POWERS AND COMPETENCES (draft version) Jaap Hage* Universities of Maastricht (Netherlands) and Hasselt (Belgium) E-mail: jaap.hage@maastrichtuniversity.nl Internet: www.jaaphage.nl Abstract In the jurisprudential literature, the notions of legal power and legal competence are usually not well distinguished. The present article tries to develop such a clear distinction. The existence of a legal power is described as a side-effect of legal rules that make it possible to bring about particular results. For example, Charlène has the legal power to reduce her tax obligations by moving from Belgium to Monaco. (The example is on purpose not of a juridical act.) Legal powers can be the side-effect of the existence of counts-as, fact-to-fact, and dynamic rules. A legal competence is described as a status, attributed by a legal rule, which is a necessary prerequisite for bringing about legal consequences by means of a juridical act. For example, Parliament has the competence to create statutes. Without this competence an attempt to make a statute would be invalid. The concept of a legal competence is in first instance an internal legal concept, meaning that it is a concept used in legal rules. In this respect it differs from the concept of a legal power, which is not used in legal rules, even though legal powers exist because of legal rules. The concept of a legal power is an external legal concept. If a legal power is to be exercised by means of a juridical act, but only then, the competence to do so is a necessary condition for the existence of this power. 1. Introduction O e of the e tral the es i Hart s The Concept of Law is that not all legal rules are mandatory. There are, for example, also rules that define the ways in which valid contracts or wills or marriages are made. These rules provide legal subjects with facilities for realizing their wishes, by conferring legal powers upon them to create rights and duties (Hart 2012, 27/8). Apart from contracts, wills, and marriages, which are all in the sphere of private law, Hart might just as well have mentioned bills, administrative dispositions and judicial verdicts, although the addendum that the powers can be exercised to realize the wishes of the agents is not fully applicable in these cases from public law. Hart is not very clear about the nature of the powers thus conferred, but from the examples one may conclude that the existence of these legal powers is a side-effect of rules specifying how particular legal consequences can be brought about. A legal power as Hart had in mind seems not to be some status attributed by legal rules, but rather a consequence of the existence of certain kinds of legal rules. * This article elaborates ideas that were first formulated in Hage 2013. The elaboration would not have been possible without the many discussions the author had about powers and competences with Hester van der Kaaij and Antonia Waltermann, who both discuss these notions in their PhD-theses (in preparation) about respectively juridical acts and sovereignty. Antonia Waltermann has also given useful comments on an earlier version of this article. 1 The notion of a competence may at first sight seem identical to that of a power, but when we look at the way Kelsen defines a competence, we seem to find an important difference. Kelsen explicitly points out that competences both play a role in private and in public law, be it under different names: Rechtsmacht in private law, and Zuständigkeit or Kompetenz in public law (Kelsen 1960, 152/3). Moreover, he writes that the legal order attributes (verleiht) competences to legal agents, thereby suggesting that a competence is a status that a legal agent receives through the application of some legal rule. This article does not aim at providing historically correct interpretations of the work of legal philosophical authors, and it may remain an open issue what Hart a d Kelse reall had i i d. However, their texts at first sight seem to deal with slightly different phenomena. Powers in the Hartian sense seem to be side-effects of the existence of certain legal rules, while competences in the Kelsenian sense seem to be instances of legal status that is attributed by legal rules to agents. This difference between legal powers and competences constitutes the main theme of this article. The central questions are what legal powers and competences are, and how they differ from each other. Related questions, which are dealt with in the passing, are how powers and competences relate to other basic legal notions such as legal rules, and juridical acts. Section 2 of this article deals with legal powers, and relates these powers to causal powers and to different kinds of rules. Section 3 starts with the crucial distinction between external and internal legal concepts and the argument that where the concept of a legal power is an external legal concept, the concept of a legal competence is an internal legal concept. Building on this distinction, the Section relates competences to juridical acts and discusses two ways