples of the common usage of immunity in Wellman 2016: 123, Edmundson 2004: 82. With an extremel (...)
- 121 Distinguishing precisely between these two cases (prohibition of exercising competence and not havi (...)
81Accepting that a legal position such as an immunity simply does not exist (because it cannot, for the given reasons) seems to confront its wide usage in the legal field: it is rather recurrent to affirm that an agent has an immunity when she is somehow safeguarded against another agent (a powerless one).120 This seems to be, however, a confusion either with an effective claim-right or with nothing. Actually, the large majority of the usually called “immunities” are no other than claim-rights coming from prohibitions of exercising competence towards a specific set of persons. And all the remaining ones, on the other hand, are mere external descriptions of someone being outside the scope of a certain power.121
(cxxvii) under “(ip ∧ p ⇒ ◊ ∧ P {PA} dc) → (ip ⇒ O {SA} ~dip)” Sarastro has enacted “it is forbidden to put padlocks on people’s lips”; but it turns out that Sarastro also has the power (given by another competence norm) to apply a fine of £300 whenever the prohibition he enacted is breached.
(cxxviii) if the normative authority forbids Sarastro from applying that fine to members of the Queen of the Night’s court (forbidding a specific exercise of power), then each member of the court does not have an immunity: each one has a claim-right not to be fined (correlated to the duty; not the power).
(cxxix) if the normative authority enacts “Sarastro’s power to apply the £300 fine is partially derogated regarding peasants”, then Sarastro’s competence has been narrowed; however, peasants do not have immunities: Sarastro is as legally irrelevant for them as the King of Portugal is.
(cxxx) it can be difficult to grasp whether a norm sentence contains a prohibition of exercising competence or a partial derogation of power (a hard case example could be “peasants are exempt from the £300 fine”); however, it is either one or the other and the corresponding consequence follows.
- 122 Halpin 1985: 436, Hage 2018: 231.
82A table of atomic legal positions can now be presented. A table with positions that are, moreover, comprehensive, sufficient, and irreducible. Comprehensive since there are no other positions besides these (without aggregation). Sufficient in the sense that there are no positions (with aggregation) that cannot be assigned to a combination of them. And irreducible because there are no positions in which they can be broken into.122 On the other hand, the present table of atomic legal positions is entirely norm-based: each atomic type follows from a specific deontic modalization of action (or constituted action, in power). Thus, each one has a specific content (independent) and a specific deontic status (autonomous).
83As seen, and at the first order level, a permissive norm creates two legal positions: (i) a liberty; and (ii) a duty not to defeat the internal possibility. Since strong permissions have to be understood as bilateral, the former is characterized both by the faculty of exercising or not the main action foreseen and by having the corresponding token of such action as content. On the other side of the correlativity line, the duty not to defeat the internal possibility regards the variable co-acts that can make the exercise of the liberty internally impossible (an adaptative content under an obligation not to). Clearly, these legal positions always follow whenever a permission is enacted by a normative authority.
(cxxxi) a permissive norm confers to PA set agents a liberty to φ and ~φ and to SA set agents (with an obligation) a duty not to defeat the internal possibility of φ and ~φ (co-act: φ´); it is what follows from a norm such as “(ip ⇒ P {PA} φ) → (ip ⇒ O {SA} ~φ´)”; the first correlativity line is:
Pφ → liberty to φ ∧ ~φ ↔ O~φ’ → duty not to dip φ ∧ ~ φ
84As also seen, and still at the first order level, prohibitions and impositions create two legal positions: (i) a duty; and (ii) a claim-right (negative or positive depending on being given by a prohibitive or a mandatory norm). A duty is the legal position regarding the main action foreseen in the consequence of those norms, having such action as its own content (regardless of being an action in the strict sense or an omission). On the other side, a claim-right is the position formed by the adaptative co-acts (including passive action) that connect the holder to the bringing about of the main action’s result. Such co-acts are deontically permitted (since they are in contradiction with the status of the duty bearer).
(cxxxii) a mandatory norm confers to PA set agents a duty to φ (or ~φ) and to SA set agents a claim-right to φ (or to ~φ) under a permission to manage the result of action (co-act: φ´); it is what follows from a norm such as “(ip ⇒ O {PA} φ) → (ip ⇒ P {SA} φ´)”; the second correlativity line is:
Oφ (or ~ φ) → duty to φ (or ~ φ) ↔ P~φ‘ → claim-right to φ (or ~ φ)
(cxxxiii) a table of first order legal positions entails two correlatives (co): (i) duty with claim-right; and (ii) liberty with duty not to defeat; it also entails two contradictories (ct): (i) duty with liberty; and (ii) claim right with duty not to defeat; it is as follows:
85At the second order level (where the dynamic of the system comes from), there are only power conferring norms. Since these norms are permissions as any others, yet with the specificity of constituting a type of action impossible without them, their distinction from first order permissions is only felt in the first position of the correlativity line: precisely the point where the mentioned constitutivity makes some difference. Accordingly, a competence norm creates: (i) a power; and (ii) a duty not to defeat the internal possibility. If the latter has the same adaptative content as in any permission (being under an obligation), the former is the already known (permitted) possibility to produce deontic consequences.
