=Paper=
{{Paper
|id=Vol-278/paper-2
|storemode=property
|title=Against "Prohibitions" (First Round)
|pdfUrl=https://ceur-ws.org/Vol-278/paper02.pdf
|volume=Vol-278
}}
==Against "Prohibitions" (First Round)==
https://ceur-ws.org/Vol-278/paper02.pdf
Against ‘Prohibitions’ (First Round)
Luís Duarte d’Almeida*
* University of Lisbon, Portugal: luisduartealmeida@gmail.com
Abstract. The distinction between ‘conduct norms’ and ‘sanction norms’ is widely as-
sumed to be an essential tool for any correct understanding of criminal responsibility.
Conduct norms (often also called ‘primary’) are referred to with the language of ‘prohibi-
tions’, and it is normally accepted that a crime is by definition a ‘prohibited’ human be-
haviour, in the sense that it is always an infraction of a ‘conduct norm’. I mean to discuss
and criticize this rather consensual assumption. Modern criminal codes don’t usually
incorporate a catalogue of prohibitions, but this is considered to be of no consequence
when it comes to discuss whether the law prohibits those behaviours whose performance
may lead to the application of a criminal sanction: there is no question that sanction
norms may be properly read out of the special parts of our criminal codes, and from a sanc-
tion norm it is always possible to infer the correspondent prohibition. Or so the current
understanding goes. I shall first try to make some sense of this common idea, which I call
the inference thesis. I will then proceed to show why it is wrong. The inference thesis is
necessarily committed to an understanding of conduct norms as prescriptive norms ad-
dressed to citizens, and the relevant notion of a prescriptive norm has to be characterized
in some detail. Having done so, I will argue that such a prescriptive understanding of
‘conduct norms’ is incompatible with several aspects common to most modern systems of
criminal law and unquestionably essential to the concept of a crime.
Introduction
This paper addresses some aspects of the distinction between ‘conduct norms’ and
‘sanction norms’. According to the common characterization, a conduct norm imposes
on citizens a duty to omit or adopt some course of action, whereas a sanction norm
addresses the official law-applying organs, and judges in particular, prescribing them
to apply certain punitive measures against some infringer of a conduct norm. It has
now become usual to speak of conduct norms as ‘primary’ and of sanction norms as
‘secondary’.1 This terminology is certainly more fortunate, for sanction norms are
always, in a sense, norms of conduct, too — only addressed to judges, not to citizens
in general. Moreover, the distinction is not solely drawn in regard of the addressee,
and the adjectives ‘primary’ and ‘secondary’ have the further advantage of being allu-
sive to the relevant criterion: sanction norms are ‘secondary’ because the application
of a sanction presupposes that some duty has been infringed — which duty is hoc
1 Since Hans Nawiasky’s proposal (1948, 13-14, 99-105). The ‘primary’/‘secondary’ labels
are also used to draw some other distinctions, more or less similar to the one under discus-
sion, either in general legal theory (in Hart, for example) or in specific areas of law (in
international law, v.g., or in constitutional law). Bobbio explores this (in his words) ‘deep
jungle’ in (1970, 175-183).
Latin Meeting in Analytic Philosophy Genova 20-22 September 2007
CEUR-WS Proceedings ISSN 1613-0073. pp.11-32
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
sensu a ‘primary’ one.2
It is frequently assumed that this distinction is an essential tool for any correct
understanding of criminal responsibility. The infringement of a primary norm is
regarded as a necessary condition (although not a sufficient one) for a crime to have
occurred, and the criminal sanction is thought of as applying to someone who has
violated the primary norm and partly because of such a violation. Primary norms are
typically referred to with the language of ‘prohibitions’, which allows us to designate
in a positive manner the type of behaviour that ought not be adopted; and the idea
that a crime is a piece of ‘forbidden’ or ‘prohibited’ behaviour lies at the very heart of
many contemporary theories of crime and criminal responsibility. This rather consen-
sual assumption is the object of the following discussion.3
I
1. Modern criminal codes don’t usually incorporate an expressly formulated catalogue
of prohibitions: in the so-called ‘special part’ of a criminal code one normally finds a
collection of formulations according to which ‘whoever does x will be punished with
sanction s’. This, however, is considered to be of no consequence when it comes to
discuss whether the law prohibits those behaviours whose performance will lead to
the application of a sanction. For there is no question that sanction norms, obligating
judges to sanction ‘whoever does x’, may be properly reconstructed from the special
parts of our criminal codes, and from a sanction norm it is always possible to infer
the correspondent prohibitory conduct norm — or so the current understanding goes.