in which an agent may receive a legal competence. Section 4, finally, summarizes the main results and specifies the relationship between legal competences and legal powers. Before continuing, it is important to eliminate a possible source of confusion. This article deals with the difference between powers and competences. Its main message is that there actually are two different notions and, correspondingly, two different kinds of phenomena. The one phenomenon has here ee alled po ers a d the other o pete es . I a tual legal usage, the ter s po er a d o pete e are ot al a s learl disti guished, a d po er a e so eti es e used for hat is meant here o pete e , a d the other a rou d. B alli g the o e phe o e o po ers a d the other o pete es , this arti le does ot lai that this is the a i hi h the ter s are actually used, or should be used. The message is that there are different phenomena, and the use of the ords po er a d o pete e to de ote the is to some extent arbitrary. 2. Legal Powers 2.1 Of powers in general Legal powers are, as we will see, powers to do something that are the result of the existence of legal rules. An agent can in general be said to have the power to perform an act of type A if and only if this agent would perform an act of type A if only he1 wanted to do so. A few examples may clarify this definition of the power to act. 1 The use of expressions that refer to a person whose gender is irrelevant is a matter of continuing controversy. I discovered a useful convention in this connection, to which I will adhere; females should use fe ale e pressio s , a d ales ale e pressio s. 2 1. Dieter has the power to open the door if he would open the door if he wanted to.2 This power only exists if the door is not locked, or if Dieter has the key. 2. Angela has the power to win the elections if she would win if she wanted to. This presupposes that her political opponents do not have the power to win, or that they can only win by making that Angela does not want to win. This example also illustrates that the power to perform some kinds of acts presupposes the existence of particular conventions, in this case the conventions that govern elections. 3. Franz does not have the power to trip over the carpet, because one can only have the power to perform intentional acts. This example illustrates the difference between the power and the ability to do something. 4. Charlène has the power to diminish her tax obligations, because she would migrate from Belgium to Monaco if she wanted to. 5. Hans has the power to make himself liable for damages. He would incur such liability if he decided to dri e his ar i to his eigh or s. 6. Gladys has the power to make her daughter the owner of Blackacre, because she is the present owner, and there is nothing that withholds her from donating the estate to her daughter if she wanted to. 2.2 Causal and rule-based powers The examples 2 and 4 - 6 illustrate rule-based powers, while example 1 illustrates a causal power. Causal powers relate to acts that are defined as bringing about a particular result.3 In the first example, Dieter can bring about the result that the door is open. He can do that because by making particular movements, sometimes involving the use of the key to the door, he can start a causal chain that ends with the door being open. Other examples of causal powers are the power to drive a car, the power to jump one meter high, and the power to travel to the moon. Some acts consist in satisfying the conditions of a rule, thereby making the rule to generate certain effects. Winning the elections is only possible because of the rules that define and govern elections. These rules form a complex set which includes rules that define which events, under what circumstances, count as an election. Counts-as rules, as these rules are nowadays usually called4, make that some events also count as another kind of events. Making a circle red counts, under suitable circumstances, as casting a vote. Therefore, the agent who has the power to make the circle red and who satisfies some legal conditions also has the power to cast a vote. In general, counts-as rules make that an agent who has the power to do one kind of thing, also has the power to do some other kind of thing. The latter power is by definition rule-based. The former power may be a causal power, but it may also be a rule-based power itself. For example, an agent who has the power to hand over car keys to somebody else, which is a causal power, also has the power to deliver the car, which is a rule-based power. Moreover if she has this rule-based power to 2 This definition is mainly meant for expository purposes. Although it captures some of the many ways in hi h the ter po er is a tuall used, it e ludes so e ases to hi h the ter ould appl , a d includes so e ases i hi h po er t pi all ould ot e used. 3 Because there are also acts which are not rule-based and do not consist in bringing about a particular result (e.g. walking), it is not the case that all powers are either causal or rule-based. The a e counts-as rules has ee popularized philosophers as, of ourse, rules of re og itio . 