(cxxxiv) a competence norm confers to PA set agents a power to φ and ~φ and to SA set agents (with an obligation) a duty not defeat the internal possibility of φ and ~φ (co-act: φ´); it is what follows from a norm such as “(ip ∧ e ⇒ ◊ ∧ P {PA} dc) → (ip ⇒ O {SA} φ´)”; the second order correlativity line is:
◊ ∧ P φ → power to φ (or ~ φ) ↔ O~φ‘→ duty not to dip φ ∧ ~ φ
(cxxxv) a complete table of legal positions shows the previous four with the single differentiated position given by competence norms: power; since these norms are permissions as any others, it is only on the PA set side that they show that difference; it is as follows:
86A table of atomic legal positions entirely norm-based connects such positions with the two sets of addressees included in any norm. A taxonomy of such positions based on that criterion can follow. Therefore, one can distinguish between “primary legal positions”, those held by agents of a PA set, and “secondary legal positions”, those held by agents of a SA set. In the former we have: (i) liberties; (ii) duties; and (iii) powers. In the latter we have: (i) duties not to defeat the internal possibility; and (ii) claim-rights. As was discussed above, while primary legal positions always regard the main action normatively foreseen, the secondary ones regard the adaptative co-action inherent to the correlativity line.
(cxxxvi) “primary legal positions” are positions held by PA set agents {PA}: liberties, as follows from “(ip ⇒ P {PA} φ) → (ip ⇒ O {SA} ~φ´)”; duties, as follows from (ip ⇒ O {PA} φ) → (ip ⇒ P {SA} φ´); and powers, as follows from “(ip ∧ e ⇒ ◊ ∧ P {PA} dc) → (ip ⇒ O {SA} ~φ´)”.
(cxxxvii) “secondary legal positions” are positions held by SA set agents {SA}: duties not to defeat the internal possibility, as follows from “(ip ⇒ P {PA} φ) → (ip ⇒ O {SA} ~φ´)” and from “(ip ∧ e ⇒ ◊ ∧ P {PA} dc) → (ip ⇒ O {SA} ~φ´)”; and claim rights, as follows from (ip ⇒ O {PA} φ) → (ip ⇒ P {SA} φ´).
- 123 On defeasibility as a dispositional property of all norms, Ratti 2013: 122, Brożek 2004: 169.
- 124 On undercutting and rebutting defeasibility (and the way systems solve the conflicts that give rise (...)
87Since norms have the dispositional property of being defeasible (at least first order norms), the positions they give, either to agents of the PA set or to agents of the SA set, are only prima facie positions: that is, their definitiveness regarding some case depends on an all norms considered assessment recognizing the inexistence of a conflict (between two or more norms) or, if such conflict takes place, the prevalence of the norm at hand.123 And this is valid for both positions of a norm: irrespective of undercutting or rebutting defeasibility, the prevalence of a norm over another (imposed by a norm of conflicts or by balancing) signifies the twofold prevalence of its correlated positions.124
(cxxxviii) Sarastro enacted “it is forbidden to put padlocks on people’s lips” with {all} in the PA set and “it is allowed to put padlocks on people’s lips” with {the Three Ladies} in the PA set; these norms are in conflict: the Three Ladies are forbidden to act by the first norm, but permitted by the second; since the system has lex specialis, their prima facie liberty prevails over their prima facie duty (undercutting defeasibility); but this also means that the correlated duty not to defeat prevails as well.
(cxxxix) Sarastro enacted “everyone is allowed to sing” and “it is forbidden to harm personal reputation”; when Papagena sings something attacking Monostatos’ honour, she is prima facie permitted by the first norm, but prima facie forbidden by the second; since the system has no norm of conflicts applicable (rebutting defeasibility), only a balancing solves the conflict; yet, the prevalence of the liberty also signifies that the correlated duty not to defeat prevails as well.
- 125 On expressing addressees, Frändberg 2018: 86, Pino 2016: 46.
