Encyclopedia of the Philosophy of Law and Social Philosophy

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Competence Norms, Nature of

  • Pedro Moniz LopesEmail author
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DOI: https://doi.org/10.1007/978-94-007-6730-0_223-2

Introduction

The concept of a norm of competence is central to the contemporary legal theory conceptual apparatus. It is also of paramount importance in day-to-day legal practice as a presupposition for the assessment of the legal validity of legislative, judicial, or administrative norms and decisions, as well as of contracts and promises. Norms of competence (hereinafter “NC”) have, however, been immersed amidst controversy for several years. Although there is an overlapping consensus on NC serving the purpose of conferring upon a given subject the ability, or aptitude, to change the legal positions of certain subjects (Hohfeld 1917; Lindahl 1977), theoretical disagreements persist on the nature of such norms.

Preliminary Precisions

To Hold and to Exercise Competence

It is common knowledge that “p holding competence over q” and “p exercising competence over q” are two different states of affairs. To hold competence is a relatively stable legal position; to exercise it is an occasional activity which only comes about with intent (Spaak 2003, 91). This division recalls the separation between categorical and dispositional properties (see Choi and Fara 2016).

Unlike categorical properties, dispositional properties (dispositions) denote the capacity of a certain object to react in a certain manner under certain conditions (on the relation between dispositions and NC, Guibourg 1997, 458, Beltrán 2000, 129ff.; on dispositions in general, Ryle 1949, 100ff.; Popper 1963, 154; Putnam 1987, 11ff.). This means that certain properties may be predicated to an object though they are not directly observable at any given moment. Furthermore, it is said that dispositional properties denote the capacity of an object to actively affect or passively be affected by others. For instance, sugar is soluble, but the solution of sugar will only occur under given circumstances (Beltrán 2000, 130). Likewise, one can suppose that subject p is competent, but she has not yet and may never exercise competence. Legal competence therefore seems to be an active disposition.

Note that for subject p to be competent (i.e., for her to hold competence), a norm of competence must preexist, but no action from p is required; the norm specifically concerns the subject and the disposition of being competent. Differently, for p to exercise competence, a hypothetical action is required from p; therefore, the norm(s) governing the exercise mainly concerns the hypothetical action of p.

Making subject p competent over q can only be achieved through the use of performatives such as “p is competent over q” (Searle 1969, 68; Beltrán 2000, 134). Being competent is therefore connected with norms that make it so. Under Conte’s categorization (1985, 345ff.), NC may be dubbed anankastic-constitutive norms as they establish the necessary conditions for their own object that of legal competence (see Beltrán 2000, 153; von Wright 1963, 10; Atienza and Manero 1994, 72). Quite differently, exercising competence presupposes NC but also instantiates other norms, those which prescribe if, when, or how a given exercise of competence is permitted, prohibited, or obligatory.

The Individuation of Norms of Competence

Guastini (1996, 375) discusses NC through the enumeration of norms that (i) confer powers to a given subject, (ii) regulate the procedure for the exercise thereof, (iii) circumscribe the subject matter of such powers, (iv) limit the valid exercise to a category of formal legal acts, and (v) regulate the content of the exercise of these powers. Though functionally connected, the majority of these norms are analytically distinct.

Norms indicated in (ii) establish procedural steps for the valid exercise of competence. Norms indicated in (iv) prescribe that competence over subject matter q be validly exercised by means of legislative acts, administrative regulations, etc. Lastly, norms indicated in (v) model to a certain extent the valid content of the product of exercised competence (i.e., the norms and decisions thereby created). These three types of norms presuppose – and are not to be confused with – previous NC which, in turn, entail the conjunction of the artificially divided norms indicated in (i) and (iii) (on individuation of NC, differently, Spaak 2003, 97ff.).

Legal competence necessarily connects a certain subject with a certain subject matter. This is stressed under several well-known continental public law references to the subjective and objective dimensions of competence. The distinction, albeit useful, is artificial. It makes no sense to say that “p is competent” (an elliptical statement) or that “competence is held over q.” NC necessarily entails reference to both. All modalities of NC are derived therefrom by conceiving (i) the competence holder, (ii) the domain of competence, and (iii) the exercise thereof as criteria within a combination of all logical possibilities (e.g., legal competence as exclusive, plural, alternative, specific, residual, primary, subsidiary, etc.).

Legal Competence and Performance of Valid Actslaw

A final precision should be made on the type of acts performed by the competence holders: enacting legislative statutes, creating judicial decisions or administrative acts and regulations, entering into agreements, etc. Much like moves in chess, those acts are not human actions that anyone can perform as an exercise of natural abilities (albeit the former presuppose the latter) (Hart 1961, 41 ff). There is indeed a difference between action1 “moving one’s hand and changing the position of a wooden piece on a table” and action2 “making a move for checkmate.” As discussed below, the latter is an institutional action which simply does not exist without a prior normative set that make the rules of the institution.