Some canonical quotations aptly illustrate this idea: Bentham wrote that
by implication, and that a necessary one, the punitory [law] does involve and include the
import of the simple imperative law to which it is appended;4
Alf Ross similarly maintained that
if one knows that the courts are directed by these laws to imprison whoever is guilty of
manslaughter, then, since imprisonment is a reaction of disapproval and, consequently, a
sanction, one knows that it is forbidden to commit manslaughter. This last norm is im-
plied in the first one directed to the courts; logically, therefore, it has no independent
existence. […] Primary norms, logically speaking, contain nothing not already implied i n
secondary norms, whereas the converse does not hold;5
2 The distinction of ‘primary’ and ‘secondary’ duties is the expression of a relation de-
fined between two norms according to a perspective: a norm is only primary or secondary
in relation to some other norm, and a norm imposing on a judge a duty to punish is pri-
mary in relation to a norm which happens to provide for the application of a sanction t o
judges failing to comply with the first. In view of its addressee, and taken in isolation, a
norm is neither primary nor secondary.
3 I will not be discussing whether this current theorization of crime as a ‘violation’ of a
legal prohibition is sufficient to account for the way in which the criminal law addresses,
our should address, citizens (cf. Duff 2002, 47), nor shall I be preoccupied with the differ-
ence between crimes prohibita quia mala and crimes mala quia prohibita.
4 Bentham 1970, 303; my emphasis.
5 Ross 1968, 91-2; my emphasis.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 12
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
and one may read in Kelsen’s Pure Theory that
When a social order such as the legal order prescribes some behaviour by providing that i n
the hypothesis of the opposite behaviour a sanction ought to be applied, it is possible t o
describe this situation in a single sentence affirming that in the hypothesis of a given
behaviour a given sanction ought to follow. With this, one already says that the behav-
iour which is the condition of the sanction is prohibited, and that the opposite behaviour
is prescribed. The sanction’s ought-character implies [or ‘contains’: schließt… in sich] the
prohibited-character of the behaviour which is the specific condition of the sanction, and
the prescribed-character of the opposed behaviour.6
As to the precise nature of this inference, some clarification is called for. The quoted
passages suggest that the inference is in some way a logical one, but it obviously
does not concern the logical structure of sanction norms and conduct norms.7 It rather
concerns the concept of a sanction. This is very clear, for example, in Kelsen’s texts,
although I think Kelsen has not always been read as attentively as he should have
been. In Kelsen’s promenade towards an expository reduction of all the relevant nor-
mative material of a legal order to his ‘legal propositions’ stating that if some condi-
tions obtain, a ‘sanction’ ought to be applied, the term ‘sanction’ is employed in a
particular sense which Kelsen carefully distinguishes from the punitive sense of the
word. The word ‘sanction’, Kelsen says, may be used in two senses: ‘in the wider
sense’, ‘one may extend the concept of sanction to every coercive act provided for by
the legal order’;8 in the ‘narrow sense’, it is the equivalent of penalty (‘Strafe’), en-
compassing any ‘disadvantage’ or ‘evil’ applied ‘as a consequence of a given behav-
iour’.9 For Kelsen, ‘conduct norms’ are inferred from ‘sanction norms’ understood in
this latter sense:
if the coercive act provided for by the legal order presents itself as a reaction against a
given human behaviour, such an act has the character of a sanction, and the human behav-
iour against which it is directed has the character of prohibited, contrary to the law, behav-
iour: it is an unlawful behaviour, or delict.10
But Kelsen’s thesis that the law may be exhaustively described in normative proposi-
tions ‘stating that, under determined conditions (determined, that is, by the legal
order), there ought to be applied determined acts of coercion (determined, that is, by
the legal order)’11 is a thesis that reduces to a common structure both ‘sanction
norms’ in the strict sense and norms providing for coercive acts without having any
human act or omission (but, rather, some other factual situation) as a precondition.
And however much may remain to be said about this project and about Kelsen’s
characterization of the concept of a ‘delict’ — which characterization, I believe, cannot
6 Kelsen 1960, 26; my translation and emphasis.
7 For this reason, some lines of criticism (such as the one taken by Hernández Marín 1998,
208 ff.) seem to me to miss the relevant point.