88An analysis of norm sentences usually enacted by normative authorities shows that an explicit enunciation of both sets of addressees is uncommon. As a matter of fact, the large majority of norm sentences mention only one set: whether the PA or SA set (but sometimes neither).125 Although it is of no surprise that normative authorities do not consider correlativity as a criterion for norm sentences drafting (as they could, among others), the fact is that whenever only one set is presented (almost always), a complex problem arises. Since correlativity is not text-dependent, the interpreter has to realize who the agents belonging to the set the normative authority did not make explicit are.
(cxl) the NS “Sarastro’s Brotherhood has the duty to provide health care to citizens” is a less usual case of explicit reference to both sets: the PA set {Sarastro’s Brotherhood} and the SA set {citizens}; thus: “(ip ⇒ O {Sarastro’s Brotherhood} φ) → (ip ⇒ P {citizens} φ´).
(cxli) the NS “everyone is allowed to sing” is an usual case of a NS that only mentions the PA set {everyone}: nothing is written about who belongs to the SA set; on the basis of what is explicit, that NS expresses a N such as “(ip ⇒ P {everyone} φ) → (ip ⇒ O {SA} ~φ´)”; (or {everyone} = {physical persons}).
(cxlii) the NS “it is forbidden to harm personal reputation” is an usual case of a NS that only mentions the SA set {people}: nothing is written about who belongs to the PA set; on the basis of what is explicit, the N expressed is: “(ip ⇒ F {PA} φ) → (ip ⇒ P {people} φ´)”; (or {people} = {physical persons}).
(cxliii) the NS “it is forbidden to use £1 coins” is a less usual case of a NS that does not mention the PA set nor the SA set: nothing is written about who belongs to each of the sets; on the basis of what is explicit, the N expressed is: “(ip ⇒ F {PA} φ) → (ip ⇒ P {SA} φ´)”.
- 126 On empirical correlativity, Halpin 2019b: 86, Radin 1929: 902.
89As in many areas of legal knowledge, the task of realizing the members of an unexpressed set can also be an easy or a hard case. When there are some duties imposed on a set of addressees, identifying who the members of the omitted set are might turn out to be a simple task: a norm conferring a claim-right to “employees” (explicitly mentioned) most probably is imposing a duty on the agents belonging to an unwritten set of “employers”. It can be said that in such cases both sets are easily conceivable: one because it is explicitly mentioned, the other because it is connected with the first by a clear case of empirical correlativity.126 Nevertheless, and as usual, things might turn out to be not that easy.
(cxliv) the NS “it is mandatory to pay 500 florins (£500) per month to personal employees” only mentions the SA set {employees}; however, it seems clear that the PA set is {employers}; thus, despite the insufficiency, one may reach “(ip ⇒ O {employers} £500/month) → (ip ⇒ P {employees} φ´)”.
(cxlv) the NS “freedom of the press is recognized” may be qualified as a hard case; on the one hand, because neither the PA set nor the SA set are explicitly mentioned; on the other hand, because defining the liberty holders depends on the (complex) open texture of the word “press”.
- 127 On addressees and interpretation, Florczak-Wator 2015: 24, Herrestad 1996: 20.
- 128 Two methodological guidelines can be proposed. The first regards legal and physical persons: whenev (...)
90It must be stressed at this point that this is actually an interpretative problem related to the norm sentence (although with some specificities): it can be connected to some semantic indeterminacy of the text (“press” in the last example), but it is mainly an interpretative problem arising from the insufficient information given by the sentence effectively enacted by the normative authority (sets of addressees that are not even mentioned).127 Therefore, the interpreter must somehow fill those gaps, using the contextual linguistic elements available, inferences to the best explanation about who acts and who faces action, or even consider some pragmatic methodological guidelines.128
(cxlvi) “it is forbidden to use £1 coins” mentions neither the PA nor SA set; using the interpretative criterion coming from equality (generality of general norms), it seems that each set should be conceived as extended as it is interpretatively appropriate; since both physical and legal persons can use coins, it seems that the N is: “(ip ⇒ F {all} φ) → (ip ⇒ P {all} φ´)”; ({all = physical and legal persons}).
- 129 On these expressions, Iacona 2015: 129, Peters and Westerståhl 2006: 10.
91Independent of such epistemic insufficiencies, the fact is that a set of addressees can contain a variable number of elements. On this basis and considering the universe of possible agents within the territorial scope of the norm at hand, they could be measured with the quantifier expressions {all}, {some}, and {one}.129 Therefore, inside that domain, the set with {all} is the universal one and the sets with {some} and {one} are just proper subsets. In the former, membership to the set is assigned to a category of agents, while in the latter the set is a singleton. So, whichever the way a normative authority designs addressees, they will necessarily amount to one of these three quantifiers: {all}, {some} and {one}.