The types of acts performed pursuant to NC are usually labeled acts-in-the-law, actes juridiques (Ross 1968, 130), or C-acts (Spaak 2003, 91). Let us call them actslaw. One should note that actslaw are enunciations, the majority of which have an illocutionary directive force, though sometimes a declarative one (Searle 1975; Searle and Vanderveken 1985, 13–15). Therefore, legal competence is not required, for instance, in case of statements with illocutionary assertive or expressive force since the latter are not actslaw (sustaining that promises are actslaw; Ross 1968, 56). Actslaw are entangled with the realm of normativity or potentially intertwined therewith if one thinks about competence to create NC through performatives (on this potential aspect of NC, see also Alexy 1987, 155).

It was mentioned above that NC are conditions for validly bringing about changes in legal positions. On the other hand, validity is a systemic relational concept covering the membership of a given actlaw within a given legal system (Guastini 2011, 253ff.; Spaak 2003, 91–92). Therefore, an actlaw is valid if its creation was carried out in accordance with all applicable norms of the legal system (and its content conforms to, or is consistent with, such norms). Among those norms are NC, thought not as requirements to be met in the law-creating activity, rather conceived as conditions for the creation of actslaw (see “To Hold and To Exercise Competence”).

Reducible and Irreducible Theories on Norms of Competence

Several theories concerning the nature of NC exist. NC may be conceived as:
  1. (i)

    Permissory norms addressed to the competence holder

     
  2. (ii)

    Fragments of indirect obligations addressed to legal officials

     
  3. (iii)

    Definitional norms

     
  4. (iv)

    Constitutive norms of the institutional dispositional property of “being competent”

     

The first two theories are dubbed reducible as they reduce NC to norms arising out of ought statements (e.g., norms of conduct); on the necessary relation between norms and ought statements, see Austin 1832, 21; differently, Hart 1958, 604 ff; 1994, 40). The latter two are deemed irreducible as they conceive NC as a wholly different type of norms. This labeling has governed the legal parlance since Bulygin (1992, 203ff; 207ff.) definitively imported into the discussion over NC the distinction between regulative and constitutive norms (originally, Searle 1964; see also Ross 1968).

Reducible Permissory Norms

von Wright (1963, 191ff.) is the main proponent of the account of NC qua permissory norms (see also Lindahl 1977; Alchourrón and Bulygin 1971). His conclusion is drawn from the distinction between norms of the first order, the content of which are acts other than actslaw and norms of the second or higher (nth) order, the content of which are actslaw issuing or canceling the former. Under this account, the addressees of norms of higher order are themselves authorities of lower-order norms, and NC are necessarily higher-order permissory norms (von Wright 1963, 192).

Several remarks have been directed to this theory. In brief, it does not accurately account for the distinction stressed above between holding and exercising competence. von Wright is ambivalent when stating that “a higher-order permission is to the effect that a certain authority may issue norms of a certain content (…) a norm concerning the competence of a certain authority (…).” Now, it may be argued that if no status for the exercise of a legal competence (Øing) is defined by norms of a legal system, such exercise is by default permitted. This, however, is a proposition wholly uncorrelated with the proposition sustaining that NC are permissory norms. “p is permitted to Ø” is a norm that regulates an action from subject p (whether or not it be performing actslaw), not one that confers upon her the ability to perform it. This subtlety marks the difference between authorization (Dürfen, licere) and what is roughly called authority (Können, posse). On the ambivalent meaning of «power» in legal parlance (particularly in latin languages), see Caracciolo 1995, 200–204.

Being permitted to Øing equals having authorization to Øing. This is not equivalent to saying (roughly) that one has authority to Øing. Negation of competence is incompetence or disability, whereas negation of permission is prohibition (Hohfeld 1917, 710; Spaak 2003, 90). It may well be that p has authority to Øing but is not permitted under a given state of affairs to do so (Bulygin 1992, 215–216; Beltrán 2000, 69). On the other hand, if subject p is permitted to Øing, then two permissions would oddly arise, both at the level of holding and exercising competence. This theory seems unsustainable.

Fragments of Reducible Indirect Obligations Addressed to Legal Officials

A different reducible theory envisages NC as fragments of “complete” indirect sanction-imposing or duty-imposing norms addressed to legal officials. The first theory conceives “complete norms” as those that impose sanctions to be applied by legal officials in case of disobedience of actslaw created by the competence holder (Kelsen 1949, 58–64; differently, Kelsen 1979, 133ff.). It seems however to entail that competence only arises at the moment of the sanction-applying act, thus affecting the independent existence of NC (see further remarks in Raz 1970, 147ff.). The second theory does without the sanctioning aspect of the “complete norms” and focuses on conceiving NC as “directives to the courts” (Ross 1958, 32ff.). This last account has been further developed by Spaak (2003, 89ff; 1994) through the distinction of “competence norms” and norms that confer competence (NC).