4 Searle 199 . The traditio al a e u der legal 3 deliver, she also has the rule-based power to transfer ownership of the car. Handing over the car keys counts, under suitable circumstances, as delivering, and delivering counts-as transferring. Examples 4 illustrates rule-based powers that exist because of fact-to-fact rules. A fact-to-fact rule attaches legal consequences to the existence of some fact. Examples of fact-to-fact rules are the rules that attach the command over the USA army to the fact of being the President of the USA, having the competence to transfer ownership to being the owner, and the existence of tax obligations to being the resident of a country. By moving from Belgium, Charlène took away residency in Belgium and with it the obligation to pay Belgian taxes, and by moving into Monte Carlo she brought about residency in Monte Carlo and with it her tax obligations to that country. Example 5 illustrates the existence of a power that is based on a dynamic rule. Dynamic rules bring about legal consequences that are attached to the occurrence of some event. Examples of such facts are being born, the adoption of a Bill, the pronunciation of a judicial verdict, the conclusion of a contract, but also torts, as in example 5. By performing some unlawful act that causes damage to somebody else, an agent incurs liability for damages. The power to perform such an unlawful act is consequently also the power to create this liability. Example 6 is a more common illustration of a power based on a dynamic rule, and it is at the same time an example of the power to create legal consequences by the performance of a juridical act. Juridical acts may be defined as acts, performed with the intention to bring about legal effects, to which the law attaches these legal effects for the very reason that they were intended.5 The power to perform a juridical act is always rule- ased, e ause so e ph si al a t - or omission - must count as the performance of the juridical act in question. The transfer of Blackacre most likely involved signing some document at the office of an official (e.g. a notary). This event counts-as the transfer of Blackacre, which in turn leads to the double effect that Gladys is not anymore the owner of Blackacre and that her daughter is the new owner. The power of Gladys to sign this document counts, assuming the appropriate background of circumstances, as the power to transfer title to Blackacre, which in turn is the power to make her daughter the new owner. 2.3 Legal powers as side-effects We have seen that powers can be based on both causal laws and on rules. For legal purposes, the po ers ased o legal rules are the ore i teresti g ategor . We a all these po ers legal po ers . We ha e also see that su h legal po ers a e ased o ou ts-as rules, on fact-to-fact rules and on dynamic rules. However, none of the rules that were used in the examples attributed a power to some agent. Moreover, none of the given examples is exceptional in this respect. Agents typically have legal powers because of the existence of particular legal rules, but not because the rules attribute these powers to them. Legal powers are in this sense side-effects of the existence of legal rules. Power-conferring rules are not power-attributing rules. However, we might draw a still bolder conclusion: powers as defined here even cannot be attributed by legal rules. The reason why that is not possible can be seen more clearly if we consider the distinction between internal and external legal concepts. 5 See Hage 2009b and Hage 2011. This definition is of the juridical act as an external legal concept. See Section 3.1. The objection that the definition is not correct given the rules of some specific legal system, for instance because it does not mention the possibility of juridical acts based on reliance, would therefore not necessarily cut ice. 4 3. Legal Competences Legal competences differ essentially from legal powers, because they instantiate internal legal concepts, where powers instantate external legal concepts. This Section starts with a brief discussion of the distinction between internal and external legal concepts. It continues by pointing out the role of competences in the performance of successful juridical acts. The Section is concluded by showing how an agent can receive the competence to create legal consequences through the performance of a juridical act. 3.1 Internal and external legal concepts6 La uilds a orld of its o , the orld of la (Hage 2007). This world contains contracts, criminal suspects, judges, parliaments, liabilities, misdemeanors, property rights, claims and permits. All these entities are the result of the application of one or more legal rules. And although they may have a material substrate – e.g. a criminal suspect will usually be a human being – their nature is immaterial. A parliament as such is untouchable, as is a contract, a building permit, and a claim. The untouchable ature of lai s