8 Kelsen 1960, 43.
9 Id., 26. There is also an intermediate concept of ‘sanction’, conceived as a reaction
against a delict whose commission by someone is not yet properly determined: an arrest i n
flagrante delicto is an example. Cf. id., 42.
10 Id., 36.
11 Id., ibid.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 13
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
eventually be made to work in the frame of his own theory —, this is sufficient to
make clear that, for Kelsen, the primary duty (which, in his terminology, is called
‘secondary’12) can only be inferred from stricto sensu sanction norms.
By paying due attention to this explicit claim of Kelsen’s, we may observe that
some very common arguments which insist on differentiating conduct norms and
sanction norms against Kelsen’s or Ross’s reductionisms are unsound, because they
miss their targets. That is the case of an argument initially advanced by Hart, but
nowadays employed by many authors:
Without recourse to the simple idea that criminal law sets up, in its rules, standards of
behaviour to encourage certain types of conduct and discourage others we cannot distin-
guish a punishment in the form of a fine from a tax on a course of conduct. This indeed i s
one grave objection to those theories of law which in the interests of simplicity or uni-
formity obscure the distinction between primary laws setting standards for behaviour and
secondary laws specifying what officials must or may do when they are broken. Such theo-
ries insist that all legal rules are ‘really’ directions to officials to exact ‘sanctions’ under
certain circumstances, e.g. if people kill.13
This argument, insofar as Hart expressly presented it as an attack on Kelsen’s reduc-
tionism, is not a good one. When contrasting a fine and a tax, Hart means to compare
the incomparable: for Kelsen, a tax is legally due if lack of voluntary payment is
made a condition of a coercive act prescribed by the legal order (which act will be the
correspondent civil execution): the legal duty to pay a tax would rather be compara-
ble, for instance, with the legal duty not to kill. This, of course, is not decisive:
Hart’s argument may be reformulated as an argument concerning the distinction be-
tween delicts and other non-delictual facts which may also be the condition of a le-
gally prescribed coercive act. But under this reformulation the argument shall have to
be dismissed (as an argument against Kelsen, that is), for it reveals that Hart is trying
to invalidate a thesis concerning the structure of ‘legal propositions’14 with reasons
that, if sound, amount only to showing that there is a theoretical need to differentiate
two sets of norms, although the content of both sets would all be reducible to a
common expository structure. But such a differentiation may already be found in
Kelsen’s works, properly characterized as a distinction internal to that structure. In
Kelsen or Ross, the thesis that in an complete exposition of the law it would be
superfluous to autonomize conduct norms is perfectly compatible with their insistent
references to the delict (or legal wrong) as contrary-to-duty behaviour, and with Kel-
sen’s ‘nomo-static’ struggle with the definition of fundamental legal concepts such as
‘delict’, ‘duty’ or ‘obligation’.
It is nonetheless true that some but not all prescribed acts of coercion are gener-
12 Cf. Kelsen 1945, 61. The distinction is absent from the second editon of the Pure Theory
of Law, but it was resumed in later texts and, notably, in the General Theory of Norms.
13 Hart 1968, 7.
14 In spite of what is sometimes maintained (cf., v.g., Raz 1970, 77ff.) I don’t think that
Kelsen’s Sollsatz is the expression of any principle or theory of norm-individuation (on
the contrary: it presupposes some theory of norm-individuation, which Kelsen does not
explicitly present). On the other hand, the widespread idea that in the Pure Theory ‘real’
legal norms are conceived as sanction norms addressed only to legal officials should be
exposed for the piece of mythology it is, and Kelsen himself had the opportunity to ex-
pressly dismiss it: cfr. Kelsen (2003) 12, fn. 11).
