CAN LEGAL THEORY BE OBJECTI VE? Jaap Hage, Uni ver si t i es of Maast r i cht and Hassel t e-mai l : j aap.hage@maast r i cht uni ver si t y.n l 1 Introduction In 1961 Hart published his most fam ous book, wit h a t it le, The Concept of Law , t hat is bot h modest 1 in cont ent and pret ent ious in it s presupposit ion. This presupposition is that it is possible to say som ething sensible about the law in general, and not only about concrete legal systems. It is a presupposit ion t hat is not only m ade in Hart ’s w ork, but in most legal t heory, because legal t heory is is int erest ed in t he nat ure of legal phenomena in general, and not part icularly in t he w ay in which these phenom ena are implemented in specific legal systems. At least the characteristics of law as such, of the basic concepts of the law , such as ‘right’, ‘obligation’, and ‘juridical act’, and of universal legal phenom ena such as legal rules and t heir mode of operat ion, would provide a comm on ground on which such a general t heory law can be erect ed. Or are even t hese phenom ena ‘coloured’ in t he sense t hat t heir nat ure depends on t he legal syst em in which t hey occur? 2 Given the diversity of the different legal traditions of t he world , the differences betw een the legal 3 families in the Western tradition , and bet ween t he legal syst em s w it hin a single family, it might seem t hat it is all diversit y in t he law . Are not t he differences so profound t hat even a neut ral 4 t erm inology by m eans of w hich t he comparison can be made is lacking? Hart ’s presupposit ion w ould t herefore not only seem pret ent ious, but also wrong: t he only general t hing t hat can be said about the law is that the law is very diverse. The same verdict would then also apply to legal theory in general insofar as it aims to tell us som et hing about t he law as such. There would be no general t hings t o say; t he only not ewort hy t hings about t he law w ould concern t he cont ent s of part icular legal syst em s. Object ive legal t heory in t he sense of legal t heory t hat can provide us wit h knowledge about t he law in general, and not merely know ledge about t he law of a part icular jurisdict ion, would be impossible . To t he ext ent t hat legal t heorist s aim t o provide us wit h such general knowledge nevert heless, t heir endeavour must of necessit y be fruit less. M oreover, if legal t heorist s nevert heless provide us wit h ‘know ledge’ about t he law w hich claims t o be object ive, t hey mislead us – probably w it hout know ing it – because t he provided knowledge m ust be coloured by t he cont ent s of a legal syst em . Does t he above argument why legal t heory cannot be object ive m ake sense? This paper hopes t o show t hat t here is cert ainly somet hing t o be adduced against it s relat ivist view and t hat legal t heory 1 HLA Hart , The Concept of Law (Oxford Clarendon Press,1961). HP Glenn, Legal Traditions of t he World , 2nd edn. (Oxford, Oxford Universit y Press, 2004). 3 K Zweigert and H Köt z, An Int roduct ion to Comparat ive Law , 3rd edn. (Oxford, Clarendon Press, 1998), 63-73; J Husa, ‘Legal Fam ilies’, in JM Smit s (ed), Elgar Encyclopedia of Comparat ive Law (Nort hampt on, Edw ard Elgar Publishing, 2006), 382-392. 4 See A Esin Örücü, ‘M et hodology of comparative law ’, in Smit s supra fn 3, 442-454; N Jansen, ‘Comparative Law and Com parative Know ledge’, in M Reim ann and R Zimm erm an (eds.), The Oxford Handbook of Comparative Law (Oxford, Oxford Universit y Press, 2006), 305-338. 2 1 can be object ive at least t o some ext ent . To t hat purpose, t wo case st udies w ill be discussed. The one deals w it h a relat ively recent development in legal logic, nam ely t he use of so-called non-m onot onic logics to analyse the application of legal rules, and it aims to illustrate the extent in which the operation of legal rules can be neutral with respect to legal systems. The second case st udy deals wit h t he neut ralit y of a cent ral legal concept , namely t he concept of compet ence, and gives an insight in how t he neut ralit y of t his concept can be m aint ained, and at what cost . Before t hese t wo case st udies w ill be m ade, however, a non-legal example will be st udied. This example, on t he issue whet her w hales are fish, illust rat es clearly how necessit y and t herew it h object ivit y can be creat ed by convent ional means. The t wo case st udies w ill t hen illust rat e m ore ext ensively how a comparable ‘object ivit y by convent ion’ can be reached in legal t heory. 2 Of whales and planets ‘ Que st ion : Are Whales Fish? Whales live in t he ocean, can st ay underwater for long periods of t im e and have st rong t ails t o propel t hem selves. So do fish. So, are w hales fish? Answ er : The short answer: w hales are not fish. Whales are m am m als, j ust like you and m e. All m am m als are endot herm ic ( com m only called warm - blooded), give birt h t o live young and nurse t heir young, breat he oxygen from air, and have hair...’5 ‘The 9th edition of Linnaeus’ masterwork of classification, the Systema Natura , said w hales w ere fish; t he 10t h edit ion, published only t w o years lat er, said t hey were not .’ 6 These t wo quot es from t he m odern source of all reliable knowledge, t he worldwide w eb, give an th indicat ion of a discussion t hat must have t aken place some cent uries ago (in bet w een t he 9 edit ion th of 1756 and t he 10 edit ion of 1758 of t he Systema Natura ?) about the proper classification of whales. Are they fish, because they look like other fish, and live in the seas, just like other fish? Or are 7 t hey not fish, because t hey differ from fish in t he f ollowing respect s : Whales m ove t heir t ails up-and- down, w hile fish m ove t heirs from side- t o- side. Whales breathe t hrough t heir blowholes, which are basically nost rils on t he t op of t heir heads. Fish t ake in oxygen from t he wat er t hrough t heir gills. Whales give bir t h t o live young. Fish lay eggs. Whales have sm oot h skin, while fish have scales. Whales are warm - blooded. Those who are convinced t hat whales are not fish should also consider t hat phylogenet ically all mamm als are fish, and that t herefore w hales are in a sense bot h mammals and fish. 8 Present day wisdom is that whales are not fish. And yet it can easily been seen that at som e m oment there must have been a discussion how to classify whales. There are both reasons to stick t o what have must been t he original classificat ion of w hales as fish, and reasons, based on acquired insight s in biological kinds and t heir development , why whales are not fish. This discussion must have led t o sharpening the criteria for w hat counts as a fish, and on the basis of these sharpened criteria it is now obvious t hat w hales and fish belong t o different kinds. 