as the reaso for Alf ‘oss 19 7 to state that the ord lai does ot sta d for a real thing, and that it is devoid of semantic reference. A o tolog that is less austere tha ‘oss s and that allows immaterial thi gs a gra t e iste e to lai s a d all the other e tities i the world of law. Such entities would then be instantiations of internal legal concepts. Internal legal concepts are concepts that are used in legal rules. Often they have conditions for applicability that are defined by law.7 For example, Dutch law8 contains a precise definition when somebody counts as a suspect in criminal law. This definition is important because of the legal consequences that the law attaches to being a criminal suspect. Just as important are the conditions for the existence of a valid contract, because of the legal consequences attached to the presence of such a contract. Because the conditions of applicability for internal legal concepts are defined by law, these o ditio s a differ fro o e legal s ste to a other, e e for o epts hi h are the sa e . Ger a la has, for e a ple, differe t o ditio s for the e iste e of a alid ontract than English law.9 External legal concepts are the concepts that are used in, amongst others, legal science, for describing law.10 Often legal science uses the same words that are also used in the formulation of legal rules. However, scientific concept formation is not the same thing as making law, and the purpose of creating an external legal concept is therefore different from the purpose of creating an internal concept. As a consequence, external legal concepts may have (slightly) different conditions for applicability than their internal counterparts. A book on comparative contract law may use the ter o tra t i the sa e ea i g he it des ri es Ger a la as he it des ri es E glish la , 6 The distinction between internal and external legal concepts borrows heavily from similar distinctions made in Frändberg 2009. 7 As Poscher (2009) rightly pointed out, in the end all concepts that are used in legal rules have conditions of applicability that are defined by law. However, sometimes the specific legal definitions are already available, while some other times they are still lacking. Internal legal concepts are concepts for which the legal definitions typically are already in place. 8 Art 27 of the Code for Criminal Procedure. 9 See, for instance, Smits 2014. 10 In Kelsenian terminology one might say that internal legal concepts are used in legal norms, while external legal concepts are used in legal statements (Rechtssätze). See Kelsen 1960, 73f. 5 and say for instance that German and English law have different conditions for the existence of a contract.11 Whe e take the e a ple of ‘oss paper Tû-tû, we might say that the internal concept tû-tû is defined by a set of rules that indicate when the concept is applicable and what the legal consequences of its applicability are, while the legal scientist Alf Ross claims that the external concept tû-tû is devoid of semantic reference. The concept of a legal power as analyzed above is a typical example of an external legal concept. Legal rules do not use the concept of a power (in the analyzed sense12) but powers are a phenomenon that emerges from the rules that create legal consequences. This phenomenon can then be described in jurisprudence, as it was done in the previous Section. The concept of a legal power differs in this respect fundamentally from the concept of a legal competence, which is in the first place13 an internal legal concept. 3.2 Juridical acts and legal competences There are many ways in which legal rules can provide agents with the power to bring about changes in the world of law. One of those ways is special in the sense that it involves the possibility, within certain limits, to bring about the legal consequences that the agent wants to bring about. Acts by means of which agents use this possi ilit are alled juridi al a ts . I Ger a the otio of a juridical act, a Rechtsgeschäft, is limited to private law, where the performance of a juridical act tends to be an exercise of autonomy. However, these private acts of law have close relatives in public law, for example in the shape of legislation, of administrative dispositions, and of judicial verdicts. In all of these cases we find acts that are performed with the intention to bring about, through these acts, legal consequences, while the law attaches the intended consequences to these acts for the reason that this is what the agents intended to bring about. Not everybody can bring about any legal consequence by means of an arbitrary kind of juridical act. First, not everybody can perform any kind of juridical act. Private persons as such can, for instance, typically14 not perform any kind of public law juridical act, and the other way round, public officers as such typically cannot perform private law juridical acts. Moreover, not any public officer can perform any kind of public law juridical act. Second, not everybody who can perform a particular kind of juridical act can bring about any kind of legal consequence by means of that kind of juridical acts. For example, nobody can create legal rules by transferring ownership15, and nobody can sentence somebody to incarceration by means of a contract. 