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 14
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
ally interpreted as punitive sanctions. The core of Hart’s reformulated argument seems
to be this: if we interpret some legally prescribed coercive acts as ‘sanctions’ (in the
strict, punitive sense), then we interpret the behaviour which is the antecedent of
sanction-prescribing norms as prohibited. In other words, the possibility of interpret-
ing a given norm as a ‘sanction norm’ (in the strict or proper sense) depends on such
a norm being conceived as a second-order norm, and depends, therefore, on the pre-
supposition of a ‘primary norm’ whose infraction instantiates the antecedent of the
‘secondary’ one. This reading gives us a plausible version of the common thesis
according to which ‘conduct norms’ are inferable from ‘sanction norms’: given the
propositions
(1) whoever does x shall be sanctioned (s.s.) in manner m
(2) x is forbidden
the inference thesis maintains that the verification, relatively to a legal order, of a
proposition like (1) implies the truth of a proposition like (2) taken as a proposition
about a ‘primary norm’, for the reason that it is considered to be analytically true, in
virtue of the concept of a sanction, that a necessary condition for an act of coercion to
count as a punitive ‘sanction’ is that it is performed because of a norm-violation.15
The inference of a ‘conduct norm’ from a ‘sanction norm’ relies on a hermeneutical or
interpretative presupposition which is considered to be necessary to the reconstruction
of sanction norms.16
2. This clarification seems to adequately reconstitute general allusions to the notion
of an ‘inference’ of ‘primary’ from ‘secondary norms’. Such reconstitution is com-
patible with expository theories which insist in reducing the totality of legal norms to
‘sanction norms’ lato sensu directly addressed to legal officials, because it does not
impede the interpretative definition, in the set C of ‘sanction norms’, of the sub-set
C’ of the penal norms in the proper sense; as it is compatible with expressly formu-
lated principles of norm-individuation which insist on the differentiated representation
of both types of norms (such as Bentham’s17). It is, moreover, a reconstitution which
aptly explains the absence of expressly formulated ‘codes of conduct’ from contempo-
rary criminal legislations, since the reconstruction of sanction norms stricto sensu
from the statutory formulations contained in the ‘special parts’ of criminal codes
imposes the recognition of the correspondent ‘conduct norm’. For the purposes of my
present discussion, I now ascribe to the common view this version of inference the-
sis.
We may now notice that (2) is a proposition about a conduct norm, not about a sanc-
tion norm. This means that the inference thesis allows that the truth (relative to a
given legal system) of a proposition like (2) be shown by means of the demonstration
that a proposition like (1) is true in the same system: if it is true, for example, that
15 My ‘because’ is merely colloquial.
16 Some theorists mistakenly suggest that the inference is not a logical one because it i s
‘dogmatic’ or ‘interpretative’, as if the hermeneutic assumptions of legal science could not
operate as premises in deductive reasoning. See, e.g., Silva Sánchez (1992) 314; Hernández
Marín (1998) 208 ff.; or Mir Puig (2004) 1.
17 Cf. Bentham (1970) 302: ‘a law confining itself to the creation of an offence, and a law
commanding a punishment to be administered in the case of a commission of such an
offense, are two distinct laws’.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 15
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
‘whoever kills someone shall be punished’, then it is also true that ‘it is prohibited to
kill’.18
And as most theorists accept (except for those willing to endorse some kind of
‘realist’ jurisprudence) that the statutory catalogue of incriminating provisions in-
cluded in our criminal codes grounds the reconstruction of norms obligating judges
to apply criminal sanctions, this explains why it is normally accepted that a crime is
by definition a ‘prohibited’ conduct, in the sense that it is always an infraction of a
conduct norm. Criminal theorists commonly agree that the law includes ‘primary
norms’ addressed to citizens, and that sentences such as ‘it is forbidden to kill’,
which are quite ordinary in the mouths of jurists and citizens alike, are taken to ex-
press necessarily true propositions if propositions such as ‘whoever kills shall be
punished’ are true. Conversely, however, the falsehood of a proposition like (2) will
imply the falsehood of the correspondent proposition like (1). This brings into our
discussion the problem of the truth-conditions of propositions like (2), which is
sometimes called, more or less felicitously, the ‘problem of existence’ of primary
norms.19 Assuming, for the moment being, that the conceptual foundations of the
inference thesis are sound, I propose to deal with this problem in the following sec-
tion.
II
3. In face of the many uses that, in the most diverse contexts, the word ‘norm’ may
receive, it may be important to stress that primary conduct norms are unanimously
thought of as prescriptions addressed to citizens,20 and propositions like ‘it is forbid-
den to kill’ are accordingly taken as propositions about prescriptive norms: their
truth, relatively to a given legal system, is in some sense dependent on the ‘existence’
in such a system of the prohibition of killing — meaning by this that for a proposi-
tion like ‘killing is prohibited’ to be true, it has to be the case that killing is prohib-
ited in that system.