5 6 7 8 ht t p:/ / marinelife.about.com/ od/ cet aceans/ f/ arew halesfish.ht m (last consulted on M ay 17, 2011) ht t p:/ / www.robmacdougall.org/ blog/ 2008/ 12/ are-whales-fish/ (last consulted on M ay 17, 2011) ht t p:/ / marinelife.about.com/ od/ cet aceans/ f/ arew halesfish.ht m (last consulted on M ay 17, 2011) ht t p:/ / wiki.answ ers.com/ Q/ Are_w hales_classified_as_fish (last consult ed on M ay 17, 2011) A similar discussion was conduct ed m uch more recent ly, in 2006, about t he nat ure of planet s. In 2003 ast ronomers discovered a new ‘planet ’ in t he Kuiper belt , a region in our solar syst em ext ending 9 from t he orbit of Nept une t o approximat ely 55 ast ronomical unit s from t he Sun. 10 This new ‘planet ’ w as called Eris, but its discovery almost imm ediately started a discussion about the nature of planets and w het her t his ‘planet ’ could st ill be called a planet . The out come of t he discussion was t hat a new cat egory w as int roduced, ‘dwarf planet s’, and t hat bot h Eris and t he already recognised planet Plut o would from now on be cat egorised as dwarf planet s and – in t he case of Plut o – not as a planet 11 anymore. In both cases there was an initial uncertainty about the classification of objects (w hales, satellites of t he Sun), and t his uncert aint y w as ended, not by gat hering m ore inform at ion about t he disput ed object s, but by changing or sharpening t he convent ion which defined t he boundaries of a cat egory. In doing so, t he impossibilit y of obt aining cert aint y about t he st at us of whales and planet s was t urned int o cert aint y by m eans of convent ions. Obviously, t hese convent ions m ight have been framed different ly, and t hen t he cert aint y t hat whales are not fish and t hat Plut o and Eris are not planet s might have been t he cert aint y t hat t hey are fish, respect ively planet s. Does t his m ean t hat t here is no t r ue answ er t o t he quest ions w het her whales are fish and w het her Plut o and Eris are planet s? No, t here is a t rue answ er, but t his answer depends on convent ions. M oreover, t he convent ions as t hey w ere act ually creat ed w ere arbit rary. Their form ulat ions w ere informed by t he m ost recent scient ific inform at ion of t heir ages, and – what is in part icular perspicuous in t he case of t he biological convent ion – t hey st ill st and. And wit h t hem t he classification of w hales as non-fish and of Plut o and Eris as dw arf planet s st ill st and. What is t he relevancy of t his all for t he object ivit y of legal t heory? It will be argued t hat convent ions also play an import ant role in legal t heory, and t hat t he use of t hese convent ions m akes it possible t hat legal t heory is object ive. Admit t edly, t his object ivit y depends on convent ions, which might have been different . But first , t hese convent ions need not be arbit rary eit her, and second t he fact t hat objectivity is based on conventions does not subtract from the fact that it is still objectivity. 3 12 Is legal logic neutral? According to Oliver Wendell Holmes jr, the life of law has been experience, not logic. 13 As a reminder t hat legal reasoning cannot and should not be rest rict ed t o t he applicat ion of logical laws t o prem ises which are exempted from criticism , these w ords of Holmes rem ain valuable. As soon as they are misint erpret ed as st at ing t hat logic is not import ant for t he law , however, t hey become dangerous, because t hen t hey suggest t hat valid reasoning – for which logic is t he t heoret ical underpinning – does not play a cent ral role in t he law. Argument at ion and reasoning is of crucial import ance, and it even seem s that the standards for legal reasoning are the sam e in at least the modern w estern legal 9 10 11 12 13 An ast ronomical unit is about 149,597,870.7 kilomet ers (http:/ / en.w ikipedia.org/ wiki/ Ast ronomical_unit; last consult ed on M ay 17, 2011). htt p:/ / en.wikipedia.org/ w iki/ Kuiper_belt (last consult ed on M ay 17, 2011) ht t p:/ / w w w .gps.calt ech.edu/ ~m brow n/ planet lila/ (last consult ed on M ay 17, 2011) To give an illustrat ion of t his point from a complet ely different subject area: it is by convent ion t hat t he corners of a rect angle are st raight , but given t hat convention it is objectively the case that all corners of a rect angle are equal. OW Holm es jr, The Common Law (New York, Dover Publicat ions, 1991), 1. 3 systems. One m ight therefore claim that w here the law obviously differs from system to system , the st andards for legal reasoning are everyw here t he same. This claim, t hat t he st andards for legal reasoning are - wit hin t he m odern west ern world – universal, is nevert heless false. One only has t o look at t he differences bet ween t he civilian and t he com mon law t radit ion t o see t hat what count s as a st rong argument in t he one t radit ion, for inst ance t he invocat ion of a precedent , may be m uch weaker in t he ot her t radit ion. 14 It is possible, how ever, to formulate a m ore modest claim, w hich has a better chance of surviving comparative criticism, and that is the claim that at least the logic of rule application is universal. Is it not everywhere the case that legal rules have a condition part and a conclusion part, and that if the facts of a case satisfy the conditions of a legal rule, the rule attaches its conclusion as a legal consequence to this case? That it is not even t hat simple can be seen from t he following example w hich has, for illust rat ive purposes, been stripped from all the complications that w ould characterise