(cxlvii) with a N such as “(ip ⇒ O {all} φ) → (ip ⇒ P {all} φ´)” both PA and SA sets contain the whole universe of agents under the present domain; this means that both the PA and SA sets entail all physical and all legal persons covered by the territorial scope of that norm.
(cxlviii) with a N such as “(ip ⇒ O {some} φ) → (ip ⇒ P {some} φ´)” both PA and SA sets contain a subset category of agents under the present domain; this would be the case of a PA set with {employers} or {legal persons} and a SA set with {employees} or {physical persons}.
(cxlix) with a N such as “(ip ⇒ O {one} φ) → (ip ⇒ P {one} φ´)” both PA and SA sets contain just one element of the universal set under the present domain; this would be the case of a PA set with {the State} or {Sarastro} and a SA set with {Papagena} or {the Queen of the Night}.
- 130 Which is the (general) normative way to express multitalcity (Hohfeld 1919: 72, Barker 2018: 592). (...)
92When the PA and the SA sets contain {all} or {some}, each member of each one of those sets is a singular holder of the legal position the set stands for. Consequently, regarding the prohibition of φ, for instance, each member of the PA set is the holder of a duty to ~φ and each member of the SA set is the holder of a claim right to ~φ. Naturally, this also applies to permissions: each agent of the PA set holds a liberty to φ and ~φ and each agent of SA set holds a duty not to defeat the internal possibility of φ and ~φ.130 When the correlativity line has no other empirical or legal limits, each member of one set holds the position towards each of the agents that belong to the correlated set (under the norm at hand).
(cl) in “(ip ⇒ P {all} φ) → (ip ⇒ O {all} ~φ´)”, PA = {u, v, w, x, …} and SA = {u, v, w, x, …}; here, u holds a liberty towards v, and w, and x, and so forth; in the same way, x holds a duty not to defeat towards u, and v, and w, and so forth; in this case, there are as many correlativity lines (tokens) as the possible instantiations of N; the same holds for a norm with {some} instead of {all}.
- 131 When it is a right (in the following examples, with mandatory norms, it is a collective duty). On t (...)
93A setting such as this provides a scheme that must be taken as a mere default, namely since it presupposes that the exercise of the action φ by PA set agents is disjunctive: that is, each member of the PA set, taking into account the type of action foreseen, can exercise it individually. However, it does not have to be so. A norm can foresee a type of action that has to be exercised collectively (joint action): when this is the case, and irrespective of the specific way in which SA set agents perform their position, the exercise of the main action is jointly carried out by all (or a significative number of) the members of the set. As is known, this is one of the many senses in which one speaks about collective rights.131
(cli) in “(ip ⇒ P {physical persons} s) → (ip ⇒ O {all} ~φ´)”, each physical person is allowed to sing (s); since it is an action that can be exercised individually, the PA set is disjunctive: {∨ physical persons}.
(clii) in “(ip ⇒ P {physical persons} a) → (ip ⇒ O {all} ~φ´)” each physical person is allowed to assemble (a); since it has to be exercised collectively, the PA set is conjunctive: {∧ physical persons}.
(cliii) in “(ip ⇒ F {all} k) → (ip ⇒ P {physical persons} φ´)”, everyone is forbidden to kill (k); since it is an action (omission) that can be exercised individually, the PA set is disjunctive: {∨ all}.
(cliv) in “(ip ⇒ O {physical persons} snatime1) → (ip ⇒ P {all} φ´)”, all members of the set are obliged to sing the national anthem at time1 (snatime1); the PA set here is also conjunctive: {∧ physical persons}.
- 132 Which is another one of the many senses in which we speak about collective rights (related to commo (...)
94Regarding how the result of action impacts SA set agents’ co-action (not the individual or collective way in which it is exercised by PA set agents, as above), an equivalent distinction can be designed within the set of secondary addressees. Hence, it is possible to distinguish between types of (main) actions that imply a disjunctive or a conjunctive co-action from SA set agents. In the latter, it is collective: since the main action is experienced by all once it is experienced by one, SA set agents’ co-action has to be common.132 In the former, the main action is only individually experienced by the members of the SA set: it follows that co-action from SA set agents is an individual task of each member of the set.
(clv) in “(ip ⇒ P {physical persons} s) → (ip ⇒ O {all} ~φ´)”, the main action (sing) is experienced by each one within the SA set; SA set agents’ co-action is disjunctive: {∨ all}.
(clvi) in “(ip ⇒ F {all} k) → (ip ⇒ P {physical persons} φ´)”, the main action (killing) is experienced by each one within the SA set; SA set agents’ co-action is disjunctive: {∨ physical persons}.