“Competence norms,” within the latter conceptual apparatus, are addressed at the competence holders and enable them to bring about a certain change of legal positions by performing a certain kind of act in a certain situation. However, since according to Spaak only duty-imposing norms are genuine norms in the sense of “complete” reasons for action, “competence norms” are fragments of complete duty-imposing norms directed at legal officials (on norm individuation, see Raz `1970). For Spaak, NC are the norms that impose duties upon the latter to recognize as legally valid those changes of legal positions brought about by the competence holder (Spaak 2003, 97ff.).

This theory has also been subjected to several remarks. It seems odd to explain the aptitude of one subject to perform actslaw through the command directed at others to recognize its validity. This bypasses the absolute competence-conferring aspect of NC (and of the competence holders holding it) by focusing on the relational aspect of the impact of the exercise in duty-bound legal officials. NC are not looked at from the point of view of the ones exercising competence (Hart 1994, 41). The theory also does little to explain the state of affairs “being competent” prior to the exercise of competence, which may never come to be.

Irreducible Definitional Norms

Hart (1961, 38 ff.) sharply criticized the kelsenian account of NC. Ross also shifted his position toward the constitutive aspect of NC (Ross attempts at reconciling both accounts in Ross 1968). Both Hart and Ross draw an interesting parallel between NC and the rules of a game (Hart 1961, 41 ff.; Ross 1968, 54 ff.). Hart calls attention to the resemblance between rules of a game and, on the one hand, rules of criminal law punishing theft or murder (something which, absent such norms, would not exist) and, on the other hand, NC (power-conferring rules). The latter type of norms strikes Hart and Ross as being unable to be obeyed or disobeyed, therefore being irreducible to norms of conduct or Hartian primary rules (Ross 1968, 54). NC are structurally deprived of deontic operators (P, Ph, or O), thus rendering them immune to violation. Rather NC appear to define the ways in which contracts, wills, or marriages are made (or by which a crime is committed), as well as the conditions and limits of the validity of actslaw.

The constitutive and definitional aspect of norms was made famous by Searle (first in 1964 and then in 1969). It is of paramount importance for a game to exist that rules define what it is to be understood by it (see Bulygin 1992, 208). Under this account, regulative norms regulate a preexisting activity, the existence of which is logically independent from the rules governing it (e.g., rules of etiquette governing interpersonal behavior). Differently constitutive norms “do not merely regulate, they create or define new forms of behavior (…) the rules of football or chess (…) create the very possibility of playing such games” (Searle 1969, 33; see also Carcaterra 2014). This means that chess of football (like law) would not exist without the norms that define them as institutions (Searle 1969, 34). Conversely, if these rules are not complied with – much like if a goal is scored in offside – there is no offense or violation of the rule, but a nullity (Hart 1994, 35), i.e., there is no goal in football and there is no actlaw in law. It is thus tautological to state that if an attempt is made to exercise competence ultra vires, no actlaw has been performed (Ross 1968, 54).

It must be noted that this last assertion should be understood within the conceptual purity of legal competence and (in)validity [which, in turn, is not equivalent to legal (in)existence; Guastini 2011, 253ff.]. Naturally, it is for a given legal system to define the specific conditions of validity of actslaw, i.e., whether and to what extent invalid norms and decisions performed in noncompliance with NC are null and void or voidable yet efficacious.

The definitional theory thus purports that NC are constitutive norms providing for the logically necessary conditions for the making of moves of the “game” (Ross 1968, 53). They make it so, for instance, that the natural activity “inserting the ball within the perimeter of the other team’s goal” creates the institutional fact “scoring a goal” and the institutional result “score of one-nil” and, likewise, that the natural activity “raising one’s hand in the parliament” together with the majority of the people therein creates the institutional fact “passed legislation” and the institutional result “actlaw” (on institutional facts, Searle 1995, 27–29; 113–114).

Now, norms are either constitutive or regulative (Bulygin 1992, 213–214; differently, Searle 1969). However, nothing prevents the existence of regulative norms governing the exercise of legal competence which, in turn, logically presupposes a prior set of constitutive norms. A distinction may therefore be drawn between (i) regulative norms of natural behavior as norms that govern antecedent and logically independent behavior (natural activities), (ii) constitutive norms as norms that constitute institutional facts and behavior, and (iii) regulative norms of institutional behavior that regulate institutional behavior logically independent from these norms but presupposing previous constitutive norms (see Brinz 1873, 65).