Prescriptive norms, however, seem to share a number of features which are just
not present when it comes to the law. The most telling of those features is the one
requiring that the norm-giving authority has effectively succeeded in communicating
his intention to the respective addressees. If we wish to distinguish, as G. H. von
18 This is, of course, an extremely simplified manner of putting things: in most theoretical
or practical jurisprudential contexts, any useful construction of the antecedent of a sanc-
tion norm will capture a set of conditions much larger than the set of the conditions neces-
sary for the affirmation that someone as performed a ‘prohibited’ behaviour. This poses
some further problems for the inference thesis, which I will not address here.
19 In the relevant philosophical literature, there are (at least) two very distinct main topics
usually discussed under this designation: the problem of the ‘nature’ or ‘ontological
status’ of norms; and the problem of determining the truth-conditions of normative
propositions. I am now interested in the second of these problems; references to these
‘truth conditions’ in this paper should be understood in very weak sense, so as not t o
implicate any thesis concerning the ontological status of legal norms or, even, any par-
ticular philosophical conception regarding the notion of ‘truth’ in connection with nor-
mative propositions.
20 See, e.g., Haffke (1995) 133ff.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 16
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
Wright does in his well-known discussion of the ‘ontological problem of norms’,21
between the act of promulgating a prescription and the establishment of a normative
‘relationship’ between the authority and the addressee, which implies that the pre-
scription has been appropriately received by the addressee,22 the existence of a pre-
scription depends as much on the first condition as on the second. If that reception
does not take place, there exists no prescription, but only, at most, an attempted
prescription.23 Our common terminology may induce us in error, for we do talk (as I
have just done) about the act of promulgation as the act of giving a prescription, as if
a prescription had come to exist independently of its reception by someone. But we
need to distinguish, von Wright suggests, between the act of prescribing and its
result, which is the existence of a prescription in the proper sense. Much in the same
way, for example, that if I ask someone the time and I do not make myself heard, I
may perhaps be said to have put a question, although I haven’t asked anyone anything
(I have only tried to ask), so, too, when someone prescribes a given behaviour but,
for one reason or another, no ‘relationship’ obtains between the prescription-giver and
its addressee, the result of someone having been prescribed to do something didn’t
come to exist: we only have an attempt to prescribe.
That there are no prescriptions not communicated to its addressee — or (put an-
other way) that there are no unknown prescriptions — seems to me particularly easy
to grasp in the frame of an analysis of prescriptive discourse which emphasises the
pragmatic aspect of the uses of language in directing and influencing the behaviour of
some person or persons. It was not an original insight of von Wright’s, and is indeed
a locus classicus of much discussion on the nature of legal obligation;24 but his
model may well be taken on behalf of all endorsers of the same underlying idea.
Primary legal prescriptions addressed to citizens, in this sense, are not to be gen-
erally found in the law. It is sufficient to draw attention to one aspect which is rather
common to modern systems of criminal law, irrespectively of the legal ‘family’ to
which they may belong: in most (if not all) criminal codes, the so-called ‘mistake of
law’ does not (or, at least, does not in all cases) have the status of a full exemption
precluding responsibility. This irrelevance of error juris is no penal idiosyncrasy; it
may not, without infinite regress, be theoretically explained as a ‘violation’ of some
other norm imposing a duty of diligence in acquiring such information; and it is
incompatible with a prescriptive understanding of ‘primary norms’ in the sense of
‘prescriptive’ that we find in von Wright. If legal ‘prohibitions’ are to be seen as
prescriptions in this sense, then the expression ‘mistake of prohibition’ with which
sometimes the error juris is designated25 is a contraditio in adjecto (and the expres-
sion ‘knowledge of the prohibition’, redundant). And although it may very well be
21 Which he understands precisely as ‘the question of knowing what it means to say that
there is (exists) a norm to such and such effect’, and which he discusses particularly i n
regard of prescriptions: cf. von Wright (1963), 107-8.
22 Id., 117, 122. On this ‘normative relationship’, see de Lucia (1992) 53-55, or González
Lagier, (1995) 312-315.
23 Id., 124.
24 Cf., v.g., Hobbes (1994) 177. See, also, Hägerström (1953) 3, 127ss; van Loon, ‘Rules
and Commands’ (1958) 218ff.; MacCormick (1973) 109. There is a recent and quite de-
tailed discussion of this topic in Molina Fernández, (2001) 497ff.