(clvii) in “(ip ⇒ O {State} he) → (ip ⇒ P {all} φ´)”, the main action (a healthy environment) is experienced by the whole SA set; SA set agents’ co-action is conjunctive: {∧ all}.
- 133 On groups (or collectives) and agency, Tuomela 2010: 13, Schmid 2009: 13.
- 134 Campbell 1998: 110. Differently, Jovanović 2012: 125, Wall 2007: 235.
95Since the content of any normative element is entirely dependent on the will of the normative authority, the quantifier {some} reflects the most differentiated kinds of categories. A normative authority can confer liberties or claim-rights to categories as different as “padlock manufacturers”, the “Sarastro’s Brotherhood”, or the “Sumerian speaking minority”.133 And, irrespective of the ties between their members (and their shared beliefs), each of these categories is solely a different configuration of {some}. So, with any of them we can have legal positions that are disjunctive or conjunctive exactly in the same terms as above. Analytically, there seems to be no difference between different possibilities of {some}.134
(clviii) in “(ip ⇒ P {Sumerian speaking minority} sol) → (ip ⇒ O {all} ~φ´)”, each physical person member of the PA set is allowed to speak their own language (sol); since it is an action that can be exercised individually, the PA set is disjunctive: {∨ Sumerian speaking minority}.
(clix) in “(ip ⇒ O {State} rds) → (ip ⇒ P {Sumerian speaking minority} φ´)”, the main action (recognizing the decision to secede) is experienced by the whole SA set; accordingly, SA set agents’ co-action is conjunctive: {∧ Sumerian speaking minority}.
- 135 When one set is or both sets are {one}, the third and the fourth relations are not possible: subsec (...)
96On the other hand, the PA and SA sets occupy different locations in the structure of norms, which means that they stand for different legal positions. Taking into account that each set results from a contingent decision taken by the normative authority, it is a matter of mere logic that the PA and SA set can possibly connect as follows: (i) PA and SA have the same agents; (ii) PA and SA do not share agents; (iii) PA is a subset of SA or vice-versa; and (iv) PA intersects with SA.135 For present purposes, these relations among sets are not relevant: they are purely informative. What is relevant is that, with equality, subsection, or intersection, an agent can be simultaneously a member of the PA and the SA sets.
(clx) if PA = {u, v, w, x} and SA = {u, v, w, x}, then PA = SA; it follows: (u, v, w, x) ∈ (PA ∧ SA).
(clxi) if PA = {v, w, x} and SA = {u, v, w}, then PA ⋂ SA; it follows:(v, w) ∈ (PA ∧ SA).
(clxii) if PA = {u, v} and SA = {u, v, w, x}, then PA ⊂ SA; it follows: (u, v) ∈ (PA ∧ SA).
(clxiii) if PA = {u, v} and SA = {w, x}, then PA ⋂ SA = Ø; no overlap exists.
- 136 Which is also valid for a competence norm. However, this is not to be confused with the different c (...)
- 137 Singer 1959: 203. With a different account, Hills 2003:135.
97In normative situations such as these (when the PA and SA set share agents), it is important to note that the agent does not correlate with herself. Such premise follows from the assumption that a line of correlativity between the same agent leads to a deflation of both legal positions. In a liberty ↔ duty not to defeat the internal possibility, this is because breaching the duty amounts exactly to not exercising the liberty.136 In a duty ↔ claim right line, it is because the (single) holder may weak-waive the duty, and a duty from which one may release cannot be qualified as duty at all.137 An agent member of both sets, thus, only correlates with other agents of the correlated set (PA to SA and vice-versa).
(clxiv) if PA = {u, v, w, x} and SA = {u, v, w, x}, when u holds a PA position she only correlates with v, w, and x; naturally, when u holds a SA position, u only correlates with v, w, and x.
(clxv) if u ∈ PA ∧ u ∈ SA, u cannot correlate with herself; if she holds a duty, she may weak waive it; if she holds a liberty, defeating herself is the same as not exercising the liberty.
- 138 Hohfeld 1919: 36. Also, Kramer 1998: 26. It should be said, nonetheless, that Kramer´s slope metaph (...)
98As mentioned, Hohfeld conceived correlativity as a necessary reflexive connection between two legal positions (material equivalence): since each of them is just a different perspective of the same ligation, a duty implies a claim-right in the exact same way that the latter implies the former (effective in all correlativity lines).138 Such conception of correlativity was already criticized here: it is sustained on a reductive understanding of action, from which it follows that, although almost untouchable in its own scheme, it does not describe law correctly: since a duty often requires co-action from the correlated agent (e.g.), positions have different contents. And this is clearly incompatible with Hohfeld’s correlativity.
- 139 Even though this {all} can also be a very specific case of {one} (the State {State}) or an extended (...)