more realistic cases. Suppose t hat a part icular jurisdict ion, f or hygienic reasons, disallows t he presence of dogs in shops which sell food. A visually handicapped person want s t o bring her guide dog int o a but chery, and t he quest ion arises whet her t his guide dog may ent er t he shop. Let us assume, somewhat unrealist ically, t hat t he local legislat or did not consider guide dogs in draft ing t he regulat ion. At least four approaches to this case are possible, w hich might briefly be characterised as the legalistic approach, t he int erpret ive approach, t he act ivist approach, and t he deviant logic approach. THE LEGALISTIC APPROACH The legalist ic approach is what Holmes probably w ant ed t o fight when he st at ed t hat t he life of law was not logic. On t his approach t he cont ent of t he law is t aken on it s face value, and t hen applied wit hout making use of t he subt le reasoning t echniques which have been developed as part s of t he jurist ’s t oolbox. The argument might t hen run as follows: The rule disallows dogs in food selling shops. A but chery is a food selling shop and a guide dog is a dog, so guide dogs are not allowed in but cheries, not in general and t herefore also not in t his part icular case. This argument sounds very ‘logical’, and m aybe for that reason legalistic reasoning has been confused with the strict application of logic. Advantages of this style of reasoning are: t hat t he st ep from t he formulat ion of t he rule in legislation t o t he cont ent of t he rule is minimal, because the content is precisely w hat the legislation says it is; t hat t he condit ions of t he rule are given an int erpret at ion which is in accordance wit h common parlance (a guide dog is obviously a dog); and that t he logic of rule application is highly similar to the logic that applies to declarative sent ences. 15 The obvious disadvantage of this legalist approach t o legal reasoning is that it apparently leaves a legal decision maker lit t le choice (alt hough som e might consider t his t o be an advant age, rat her t han a disadvant age), and t hat t his decision maker as a consequence cannot accommodat e seem ingly relevant fact ors, which are not t aken int o account in t he rule formulat ion. In our exam ple t his is 14 15 A brief overview of how t he st andards for legal reasoning vary from t he one jurisdict ion t o t he ot her can be found in J.C. Hage, ‘Legal reasoning’, in Smit s supra fn 3, 407-422. We w ill ret urn t o t his point later in t his section. reflect ed in t he fact t hat t he rule does not dist inguish bet ween dogs in general and guide dogs and t hat t he special needs of visually handicapped persons therefore seem t o be ignored. THE INTERPRETIVE APPROACH Law yers are fond of interpretation and possibly also for that reason there is so much which they call ‘interpretation’. A typical exam ple of legal int erpret at ion is w hen a t erm is given a m eaning which does not agree wit h comm on parlance, for inst ance because t his agrees wit h t he purpose of t he rule. That would be t he case if it were said t hat guide dogs are not dogs, at least not in t he sense of t he rule t hat prohibit s t he presence of dogs in food shops. This int erpret ive approach has several advant ages, namely: t hat t he st ep from t he formulat ion of t he rule in legislation t o t he cont ent of t he rule is minimal; that t he logic of rule application is highly similar to the logic that applies to declarative sent ences; and t hat t he unusual meaning assigned t o ‘dog’ makes it possible t o t reat guide dogs different from ‘normal’ dogs, t hereby t aking t he special needs of visually handicapped people int o account. The disadvant age of t his approach is t hat t he t erm ‘dogs’ in t he rule formulat ion is given a rat her unusual meaning, which creat es t he impression t hat t he rule is bended t o make it suit t he occasion. THE ACTIVIST APPROACH When rules are created by m eans of legislation, it is so natural to assum e t hat the rule has precisely the form ulation that was also used in the legislation by means it was created, that the idea that it might be different does not even arise. And yet t his is far from obvious. The legislat ion is not ident ical t o t he rule, and neit her does it cont ain t he rule. Legislat ion is a m eans of creat ing rules and undoubt edly t he form ulat ion used in t he legislat ion is an import ant fact or in det ermining which rule precisely w as created. However, it is not a priori given that t he formulation in legislation is the only fact or t hat det ermines t he cont ent of t he rule t hat was creat ed. A legal decision maker who must det erm ine t he cont ent of a rule can t ake a more or less act ivist st ance t ow ards t he formulat ion of t he rule in legislat ion. 16 The m ore act ivist t he approach, t he less authority she assigns to the phrasing of the rule in the legislative texts. In our exam ple, an activist decision maker could decide t hat t he act ual rule w hich was creat ed excludes guide dogs from it s scope of applicat ion. The ‘real’ rule would t hen be som et hing like ‘Wit h t he except ion of guide dogs which accompany visually handicapped persons, it is not allowed t hat dogs are present in shops in which food t ends t o be sold.’ This act ivist approach has t he advant ages: t hat t he condit ions of t he rule are given an int erpret at ion which is in accordance wit h common parlance (a guide dog is a dog); that t he logic of rule application is highly similar to the logic that applies to declarative sent ences; and 16 M utat is mutandis t he same can be said about rules creat ed in judicial decisions. Then t he rat io decendi plays t he role of t he rule and t he phrasing of the decision has t he role of t he legislat ive text . 