25 A common term in German criminal law theory is, indeed, ‘Verbotsirrtum’; similar ex-
pressions are common, at least, in the Portuguese and Spanish legal vocabularies.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 17
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
that some other aspects equally common to most legal orders would bring us to the
same conclusion,26 my present argument does not need to rely upon an exhaustive
inquiry. If one adopts a notion of ‘prescription’ similar to the one discussed by von
Wright, then a legal norm commanding a judge to punish someone for the perform-
ance of some behaviour whether or not the actor knew that his behaviour was de-
scribed in the law as a condition for a sanction to apply cannot be reconstructed as a
‘secondary norm’ in the sense with which this expression was employed in the first
section of this paper.
Within this frame of analysis, an alternative might be defined: either it is possi-
ble to give an account of legal primary conduct norms capable of dispensing with
their reception as an existence condition without losing sight of their prescriptive
nature, or one would have to conclude that there are not, in our criminal law systems,
primary prescriptions addressed to citizens. No legal theorist would, of course, light-
mindedly accept the second term of the alternative. The irrelevance of error juris has
been justified in a number of ways, and it seems to be considered of no consequence
in what concerns the existence of primary prohibitions addressing citizens. Some may
want to substitute ‘knowledge’ for ‘knowledgeability’, and be satisfied with some
guarantee that criminal laws are given fair publicity; others may resort to a legal ‘fic-
tion’ or ‘presumption’ that the citizens know the ‘prescriptions’ which the law ad-
dresses them; some may still stipulate and impose on citizens a general duty to know
the law. In all this lies the idea that legal ‘prohibitions’ may well dispense with their
reception without any damage to their clearly prescriptive nature. Hart, for example,
when discussing the Austinian model of ‘orders backed by threats’, sustained that
[although] it may indeed be desirable that laws should as soon as may be after they are
made, be brought to attention of those to whom they apply […,] laws may be complete as
laws before it is done, and even if it is not done at all27
which did not in any way prevent him from simultaneously maintaining that
what is usually intended by those who speak of laws being ‘addressed’ to certain persons
is that these are the persons to whom the particular law applies, i.e. whom it requires to
behave in certain ways.28
underlining, that is, the prescriptive character of legal norms.
And, at any rate, a theorist partisan to the ‘primary norms’ thesis will immedi-
ately say that if some analysis — be it von Wright’s or anyone else’s — of the nec-
essary ‘existence conditions’ for prescriptions happens not to fit those ‘primary’ pre-
scriptions commonly talked about by jurists and citizens — well, then such an analy-
sis must evidently be discarded (or, at least and if possible, modified in order to
adjust to the analysed object): an analysis should serve its analysandum, rather than
mould it in procrustean manner.
26 In most legal systems people may be punished that acted negligently and, at least i n
what concerns the cases of ‘unconscious negligence’, the problem seems to me similar t o
the one posed by the irrelevance of error juris; the conceptual admissibility of retroactive
punitive norms, too, seems incompatible with any attempt to characterize them as stricto
sensu ‘sanction norms’. Cf. Jakobs (1972) 13 ff., and Alldridge (1990) 489.
27 Hart (1994) 22.
28 Id., ibid.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 18
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
But maybe this conclusion should not be formulated so hastily. If von Wright’s
model is not deprived of plausibility, and if it seems adequate, at least, when it
comes to explaining some kinds of prescriptions — namely, particular prescriptions,
such as those originated in commands or orders addressed to a single individual; and
if, therefore, it is simultaneously accepted that the existence of a prescription does in
some cases depend on it being ‘received’ by the addressee, and that in some other
cases (which include our legal ‘prohibitions’) no such ‘reception’ is needed, it may be
important to understand where the difference lies.
To my knowledge, the most detailed attempt to assess the relevance for legal
theory of von Wright’s analysis was developed by Alchourrón and Bulygin in two
well-known essays.29 Based on a philosophical explicitation of the necessary condi-
tions for the use of sentences such as ‘it is forbidden to kill’ by jurists and citizens
when referring to the law, Alchourrón and Bulygin come to the conclusion that von
Wright’s model should indeed be set aside, deeming it inadequate to solve the onto-
logical problem of legal prescriptions. Their line of argumentation seems to properly
reconstitute and make explicit some assumptions hidden in the jurist’s common
discourse about ‘prohibitions’; for this reason I shall now, too, take them as apt rep-
resentatives of the common ideas which they prominently discuss and endorse —
and, for that reason, as direct interlocutors.