11 Hage 2009a discusses some of the implications of the view that the meaning of a legal term does not coincide with the o ditio s for the ter s appli a ilit . 12 It is very well possible that the rules of some legal system use the notion of a power. This notion would then be an internal legal concept, and would not be identical to the otio of the e ter al legal o ept po er that is discussed in this article. It may very ell e used for hat i this arti le are alled o pete es . i the first pla e , e ause as this arti le illustrates the o ept of a legal o pete e a also e used i jurisprudential work and then it functions by definition as an external legal concept. 13 The ord t pi all is i luded here to allo for e eptio s to rules. Fro ignored and the ord t pi all o itted. 14 15 o o , this possibility will be Clearly it is possible to use transfer of ownership to make a set of legal rules applicable (as opposed to valid). 6 Third, even if it is in principle possible to create a particular kind of legal consequence by means of a particular kind of juridical act, not everybody who can perform that kind of juridical act can bring about any legal consequence of the appropriate kind. An obvious example is that although any private agent (with legal capacity) can transfer ownership, nobody can transfer the ownership of something which he does not own himself. Every private agent can contract, but nobody can validly contract against the public order or contra bones mores. The legislator cannot make any law he wishes because he is bound by higher legislation, including the constitution, and by treaties. Fourth, even when an agent can bring about a particular kind of legal consequence by means of a particular kind of juridical act, it may be impossible to create these consequences if they affect so e od outside the rea h of the age t. Pri ate age ts a reate o ligatio s ea s of contracts, but typically they can only bind themselves, or persons which they represent. Municipal legislators can only create rules for their own municipalities, and courts can only sentence persons within their jurisdiction. All these limitations can be captured by saying that an agent who is to bring about particular legal consequences by means of a particular kind of juridical act must have the competence to perform that kind of juridical act and to bring about those legal consequences by means of this kind of juridical act. If an agent tries to bring about certain legal consequences by means of a juridical act, but lacks the necessary competence, the act will be invalid, and will not lead to legal consequences as a juridical act. There may be circumstances, such as demands of legal certainty, under which the law attaches the intended legal consequences to an act for which the agent lacked the required competence. If that happens, the agent obviously had the legal power to bring about these consequences. However, the agent lacked the required competence, and the legal consequences were not brought about by a juridical act, but by a legally relevant attempt to perform a juridical act. 3.3 The attribution of competence Unlike powers, competences need to be attributed. The principle of legality, which applies to public law juridical acts, even demands that public law competences are attributed by written law. There are two main ways in which an agent can receive the competence to perform a particular kind of juridical acts with a particular content. Competences are often attributed by fact-to-fact rules, and attached to the presence of some legal status. We already saw the example of the rule that attaches the competence to alienate a good to being the owner of the good. Other examples are public law competences attached to being a (particular kind of) public officer, and the competence to sentence criminal suspects which is connected to the function of a judge. It is well possible that competences are o sidered as i luded i the fu tio s hi h age ts fulfill. A e a ple fro i ter atio al pu li la ould e the do tri e of i plied po ers read: i plied o pete es a ordi g to hi h intergovernmental organizations can exercise competences that are necessary for achieving their objectives, even if these competences were not attributed to them in their founding charters.16 Competences can also be attributed by dynamic rules, as the result of a juridical act. For instance by appointing somebody as a representative, one gives this person the competence to perform juridical acts that bind the person who appointed him. 16 Reparation for Injuries, Advisory Opinion, ICJ Reports 1949, 174. 