5 t hat t he adapt ed formulat ion of t he rule m akes it possible t o t reat guide dogs different from ot her dogs, t hereby t aking t he special needs of visually handicapped people int o account . The disadvant age of t his approach is t hat t he rule w hich is applied and which apparent ly is t aken t o be part of t he law cannot borrow it s aut horit y anym ore – at least not in t he full degree – from t he democratically legitimated legislator. M oreover, the division of pow ers between state organs is w eakened somew hat . THE DEVIANT LOGIC APPROACH Of t he four ment ioned approaches t o legal reasoning, t he deviant logic approach is probably t he least know n to law yers. This is already an indication that am ongst law yers logic is not seen as som et hing t hat can be used t o influence t he out come of a part icular case. Logic is som et hing fixed and if one w ants a different conclusion for a legal argument, it is not the logic that can be adapted, but it is t he premises t hat can and possibly should be changed in order t o obt ain a desired out come. And yet, the imm utability of logic is not an iron cast law . In fact, lawyers often use a deviant logic and 17 more in part icular a non-m onot onic logic , for the application of legal rules, without being aw are of doing so. That is for inst ance t he case when t hey make an except ion t o a rule because applicat ion of t he rule w ould be against t he rule’s purpose. That might be a viable st rat egy in our exam ple case. Arguably, t he prohibit ion for dogs is meant for st andard cases, where guide dogs are not st andard. Therefore it would be against t he purpose of t he rule t o apply it t o a guide dog. Since guide dogs fall under t he ordinary scope of t he rule (guide dogs are dogs, aft er all), non-applicat ion of t he rule can only be realised by m aking an except ion t o t he rule. To see clearly w hat is involved in making exceptions to rules and how this differs from choosing a different rule formulat ion, it is useful t o dist inguish bet ween declarat ive sent ences and rule form ulat ions. In form ulation t here does not have t o be a difference t ween t he t wo, but nevert heless t hey fulfil very different funct ions. The declarat ive sent ence ‘Dogs are not allowed in food selling shops’ is true or false, depending on what t he fact s are, and more in part icular depending on whet her dogs are really disallowed in food selling shops. The rule ‘Dogs are not allowed in food selling shops’ is not true or false, but rather valid or invalid in a particular jurisdiction. If it is valid, it makes t hat dogs are not allowed in food selling shops, and indirect ly it also m akes t hat t he declarat ive sent ence ‘Dogs are not allowed in food selling shops’ is t rue. Traditional logic was developed to deal with declarative sentences. It deals w ith the validity of argument s and an argument is considered t o be valid if and only if t he t r ut h of it s premises guarant ees t he t rut h of it s conclusion. 18 The issue of exceptions does not play a role in a logic for declarat ive sent ences, because such sent ences do not allow except ions. A t rue sent ence w it h an ‘except ion’ would not be a t rue sent ence wit h an except ion, but would be false. Therefore it makes no sense t o deal wit h except ions in t radit ional logic, because t here are no except ions, only false sentences. 17 18 A non-monot onic logic might informally be described as a logic t hat allow s t o reason wit h except ions. A more precise charact erizat ion can be found in JC Hage, Studies in Legal Logic (Dordrecht, Springer, 2005), 732. IM Copi and C Cohen, Int roduct ion t o Logic, 13th edn. (New Jersey, Pearson, 2009), 26. A valid rule w it h an except ion does make sense however, and t hat is only possible because rules do not describe t he world but – t o some ext ent –det erm ine it s cont ent s. Except ions t o rules are cases in which a rule does not ‘work’, even t hough it should work if one only goes by t he rule condit ions. An except ion t o a rule is not an except ion clause in t he rule condit ions, but a t ype of case t o which t he rule does not apply even t hough t he rule is applicable according t o t he rule condit ions. In the law it is assum ed that such exceptions to the application of a rule are possible and this m akes t hat it is not obvious anym ore t hat t radit ional logic, which was developed wit h declarat ive sent ences without exceptions in mind, is also relevant for rule application. The legal ‘syllogism ’ which is used to model the application of a rule to the facts of a case is not automatically the same syllogism as is used t o model argument s w hich consist solely of declarat ive sent ences. In fact , it would be different it were t o allow argument s which make an except ion t o a rule w hile leaving t he rule formulat ion unalt ered. For inst ance, one m ight argue t hat t he rule is t hat dogs are not allowed in food selling shops, and t hat t his rule remains as it is, even t hough it will not be applied t o guide dogs. Then t he ‘logic’ of rule application deviates from an ordinary syllogism which does not allow exceptions. If the law allows except ions t o rules, for what ever reasons, it uses a non-m onot onic logic. Not ice, however, t hat even if t he law uses a non-m onot onic logic t hat allows except ions t o rules, it is t herew it h not given under which circumst ances such except ions should be m ade. This is st ill an open mat t er and it is not logic, but t he law w hich must det ermine in which cases t here w ill be except ions t o rules. The nonmonotonic logic only creates the possibility for the law to work w ith exceptions to rules. The advant ages of allowing except ions t o rules and t herefore of using a non-monot onic logic for rule applicat ion are: t hat t he st ep from t he formulat ion of t he rule in legislation t o t he cont ent of t he rule is minimal; t hat t he condit ions of t he rule are given an int erpret at ion which is in accordance wit h common parlance; and t hat t he non-m onot onic logic of rule applicat ion makes it possible t o t reat guide dogs different from ot her dogs, t hereby t aking t he special needs of visually handicapped people int o account . The disadvant age of using a non-monot onic logic is t hat t he seem ing simplicit y of rule applicat ion must give way to a more complex logic which allows for exceptions to rules. LESSONS TO BE LEARNED The first lesson to be learned from this case study about a rule that prima facie leads to unat tractive results in a number of cases, is that the decision how t o deal with such problem atic cases is a