4. In Alchourrón and Bulygin’s discussion of the problem of the ‘existence’ of norms
von Wright’s analysis is always kept in close sight; although it is expressly recog-
nized as sound for some cases,30 the two authors declare themselves prepared to admit
that it may need some ‘transformation or adaptation’ ‘in order make his elucidations
more suitable for legal discourse’.31 They are preoccupied with ‘the problem whether
and to what extent von Wright’s analysis may be regarded as an adequate reconstruc-
tion of what jurists understand by the existence of a legal norm’,32 and the discussion
focuses, in particular, on whether or not the existence of a legal norm depends on its
reception. Alchourrón and Bulygin mean to draw the conclusion that ‘legal norms are
treated as existent long before they are “received” by legal subjects’.33 Their investiga-
tion, as von Wright’s, is concerned only with prescriptions, understood as conduct
norms:
By a norm we shall understand a prescription to the effect that something ought to or may
or must not be done, i.e., a prescription issued by one or several human agents (called
norm-authorities), addressed to one or several human agents (called norm-subjects), en-
joining, prohibiting or permitting certain actions or states of affairs.34
Their argument relies on an analogy, and it is important to follow its thread in
29 Cf. Alchourrón and Bulygin (1979) and (1989) 665-693 (an autograph Spanish transla-
tion is also available: Alchourrón and Bulygin (1991) 69-102). All quotations included i n
the present paper will be from Alchourrón and Bulygin (1989 [written in 1973]).
30 Namely, for ‘direct commands and permissions (particularly regarding the subject) and
even for general norms addressed to a relatively small or at any rate easily identifiable
audience’: cf. Alchourrón and Bulygin (1989), 668.
31 Id., 665.
32 Id., 666.
33 Id., 669; similarly, Alchourrón and Bulygin (1979), cit., 31.
34 Cf. Alchourrón and Bulygin (1989) 666; (1971) 23.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 19
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
some detail.35 Alchourrón and Bulygin begin by taking under consideration the ‘de-
scriptive use of language’, and observe that ‘the most common and “natural” use of
descriptive language is to communicate something to somebody else’; they make
clear that ‘in a communication at least two persons are involved, the speaker and the
hearer’; and emphasize that the existence of a communication depends not only on the
emission of a message, but also on its reception. Nevertheless, they sustain, ‘we may
abstract from the hearer and concentrate our attention on the speaker alone’ — and we
will have ‘what could conveniently be called an “assertion”’, which is analysable in
two elements: ‘the act of asserting and the contents of this act, i.e., an actual assertion
or statement’. ‘An assertion’, they say, ‘exists even if nobody has received it’. ‘On a
still higher level of abstraction, we might even dispense with the speaker’ — in
which case ‘we are left with the contents of a possible assertion’, or (in their termi-
nology), a ‘proposition’. Communication, assertion and proposition are thus ‘three
different concepts obtained by successive degrees of abstraction’.
Such remarks set the ground for an analogy between this ‘most natural’ use of
‘descriptive language’ of ‘communicating something to somebody’ and the ‘most
natural’ use of ‘prescriptive language’ in ‘influencing other people’s behaviour’. In
order for this aim to be attained, ‘the reception of the prescription is certainly a neces-
sary condition’, and in this case they propose that we speak of a ‘norm-
communication’. We may, however, ‘abstract from the “receiving-aspect”’ and be left
with something ‘analogous to an assertion’, which is characterized as ‘the content of
an actual act of prescribing’. They call this a ‘norm-prescription’, and say that the
existence of a norm-prescription does not depend on its reception by the addressee, in
the same way that the existence of an assertion does not depend on its reception by
the intended hearer. Lastly, the ‘content of a merely possible act of prescribing’ — the
‘prescriptive counterpart of a prescription’ — is called ‘norm-lekton’. The analogy lies
in that
[e]xactly as in the case of assertion and proposition, the concepts of norm-prescription
and norm-lekton are obtained by successive abstractions from a common basis
(norm-communication).