99This criticism of Hohfeldian correlativity does not lead, however, to discharging correlativity itself. Quite on the contrary: correlativity is the exact expression for the relation between two poles that can be found in each and every norm of a legal system. Irrespective of which action is regulated, any norm of the system connects a PA set to a SA set. Given that law regulates the behaviour of more than one agent, the deontic modalization of an action gives rise to a position that is necessarily “relative”: any action permitted, imposed, or prohibited, if not correlated with {some} or {one}, ultimately expresses the connection an agent has (or a set of agents have) with all the others or the community as a whole {all}.139
- 140 Kramer 1998: 58.
- 141 On those norms as denying correlativity, Hart 1982: 185, D’Almeida 2016: 560.
- 142 So, any norm correlates a primary position (main action) with a secondary one (co-action), a propos (...)
100Correlativity has been challenged, particularly in the duty ↔ claim-right line. However, and as Kramer has exemplarily shown, there is no single case that cannot be explained under a correlativity scheme.140 In fact, the main problem related to such challenges is that most of the examples presented are cases where quantifiers of the SA set are not taken into account. Norms of criminal or administrative law confer duties that, if not correlated with {one} or {some}, necessarily correlate with {all}.141 Regardless of how difficult it can be to grasp who SA set agents are, the fact is that to impose a duty on an agent would be pointless if even the community were not to experience the result of action.142
(clxvi) Sarastro enacted “(ip ⇒ F {PA} pl) → (ip ⇒ P {SA} φ´)”, a prohibition to put padlocks on people’s lips; the duty everyone has to refrain from doing it correlates with a claim-right every physical person has (disjunctively): therefore, Sarastro enacted “(ip ⇒ F {∨ all} pl) → (ip ⇒ P {∨ physical persons} φ´)”.
(clxvii) Sarastro also enacted “(ip ∧ bpp ⇒ O {breachers} pay £300) → (ip ⇒ P {SA} φ´)”, a £300 fine on whoever breaches the prohibition (“bpp” as breaching the padlock prohibition); the duty correlates with a claim-right held by all (conjunctively): “(ip ∧ bpp ⇒ O {∨ breachers} pay £300) → (ip ⇒ P {∧ all} φ´)”.
(clxviii) both in the first N “(ip ⇒ F {∨ all} pl) → (ip ⇒ P {∨ physical persons} φ´)” and in the second one “(ip ∧ bpp ⇒ O {∨ breachers} pay £ 300) → (ip ⇒ P {∧ all} φ´)” there is an asymmetric correlativity: the mere adaptative content of the positions given to SA set agents is enough to verify it.
- 143 Discussing the topic, MacCormick 1977: 200, Raz 1984: 211. Generally, Penner 1997: 304.
101An asymmetric correlativity is recognized here, then, as inherent to any norm of the system, which is enough to claim it as a universal proposition. However, and given the way in which it is conceived, such asymmetric correlativity also provides an answer to a very inconsequential topic: to know if duties are prior to rights or the other way around.143 Actually, and coherently with the normative structure that sustains each type of right, as seen before, it depends exactly on the right at hand: rights do not have or lack “priority” over duties just for being rights. So, while it seems clear that liberties and powers are prior to duties, claim-rights are duty-based and thus only justified on their basis.
(clxix) in “(ip ⇒ P {PA} φ) → (ip ⇒ O {SA} ~φ´)”, the right (liberty) is prior to the duty: the main action is assigned to the liberty holder (PA set).
(clxx) in “(ip ⇒ O {PA} φ) → (ip ⇒ P {SA} φ´)”, the right (claim-right) is not prior to the duty: the main action is assigned to the duty bearer (SA set).
(clxxi) in “(ip ∧ e ⇒ ◊ ∧ P {PA} dc) → (ip ⇒ O {SA} ~φ´)”, the right (power) is prior to the duty: the main action is assigned to the power holder (PA set).
- 144 For instance, Sreenivasan 2010: 467. For various conceptions of directedness, Hedahl 2013: 24, Stei (...)
- 145 Thus, “determinable” means here what Bentham meant with “assignable” (Bentham 1970: 313). Also, Har (...)
- 146 With the quantifier {one} indeterminability is only the case if just one unknown person can match a (...)
102Still within the present context, mixing correlativity with directedness seems to be heuristically pointless, at least once correlativity is accepted as universal.144 This is to say that there is no other conceptual space for “directedness” than to stick to the determinability of the correlated agent: using the duty ↔ claim-right correlativity line, a duty is directed when who the SA set agent is, is known (or, more precisely, determinable).145 So, if with the quantifier {one} the addressee is most probably determinable, with the quantifiers {some} and {all} determinability of the addressees is only the case if, for some reason, the norm at hand restrains its applicability to a specific occasion.146
(clxxii) in “(ip ⇒ O {Sarastro’s Brotherhood} hc) → (ip ⇒ P {citizens} φ´), where “hc” stands for health care, the duty is not directed: the claim-right holder is indeterminable.