tradeoff between several alternatives. It is possible to accept the unattractive outcom e, f or instance in order to limit the role of legal decision m akers to applying the law ‘as it is’. It is also possible to avoid unat t ract ive out comes by giving t he rule a less t radit ional int erpret at ion, by w eakening t he connect ion bet ween t he form ulat ion of t he legislation and t he rule formulat ion, or by allowing an 7 except ion t o t he rule. Which approach 19 is taken is a m atter of the law or legal culture, and it is not a quest ion t hat can be answered by ‘neut ral’ legal t heory. The choice bet w een t hese different ‘solut ions’ for t he problem of unat t ract ive rule out comes is comparable t o t he choice of a convent ion to solve the problem of how to classify ‘fish’ or ‘planet s’. The second lesson t o be learned is t hat if a choice has been made, t he ‘rest ’ becomes object ive. This rest includes bot h what t he possibilit ies are, and w hat t he implicat ions of a choice are. For inst ance, 20 when t he four approaches t o seemingly over-inclusive rules have been ident ified and when it has been est ablished t hat t he choice bet w een t hese approaches is a m at t er of law or legal cult ure, and not of a neutral legal theory, it still seem s possible to describe the four approaches in a neutral way. In fact, the earlier part of this section precisely has made a brief attem pt t o do so. This also holds for the logic of rule application. It is a m atter of law or legal culture whether rules allows of except ions, and under w hich circumst ances except ions t o rules, if any, should be m ade. However, that relativity does not subtract from the fact that the logic of rule application is fixed, given t he choice for a part icular m odel of rules. If it is presupposed t hat rules do not allow except ions and that a rule applies if its conditions are satisfied and otherw ise not, the implications of this assumpt ion can be described object ively. 21 The sam e holds if it is presupposed t hat rules allow t he occurrence of except ions. Which of t hese t wo models of rule applicat ion is adopt ed is a m at t er of convent ion. The one convent ion may be m ore adequat e t han t he ot her, but as convent ions t hey are not true or false. M oreover, on the basis of such a convention, it is possible to conduct objective legal t heory research, which describes t he consequences of t he convent ion t hat was adopt ed. 4 Is it possible to have 22 set of neutral legal concepts? The first case st udy dealt wit h t he issue w het her legal t heory can provide us w it h a neut ral t heory about legal reasoning, and the answ er w as shaded. M any aspect s of legal reasoning are det ermined by t he law of a part icular jurisdict ion, or by a part icular legal cult ure. However, legal t heory can describe object ively w hat possible choices are, and it can also describe object ively w hat t he implications of a choice are, for instance how reasoning with rules that can have exceptions works. The second case st udy, which will be conduct ed in t his sect ion, focuses on legal concept s. Legal rules differ from one jurisdiction to another, but these rules are framed by means of legal concepts such as dut y, right , obligat ion, power, compet ence, juridical act , ownership, cont ract , license, disposit ion, crime, misdemeanour, et c. Would not it be possible t hat t hese concept , or at least a number of t hem , are neut ral wit h respect t o t he different jurisdict ions and w ould not it be a proper t ask of legal theory to analyse these concepts? 19 20 21 22 It is not necessary t hat a legal syst em makes an uncondit ional choice for one of t he ment ioned solut ions. The choice may be conditional on addit ional case fact s. That does not detract , how ever, from t he fact t hat if some choice has been made, t he implications of t hat choice become object ive. See F Schauer, Playing by the Rules (Oxford, Clarendon Press, 1991), 32. Exam ples of such a descriptions can be found in Tammelo’s and Weinberger’s w ork on law and (traditional) logic. See I Tamm elo, M odern Logic in the Service of the Law (Vienna, Springer Verlag, 1978) and O Weinberger, Recht slogik, 2nd edn. (Berlin, Duncker & Hum blot , 1989). Exam ples of such a descriptions can be found in Sart or’s and Hage’s w ork on law and non-monot onic logic. See JC Hage, Reasoning with Rules (Dordrecht, Kluw er, 1997), supra fn 17, and G Sart or, Legal Reasoning, A Cognitive approach to the Law ( Dordrecht , Springer, 2005). This sect ion report s on t he findings of a concept ual st udy about juridical act s, and in par t icular t he role of t he concept s of ‘power’ and ‘compet ence’ in t his connect ion. To what ext ent are t hese concept s influenced by t he law of a par t icular jurisdict ion and t o what ext ent are t hey neut ral and t he proper object of object ive legal t heory? JURIDICAL ACTS Juridical acts (Rechtsgeschäfte, actes juridiques) are acts, perform ed by a legal subject with t he int ent ion t o bring about legal effect s, t o which t he law at t aches t he int ended legal effect s for t he reason t hat t hey w ere int ended. 23 For a juridical act t o be definit ely valid and t o have it s int ended legal effects, usually several conditions have to be m et: 1. The act or must have int ended t o bring about t he legal effect s by means of his act . 2. Som etimes, the perform ance of the juridical act m ust satisfy certain requirements of form . 3. The int ended legal effect s should not have a ‘wrong’ cont ent (conflict wit h public order, wit h import ant demands of moralit y, or w it h mandat ory law). 4. The act or must have been allowed t o perform t his juridical act . 