The definitional theory also does not go without remarks. On the basis of the kelsenian distinction (Kelsen 1960, 150ff.) between Deliktsfähigkeit (the capacity to commit crimes) and Zuständigkeit (the power to create legal norms), one can note the differences between norms that create and define (i.e., constitute) the crime “murder” and norms that confer upon subject p the aptitude to perform actslaw over subject matter q. There is a difference to these situations that makes it odd to sustain – as Bulygin (1992, 215) does – that NC are simply norms that define “what is to be understood by a contract, a will, or a promise, and therefore make it possible to engage in the corresponding activities.” Moreover, by sustaining that NC also define the subject to which competence is conferred, then one should sustain that when subject p is acting ultra vires, p is not acting qua a legal authority. This is arguable and, to say the least, counterintuitive (see Beltrán 2000, 101ff.)

Irreducible Constitutive Norms of the Institutional Disposition of Being Competent; Conclusion

In the metaphor concerning the rules of the game of football, a difference should be highlighted between the constitutive norm that creates a goal and the constitutive norm that empowers the referee to decide for it. This distinction is parallel to the one dividing purely constitutive (definitional) norms, which provide for the logical conditions of institutional facts (e.g., a theft) and norms that constitute a subject on the property of being competent, thus empowering her with the normative aptitude to produce institutional results.

NC are constitutive norms uttered through the performative use of language. The sole utterance of “p is competent over q” changes the world (Searle 1975). Legally speaking, such utterance – if valid under the criteria of a given legal system – changes the institutional world of law. What precisely is this change? NC have expansive effects upon their addressees. Upon their entry into force, NC expand the abilities of the competence holder, not quantitatively but from a qualitative point of view (see Searle 1969, 34). NC confer competence to p over q by expanding p’s antecedent natural abilities to thereby constitute institutional abilities which would otherwise not exist (i.e., to affect legal positions through the performance of actslaw).

It follows that NC should be conceived as norms addressed at the competence holder herself. This account allows for NC to be looked at from the perspective of the empowered subject, in order to avoid distorting the social function of NC (Hart 1994, 41). It should be stressed, however, that this proposition is valid for pure NC of the like “p is competent over subject matter q” and not for norms providing for the exclusive competence of p. The latter are biconditionals stating the logically equivalent universal incompetence of all subjects [non p], to which they are also addressed.

It was stressed above that capacities, abilities, and aptitudes are dispositional properties. Dispositions, in turn, may differ depending upon whether they are empirical (e.g., the solution of sugar) or normative (on conventional dispositions, see Choi and Fara 2016). The latter presuppose a set of norms, while the former do not. Holding competence requires a set of valid constitutive norms to that effect. For p to be competent over q, a dispositional statement that asserts the dispositional property of “being competent” must have been uttered by a legitimate authority in a given legal system. Therefore, p is competent in legal system LS to perform a certain actlaw on subject matter q if and only if a dispositional statement including a constitutive norm of the type NC conferring such competence to p belongs to legal system LS (with slight differences, Spaak 2003, 91). Insofar NC make it possible for subject p to produce institutional results; legal competence is a normative and institutional dispositional property (Beltrán 2000, 135ff.; 137ff.).

The final structure of NC may now be addressed. It is said that by virtue of NC, if subject p performs naturalistic actions a regarding state of affairs x, then institutional result r occurs. By replacing “institutional result r” with “changing legal positions through the actlaw therewith,” “state of affairs x” with “subject matter q” as well as “naturalistic actions a” with “naturalistic actions a underlying the performance of actslaw,” one obtains: if subject p performs naturalistic actions a underlying the performance of actlaw regarding subject matter q, then legal positions are changed through the actlaw therewith.

This final account allows for the conception of NC qua necessary – yet insufficient – conditions for the validity of actslaw performed through the exercise of competence. It is something that the reducible theory of duty-imposing norms does not seem to accommodate. Additionally, it allows for the segregation of NC from within the several types of competence-connected norms referred to in Guastini (1996, 375; see 2.2.), each one a necessary condition of validity of the actlaw performed through the exercise of competence (differently, sustaining that competence is a sufficient condition for the validity of actslaw, Alchourrón and Bulygin 1971, 120ff.). As Beltrán (2000, 165) rightly puts it, “for subjects to possess the dispositional institutional property of being competent the existence of a norm of competence attributing such property is a necessary and sufficient condition. In turn, being competent is a necessary yet insufficient condition for the validity of the acts or norms created by subjects.”

Cross-References

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Authors and Affiliations

  1. 1.Assistant Professor of LawUniversidade de LisboaLisbonPortugal

Section editors and affiliations

  • Miodrag Jovanovic
    • 1
  1. 1.Department of Theory, Sociology and Philosophy of LawUniversity of Belgrade, Faculty of LawBelgradeSerbia