(clxxiii) in “(ip ⇒ O {Sarastro’s Brotherhood} hc) → (ip ⇒ P {Pamina} φ´), the duty is directed to Pamina: the claim-right holder is determinable (and it would also be with {the Queen of the Night’s daughter}).
103As Hohfeld’s table of atomic legal positions already did, the table presented here also shows that the word “right” is used with different meanings; specifically, one of the following four: (i) a liberty; a (ii) a claim-right; (iii) a power; and (iv) an aggregate of atomic positions including at least one of the previous three. As is well known, Hohfeld’s initial purpose was, precisely, to “grasp the irreducible” by drawing the differences between those rights.147 His table provided the means to understand, for instance, that holding a liberty or a power is to hold entirely different legal positions (even though both are usually called rights). And clarifying those differences is, undeniably, a purpose that Hohfeld fully achieved.
- 148 Specifically, the variables related to: (i) the sets of addressees (which are the PA and the SA set (...)
104However, a norm-based approach to atomic legal positions seems to be able to unveil a little bit more; specifically, that to hold a right (no matter if a liberty or any other) is solely to be in a particular position given by a specific combination of normative variables. Since each one of the three atomic kinds of rights has a specific design in the structure of norms, precisely the one provided by the connection between the deontic modality and the membership to the PA or SA sets, it turns out that a right is no other than a formal “standpoint” in a norm: irrespective of what is the substantive content given to such norm, a legal right is a position resultant from a combination of variables within the norm’s structure.148
105Thus, to hold a liberty is just to be a member of the PA set in a norm that deontically modalizes the main action as permitted: in a permissive norm, anyone belonging to that set holds the right we call a “liberty”. In the same way, to be the claim-right holder immediately follows from being a member of the SA set in a norm that deontically modalizes the main action as mandatory (or forbidden): here, anyone belonging to such set holds the right we call a “claim-right”. This is also the case for legal power: anyone (a body or a person) belonging to the PA set in a constitutive permission (a permission regarding the action of producing deontic consequences) is the holder of a “power”.
(clxxiv) a PA set agent of a permissive norm is the holder of a liberty: irrespective of its content, in “(ip ⇒ P {PA} φ) → (ip ⇒ O {SA} ~φ´)” such PA set agent always holds a liberty.
(clxxv) a SA set agent of a mandatory norm (or a prohibition) is the holder of a claim-right: irrespective of its content, in “(ip ⇒ O {PA} φ) → (ip ⇒ P {SA} φ´)” such SA agent always holds a claim-right.
(clxxvi) a PA set agent of a competence norm is the holder of a power: irrespective of its content, in “(ip ⇒ ◊ ∧ P {PA} dc) → (ip ⇒ O {SA} ~φ´)” such PA agent always holds a power.
- 149 Qualifying a theory of rights as formal just for their formalization, Herrestad 1996: 6.
106A norm-based approach to atomic legal positions leads, consequently, to a completely formal conception of rights, which is even more evident when considering that the content of norms is strictly contingent: the way the different elements of a norm are filled with some content is totally dependent on the will of a normative authority.149 Therefore, and irrespective of other norms that may constrain the exercise of power, it is totally up to that authority to establish not only the main action and how it is deontically modalized, but also who belongs and does not belong to the PA and SA sets. By doing so, that authority is conferring rights regardless of the content inserted in the norm’s elements.
(clxxvii) the norm structure has to be filled by the normative authority when enacting any norm: “(ip ⇒ DM {PA} φ) → (ip ⇒ DM {SA} φ´); accordingly, such authority has: (i) to select a type of action (if it is to “produce deontic consequences”, it also gives the possibility to act); (ii) to choose how such action is deontically modalized (DM), from which follows the deontic modalization for the correlated co-action (φ´); (iii) to choose the PA set members; and (iv) to choose the SA set members.
- 150 Which has been the consolidated tradition in legal science. For instance, to Bentham, the benefit c (...)
107The understanding of rights as a mere formal combination of normative variables, sustained under the present norm-based approach to atomic legal positions, also shows that any right (no matter if a liberty or any other) is completely value-free: since it is a strictly contingent matter, a right in a legal system is not necessarily an expression of a moral quality, or an interest of the holder, or whatever might provide it a metaphysical ground.150 So, in the same way that a normative authority can confer rights “favourable” (to the holder), nothing prevents that authority (besides other norms limiting its power) from conceiving rights that are “unfavourable”. In sum, legal rights (per se) do not have any axiological rationale.