5. The act or should have possessed bot h t he compet ence and t he capacit y t o bring about t he int ended legal effect s by means of a juridical act of t he perform ed t ype. (This w ill be explained lat er.) If one or more of t hese condit ions have not been met , t he juridical act in quest ion will eit her not count as a juridical act at all (in extrem e cases), will be considered null and void, or will be avoidable. Som etimes, however, despite the deficiency, the juridical act w ill be considered definitely valid. This may for inst ance be t he case if t he act or lacked t he relevant int ent ion, but creat ed a just ified expect at ion t hat he had t he relevant int ent ion, or if t he performance of t he juridical act was forbidden, but avoidabilit y, not nullit y, seems t he appropriat e sanct ion. COM PETENCE By means of the phenomenon of juridical acts, the law gives legal actors the pow er 24 t o bring about int ent ional changes in t he w orld of law, t he set of fact s and t hings w hich owe t heir exist ence t o t he law. Because not everybody should be allowed t o bring about any change, t he demand of compet ence is used. If a legal actor is to bring about particular legal effects by means of a particular kind of juridical act , he should have received t he com pet ence t o do so. This demand has as it s main funct ion t o limit t he kinds of juridical act s som ebody can perform , or t he legal effect s som ebody can bring about by perform ing a juridical act of a part icular kind. 25 Let us consider some exam ples. Ordinary cit izens lack t he com pet ence t o creat e st at ut es, and at t em pt s t o do so nevertheless probably do not even count as juridical acts at all, let alone as the creation of a statute. 23 24 25 The analyses of t his section are based on JC Hage, ‘A m odel of juridical act s: part s 1 and 2 in (2011) Art ificial Int elligence and Law 19, 23-73. We w ill ret urn t o t he t erm ‘pow er’ lat er. The relat ed demand of capacit y focuses not so much on t he cont ent of t he juridical act , but on t he capabilit y of t he act or t o form a w ell-founded intent ion (w ill). 9 A municipal legislat or can creat e rules, but presumably not rules in which const it ut ional rights are violated. If this is nevertheless attem pted, the result will be legislation that is void, or avoidable. Ordinary cit izens are compet ent t o cont ract , but not t o creat e by means of a cont ract rules t hat bind ot her persons. Judges are com pet ent t o t ake binding decisions in part icular cases, but in t heir role of judge they are not competent to make last wills. A public officer has been assigned t he t ask of grant ing building permit s and t herew it h t he compet ence t o do so. She will norm ally not be compet ent t o grant parking permit s t oo. Somet imes compet ences are grant ed broadly, t o be limit ed by special rules. Typical exam ples are t he compet ences t o cont ract , and t o make rules. These compet ences are limit ed by t he dem ands t hat cont ract s can only ‘bind’ t he cont ract part ies, and t hat legislat ive powers should only be exercised for t he purpose for which t hey were given. Some ot her compet ences are limit ed from t he beginning, such as t he compet ence t o alienat e t he goods one ow ns (and in principle no ot her goods), and t he compet ence t o grant building permit s. Given its function, namely to specify the limits of what legal actors can do by means of juridical acts, it would seem obvious t hat if som e act or t ransgressed t he boundaries of his compet ence, t he result ing ‘juridical act ’ would eit her be non-exist ent ( e.g. an ordinary cit izen creat es a ‘st at ut e’) or null and void (e.g. a non-owner ‘t ransfers’ t he ow nership of t he Empire St at e Building). While t his is often the case, it is not always. For instance, in Dutch adm inistrative law , adm inistrative dispositions which were m ade ‘ult ra vires’ t end t o be avoidable, not null and void from t he beginning. The reason why t his is t he case has t o do wit h legal cert aint y. The uncert aint y w het her an administ rat ive disposition is valid is so undesirable that validity is assumed until the disposition has officially been avoided. Underst andable as t his may be, it raises t he quest ion what t his means for t he concept of compet ence. Does t he fact t hat adm inist rat ive disposit ion ult ra vires are ‘only’ avoidable m ean t hat t he administ rat ive body which made t he disposit ion was compet ent aft er all, or should we give up the idea that competence is a necessary condition for bringing about certain legal effects by means of a certain kind of juridical act? This dilemma m ay seem at first sight only to be a minor issue in Dutch law , but it has imm ediate consequences for t he cent ral issue of t his paper, namely w het her legal t heory can be object ive. The demand that a legal actor needs for every juridical act a special competence m ight qualify as a result of ‘objective’ legal theory, as an insight that holds for juridical acts in general, and not only for juridical act s as t hey happen t o be regulat ed in Dut ch law. How ever, if t his insight does not even hold for all part s of Dut ch law, we must possibly draw t he conclusion t hat it is not a general and neut ral insight from legal t heory t hat juridical act s require t he relevant compet ence. M oreover, if such an ‘obvious’ insight t urns out t o be wrong, does not t hat illust rat e t hat t he hope for object ive legal t heory must be abandoned? Dut ch law seems t o be ‘inconsist ent ’ by posing on t he one hand for every juridical act t he dem and t hat t he act or has t he compet ence t o perform t his act wit h t his cont ent , and allowing on t he ot her hand t hat som e juridical act s for w hich t he act or lacked t he necessary compet ence are init ially valid nevert heless. How should we deal wit h t his problem ? There seem t o be t w o possibilit ies. On t he one hand w e can st ick t o t he demand t hat a valid juridical act requires t he relevant compet ence. Then adm inistrative decisions ultra vires are by definition non-existent or invalid. If a particular decision is valid nevertheless, there are again tw o possibilities: either it was not ultra vires after all, or the legal effects are attached to it, not because it was a valid juridical act, but because legal certainty required these effects to be at tached to the appearance of a valid decision. On t he ot her hand we can drop t he dem and t hat valid juridical act s require t he relevant compet ence. Then t he seem ingly neut ral result of legal t heory, nam ely t hat every juridical act requires a relevant compet ence, t urns out t o be at best a charact erist ic of a part