7 4. Conclusions Although powers and competences are very different things, they are not always clearly distinguished in the literature, and sometimes it is not easy to determine whether an author writes about powers or about competences in the sense in which the concepts were distinguished here. In his illuminating study of legal competences, Spaak (1994, 169) writes explicitly about competence norms, whose sole function it would be to confer competence on persons. Moreover, he gives examples of what should definitely be considered as competence attributing fact-to-fact rules, and he sees a lack of competence as a reason why some juridical act is invalid (Spaak 1994, 67-73). All of this see s to i pl that Spaak uses the ter o pete e for o pete es i the se se of this article. However, he also writes that a age t ha i g a ertai o pete e should be understood , in principle, in the same way as a statement that he is irascible, intelligent or that he otherwise has so e o o e tal or ph si al a ilit Spaak 199 , 97 . This ir u s riptio of a o pete e as an ability – and not as a factor that creates the ability – strongly suggests that Spaak has in mind what was called a power in this article. Hohfeld (1920) writes that powers are correlated to liabilities to be affected by the exercise of these powers. Such liabilities clearly are not legal statuses comparable to competences, and it seems therefore that Hohfeld s use of the ter po er is for po ers as e defi ed the here. At the sa e time he writes that sending a letter that contains an offer creates a power (to conclude a contract), thereby suggesting – although admittedly the evidence is not conclusive – that the reated po er is a competence is the sense the word was used here. As said efore, it is ot the purpose of this arti le to pro ide the right i terpretatio s of legal philosophical texts, but the difficulty in discovering the intended interpretations suggests at least that the distinction between powers and competences is not always clearly made. And yet the distinction between competences and powers is clear, as is the relation between the two. A legal competence is a status, attributed by a legal rule, which is a necessary requirement to bring about legal consequences by means of a juridical act. Co pete es e ist i the orld of la , a d the concept of a legal competence is in the first place an internal legal concept. A legal power is the possibility to do something, which is the side-effect of, amongst others, the existence of one or more legal rules. The concept of a legal power is an external legal concept. When a legal power is the power to bring about results by means of a juridical act, and only then, a competence is a prerequisite for the existence of this power. Only a prerequisite, because it is well possible to have the competence to bring about legal consequences by means of a juridical act, without also having the power to do so. Somebody who cannot write, for example, does not have the legal power to conclude contracts that need to be in writing. Since the attribution of legal competences is typically meant to create the power to bring about legal consequences by means of juridical acts, such attribution is normally an aspect of the creation of a legal power, next to the creation of the required counts-as, fact-to-fact, or dynamic rules. This may have created the impression that attribution of competence and conferring a power are the same thing. Hopefully this article has made it clear that this impression is misguided. 8 References Frändberg 2009 Åke Frä d erg, A Essa o Legal Co ept For atio , in Jaap Hage and Dietmar von der Pfordten (eds.), Concepts in Law. Dordrecht: Springer 2009, 1-16. Hage 2007 JC Hage, Buildi g the World of La , Legisprudence 1 (2007), 359-379. Hage 2009a Jaap Hage, The Mea i g of Legal Status Words , i Jaap Hage a d Dietmar von der Pfordten (eds.), Concepts in Law. Dordrecht: Springer 2009, 55-66. Hage 2009b Jaap Hage, What is a Legal Tra sa tio ? i Maksymilian Del Mar and Zenon Bankowski (eds.), Law as Institutional Normative Order, Farnham: Ashgate 2009, 103-121. Hage 2011 Jaap C Hage, A model of juridical acts: part 1: The world of law , Artificial Intelligence and Law 19 (2011), 23-48. Hage 2013 Jaap Hage, 'Can Legal Theory be Objective?' in Jaakko Husa and Mark Van Hoecke (eds.), Objectivity in Law and Legal Reasoning, Oxford: Hart 2013, 23-44. Hart 2012 Herbert L.A. Hart, The Concept of Law, 3rd ed. Oxford: Oxford University Press 2012, 1st ed. 1961. Hohfeld 1920 W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning; And Other Legal Essays, New Haven: Yale University Press 1920. Kelsen 1960 Hans Kelsen, Reine Rechtslehre, 2nd ed., Wien: Franz Deuticke 1960. Poscher 2009 ‘alf Pos her, The Ha ds of Midas; Whe Co epts Tur Legal, or Deflati g the Hart-Dworkin De ate , i Jaap Hage a d Dietmar von der Pfordten (eds.), Concepts in Law. Dordrecht: Springer 2009, 99-116. Ross 1957 Alf ‘oss, Tûtû , Harvard Law Review 70, 812. Searle 1995 John R. Searle, The construction of social reality, New York: The Free Press 1995. Smits 2014 Jan M. Smits, Contract Law. A comparative introduction, Cheltenham: Edward Elgar 2014. 9 Spaak 1994 Torben Spaak, The Concept of Legal Competence. An Essay in Conceptual Analysis, Aldershot: Darthmouth 1994. 10