(clxxviii) when the normative authority enacts “(ip ⇒ O {Monostatos} t) → (ip ⇒ P {Pamina} φ´)”, expressed by “Pamina has the right to be tortured (t) by Monostatos”, it follows that Pamina has a very clear claim-right to be tortured by the Moor; being tortured by Monostatos is obviously “unfavorable” to Pamina, it is repugnant to the community and it does not protect any aspect of Pamina’s situation (or of any typical bearer); however, her claim-right is a claim-right as any other.
(clxxix) an example such as this cannot be confused, however, with the distinct case of a norm sentence like “Monostatos is under the duty to torture Pamina (tP)”, expressing a norm such as “(ip ⇒ O {Monostatos} tP) → (ip ⇒ P {State} φ´)” in which the claim-right holder is the State and Pamina is only the object of the main action; this second example shows, though, that the previous one refers to a norm that effectively confers an “unfavourable” claim-right (contrary to any interest whatsoever).
- 151 Kramer has explicitly exposed this when he stated that “accounting for the directionality of legal (...)
108In an imaginary legal system where the normative authority would enact norms with all the information needed to fully understand the rights given by its norms, theories of rights would be somehow useless. Such uselessness would be the result of norm sentences explicitly showing the conditions, the members of PA and SA sets of addressees, or the conjunctive or disjunctive exercise of a right. With this data, there would be no doubts about who faces the liberty holder or who holds a claim-right when only the duty bearer is known (doubts that are, actually, la raison d´être of such theories).151 In other words, there would be no room for theories of rights because no epistemic insufficiency existed as well.
- 152 On the (endless) debate, Weissinger 2019: 200, Cruft 2019: 170.
109This is so because the main purpose of those theories, while attempting to provide an explanation of rights, is to offer the data that was omitted by the normative authority in the norm sentence: theories of rights live from epistemic insufficiency and such epistemic insufficiency is what makes them continually alive. Excluding some minor details, decades of confrontation between interest and will theories have been all about their degree of explanatory power, measured by how much they answer such questions.152 Yet, the assessment of epistemic insufficiency may have some value for both theories of rights: it provides a frame for what to expect from those theories and shows how viable each one can be.
- 153 On the other hand, if the will theory is just a terminological claim, then it is pointless to discu (...)
110It seems clear that the will theory faces serious problems. The main reason being that its explanatory power is low (or even null). Assuming that a theory is an answer to a “why-question” formulated regarding some reliable data, the problems undermining the will theory reveal themselves instantly by offering answers that contradict what we already know. For instance, that a right being enforceable depends on a norm conferring enforceability, that there are unwaivable rights and, mainly, that a right is not necessarily an aggregate of atomic positions.153 And these contradictions with how the law is, as becomes visible with a norm-based approach, seem to be fatal to the will theory.
111On the other hand, the interest theory, although much more equipped to face the mentioned scenario of epistemic insufficiency, has to deal with the fact that such a scenario is, all things considered, an interpretative problem: epistemic insufficiency is given by the incompleteness of norm sentences, being strictly connected, therefore, with how normative authorities (or any agent exercising power) use language. A possible move to be taken by proponents of the interest theory is, correspondingly, to rethink the theory within the broader frame of interpretation and, in such a way, to conceive its explanatory purposes within the processes any agent carries out in order to withdraw meaningful norms from norm sentences.
- 154 Pino 2014: 200, Guastini 1994: 224.
112It must be said, though, that the interest theory faces an additional (and somehow unexpected) problem; specifically, its inconsistency with positivism (the separation thesis and the inherent assumption that, irrespective of content, norms belong to the set since they are produced under the system’s criteria of identification).154 As the previous (clxxviii) example shows, the interest theory fails to explain norms that confer claim-rights (or liberties) without serving the interest of the holder (or of any typical bearer). So, while not recognizing such rights as “rights”, the interest theory is either (i) distorting those criteria, or (ii) imposing the (moral) interest of the (typical) bearer as a criterion of validity.
—Acknowledgements.— I would like to thank my colleagues of the Lisbon Legal Theory, particularly Pedro Moniz Lopes and Jorge Silva Sampaio, for their helpful comments on a previous draft of this paper. A very special acknowledgment is due to Andrew Halpin, with whom I had wonderful conversations about many of the topics addressed in this paper. I would also like to thank two anonymous referees for their constructive remarks. Finally, I am also grateful to the Lisbon Public Law Research Centre and the Fundação para a Ciência e Tecnologia for their financial support.