icular jurisdict ion. COM PETENCE AND POWER A concept which is closely relat ed t o t hat of compet ence is t he concept of ‘power’. In fact , t he not ions of power and compet ence are not always sharply dist inguished in comm on usage, so t he dist inct ion t hat will be m ade bet w een compet ence and pow er w ill have a slight ly st ipulat ive nat ure. To explain the distinction, it is useful to say a little about the ‘world of law ’. This w orld of law consist s of t hose fact s and t hings whose exist ence depends on t he applicat ion of legal rules. Typical exam ples of such things and facts are cour ts, property rights, legal rules themselves (at least those which were explicit ly m ade), t he fact t hat Obam a is t he president of t he USA, t he fact t hat judge J is compet ent t o decide t he cases present ed t o her, and t he fact t hat Jones owns Blackacre. Closely relat ed t o t hings and fact s w hich belong t o t he world of law are t he so-called internal legal concepts. These concept s are used for t hings and fact s in t he world of law, and t hey include t he concept s ‘owner’, ‘president ’, ‘com pet ent ’, and ‘right ’. The applicabilit y of t hese concept s depends on legal rules. If different jurisdict ions have different rules for t he applicabilit y of int ernal concept s, t he consequences is t hat t hese concept s have different scopes of applicat ion from one jurisdict ion t o another. Because the notion of competence w ill (stipulatively) be used for a special legal status which is assigned by legal rules t o legal act ors, being compet ent is such an int ernal legal concept , t he applicabilit y of which depends on t he rules of a part icular jurisdict ion. Opposed t o t he so-called int ernal legal concept s are doctrinal concepts. These concept s are not part of t he law it self and t heir applicabilit y is not defined by legal rules. A doct rinal concept is rat her a concept t hat is used in legal doct rine t o charact erise legal syst em s. A t ypical exam ple is t he concept of ‘sovereignt y’ which is t o t he aut hor’s know ledge seldom used as a concept wit hin a legal syst em , but which is frequent ly used t o charact erise legal syst em s. The same count s for t he concept s ‘human right ’ and ‘freedom of cont ract ’. It also count s, it is st ipulat ed, for t he concept of power. A person is said to have a legal pow er if he or she is capable to bring about legal effects by means of an act aimed at bringing about t hese effects. This act may be a juridical act, such as an administrative decision, or a last will. It may also be another act, such as moving from one municipality to another, t hereby changing t he am ount of m unicipal t axes t hat he m ust pay. Nat ural persons have in general t he pow er t o influence t heir t ax dut ies, and – as t his exam ple illust rat es – t his pow er does not necessarily depend on juridical act s. The presence of a legal power depends on, and is a side-effect – int ended or not – of legal rules which at t ach legal consequences t o act s which can be perform ed int ent ionally. To t he ext ent t hat t he power can be exercised by m eans of a juridical act , a legal subject will norm ally need t o com pet ence 11 and t he capacit y t o bring about t hese legal effect s by means of t hat t ype of act , but t he pow er does not coincide w it h t his compet ence or t his capacit y. Apart from t his compet ence and capacit y, t he power presupposes t he presence of legal rules w hich at t ach t he int ended legal consequences t o a juridical act. The presence of these rules has the side-effect that they can be used by a legal actor to bring about legal effect s. In a sense t hese rules creat e t he power, but t hey do not confer t he power, as a misleading expression suggest s, because w hat rules confer is a legal st at us, such as capacit y or competence. In general, pow ers are not specifically tied to the law at all. A pow er is a capability to do bring som ething about, or to reach a particular result. For instance, a speed skater may have the pow er t o skate 500 meters in less than 38 seconds, and a politician m ay have the pow er to win the elections. A good salesman may have t he pow er t o sell t his ruin, while m ost cit izens have t he power t o buy a house. This last exam ple illustrates that som e powers may be the result from a particular legal status, but that this is not necessarily the case. M oreover, powers that result from a legal status are not really different from other powers. For every power there m ust be circum stances which em pow er to do som et hing: a polit ician m ust have influence on t he elect orat e; a speed skat er must have exercised enough. In legal cases these circum stances happen to be legal facts, such as that there are rules which attach legal effects to events, and that som ebody has the competence to perform a particular kind of juridical act. Because ‘com pet ence’ is an int ernal legal concept , t he law of a part icular jurisdict ion det erm ines: whether it works with this concept; when the concept, if it exists, is applicable; what t he consequences are if t he concept is or is not applicable in a part icular case. Legal t heory can t herefore not provide a neut ral analysis of w hat t he concept of ‘compet ence’ involves in a part icular legal syst em . This does not m ean t hat legal t heory cannot say anyt hing in general about com pet ence. The reason is t hat compet ence in one jurisdict ion w ill have somet hing in comm on wit h compet ence in ot her jurisdict ions, because ot herw ise t hese different ‘compet ences’ could not all be denot ed by t he sam e t erm ‘compet ence’. However, t hese necessary similarit ies, alt hough t hey can by and large be list ed, cannot be m ore t hat approximat ions of w hat compet ence means in t he different jurisdict ions. LEGAL POWERS Wit h t he not ion of pow er it is different . Alt hough different legal jurisdict ions m ay assign different pow ers to legal actors, this has no implication for w hat a power is. In general it remains true that if som ebody act ually brought somet hing about , he must have had t he pow er t o do so. The m ain reason why t he not ion of power does not depend on t he cont ent s of t he law of a part icular jurisdict ion is t hat it is not an int ernal legal concept . The condit ions of applicabilit y of t he power concept are not regulat ed by t he law. Where t he law has influence on t he presence of a power, it has it because it can influence whet her t he applicabilit y condit ions of ‘power’ are sat isfied. As a consequence, it is possible t o say somet hing in general about pow ers, including legal powers, which is not coloured by t he det ails of specific jurisdict ions. Somebody has t he power t o bring som et hing about if it depends on t he w ill of t his person w het her she will act ually bring it about . In t he law t hings are brought about t hrough t he applicat ion of legal rules. Some rules at t ach legal effect s t o event s, independent whet her t hese effect s were int ended. For inst ance t he rule which at t aches liabilit y t o a t ort creat es t his liabilit y independent of w het her t he t ort feasor int ended t o become liable. Even this rule gives legal actors a pow er, because people can make themselves liable for dam ages by committing a tort. The m ore usual way of bringing about t hings in t he law, how ever is t hrough juridical act s. By having rules which attach legal affects to certain acts, because these acts w ere performed w ith the intent ion t o bring t hese effect s about , a legal syst em recognises juridical act s. By recognising juridical act s, a legal system grants its actors certain pow ers, and because these pow ers rest on the operation of legal rules, one might call them ‘legal pow ers’. Notice, however, that legal pow ers are related to the operat ion of legal rules in general, not only t o t he operat ion of rules w hich at t ach consequences t o t he performance of juridical act s. A legal subject will norm ally have t he power t o place himself under an obligat ion, bot h by cont ract ing and by comm it t ing a t ort . Only in t he first case, t he power depends on t he presence of a compet ence. LESSONS TO BE LEARNED The above discussion of compet ences and powers is again an illust rat ion of how and t o which ext ent legal t heory can be object ive. By dist inguishing bet w een int ernal legal concept s and doct rinal concept s, legal t heory can object ively demarcat e w hat is governed by t he law of a part icular jurisdict ion. This includes bot h t he condit ions under w hich a compet ence is assigned and what t he consequences are w hen somebody at t empt t o perform a juridical act wit hout having t he competence to do so. An analysis of the notion of ‘pow er’ is not typically a task of legal theory, because this notion is not part icularly t ied t o t he law and t here is no reason t o assum e t hat powers in t he law are different from pow ers elsew here. What legal t heory can do, however, and apparent ly in an object ive way, is t o indicat e how pow ers in t he law are creat ed as a side-effect of rules w hich at t ach legal consequences t o event s, including int ent ional act s. It can also indicat e w hat t his m eans for t he relat ion bet ween t he possibilit y t o perform juridical act s and t he power t o creat e legal effect s w hich is t he result from t he rules w hich attach legal consequences to valid juridical acts. Because the validity of legal acts often depends on t he compet ence t o perform t hem (but t his is a mat t er of t he rules of a part icular jurisdict ion), legal theory can also offer an account of how the competence to perform juridical acts relates to the pow er to bring about certain legal effects. M ore in general, we see t hat in relat ion t o juridical act s, compet ences and pow ers, legal t heory can help t o dist inguish bet ween what depends on t he cont ent s of law, and what is ‘object ive’ in t he sense of independent from t he cont ent s of law. In connect ion wit h t he lat t er, legal t heory can help t o gain t his object ive knowledge. And finally, legal t heory can also help t o spell out t he consequences of t he choices t hat were m ade by t he law of a part icular jurisdict ion. It may for inst ance point out t he consequences for t he pow ers of legal subject s t o bring about legal consequences, which follow from t he choices m ade in posit ive law about t he role of com pet ence in perform ing valid juridical act s. 13 5 Conclusion It is obvious t hat m uch t hat can be said about t he law of a part icular jurisdict ion. The quest ion may t herefore be raised whet her t here rem ains somet hing t o be said in general about t he law or about particular aspects of it. By means of the examples about whales and planets is w as illustrated that the possibility to say som ething in general about a cat egory of things, it may be necessary to m ark of t his cat egory by m eans of a convent ion which has in part a st ipulat ive nat ure. Given t his convent ion, 26 som e t hings becom e ‘ t rue by convent ion’ , but t he explicat ion of w hat has become t rue by convent ion may nevert heless lead t o new know ledge. That such new know ledge by convent ion is possible can be seen from t he case st udies about rules which seemingly lead t o unat t ract ive consequences in som e cases, and about juridical act s and t he role of com pet ences and powers in t hat connect ion. Legal t heory can lead t here t o object ive know ledge by dividing t he subject s in a part which is relat ive t o a part icular jurisdict ion (how t he law deals wit h hard cases; what t he role of compet ence is wit h regard t o juridical act s) and a part w hich is object ive in t he sense of syst em independent (t he dist inct ion bet w een four ways of dealing wit h hard cases, the logic of rules that allow for exceptions, the notion of a legal pow er and its relation to t he not ion of compet ence). M oreover, t he object ive part can be described in an object ive w ay, and by com bining t his object ive descript ion by t he convent ional choices m ade by a part icular jurisdict ion, legal theory can also describe objectively w hereto the choices of such a system lead. 26 WV Quine, ‘Trut h by Convent ion’, in WV Quine, The Ways of Paradox and Ot her Essays, Revised and Enlarged Edit ition (Cambridge, Harvard Universit y Press, 1976), 77-106.