An important aspect of this analysis and of the proposed taxonomy lies, accord-
ing to Alchourrón and Bulygin, in the fact that it performs a function of disambigua-
tion: in different circumstances, they say, the term ‘norm’ is indistinctly used to
designate any of the three identified concepts, and the task of identifying in which
level of abstraction is the discourse about norms situated may not always be an easy
one: ‘in this field there are no… terminological distinctions’ correspondent to those
which are available in the field of descriptive discourse. The distinction between
norm-communication, norm-prescription and norm-lekton, then, is helpful in dissolv-
ing the ‘misleading’ ambiguity of the term ‘norm’.
Having laid down this analogy, they proceed to ‘determine von Wrights’s expli-
candum’, i.e., ‘the intuitive notion he wants to clarify’; and the reason they think
such a determination is necessary is precisely the fact that, given the ‘three different
though related meanings of the term “norm”’, ‘there are at least three possible expli-
canda’. The established disambiguation now shows that von Wright ‘takes norm-
communication as his explicandum’.
35 For all the following quotations, cf. Alchourrón and Bulygin (1989) 666-670 (similar
passages in Alchourrón and Bulygin 1979, 23-31).
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 20
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
But jurists ‘rarely if ever use the term “norm” with the meaning of “norm-
communication” when they talk of the existence of norms. Normally they use the
term in the sense of “norm-prescription”’. This, according to Alchourrón and Buly-
gin, is easily demonstrated:
the large number of legal provisions makes it almost impossible for a legal subject t o
know them all or even those that concern him directly. But this fact does not prevent the
jurists from speaking of existing legal norms before they are ‘received’ by legal subjects.
Moreover,
a legal subject may very well be punished for not complying with a norm, e.g. for not
fulfilling a legal obligation, even if he can prove that he was not aware of its existence.
The conclusion to be drawn, then, is this: ‘legal norms are treated as existent long
before they are “received” by legal subjects’, and this ‘clearly’ shows that ‘the exis-
tence of legal norms is regarded as quite independent from the receiving aspect’. And
if ‘in legal language the term “norm” is ordinarily used in the sense of norm-
prescription’, it seems therefore reasonable ‘to take norm-prescription as the explican-
dum’ when it comes to legal norms. Accordingly, the legal norm is ‘the content of an
actual act of prescribing, whose existence begins with the promulgation’. Briefly put,
‘the performance of the act of issuing the norm (promulgation) will be the only re-
quirement for its existence’.
This analysis is a sufficiently clear and seemingly adequate reconstruction of the
assumptions which underlie the jurist’s ordinary discourse regarding ‘primary’ norms
and their existence, and that is why it was elected for the purpose of my present dis-
cussion. I will now argue that Alchourrón and Bulygin’s conclusion does not follow
from the arguments they submit.
5. Alchourrón and Bulygin’s conceptual differentiation of ‘norm-communication’,
‘norm-prescription’ and ‘norm-lekton’ is expressly offered as a distinction grounded
on levels of abstraction, or ‘successive abstractions from a common basis’.36 This
makes clear that the two objects in comparison — communicating and prescribing as
instances of two different uses of language — are connected to some precise basic
notion of what it is to ‘communicate’ or to ‘prescribe’. As for prescriptions, which is
the main topic under study, this basic notion is, as seen above, defined right from the
start. I will now call it ‘norm1’. It is worthwhile to once again reproduce the relevant
passage:
Norm1: [By a norm we shall understand] a prescription to the effect that something
ought to or may or must not be done, i.e., a prescription issued by one or sev-
eral human agents (called norm-authorities), addressed to one or several hu-
man agents (called norm-subjects), enjoining, prohibiting or permitting cer-
tain actions or states of affairs.37
36 Cf. Alchourrón and Bulygin (1989) 668.
37 Id., 666. The following clarification is made: ‘The verbal formulation (whether by means
of a sentence in the imperative mood, a deontic sentence or a sentence in the indicative) i s
immaterial; the important thing is the prescriptive use of words (or symbols)’.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 21
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
What, then, do the authors understand by ‘levels of abstraction’? The basic notion of
communication, as they say, comprises a speaker, an asserted content, and a hearer,
which is why the existence of a communication in that sense depends on the joint
verification of all three elements. In the same manner, if there is to be an analogy, the
basic notion of norm1 requires the joint verification of an act of prescribing with a
given content and its effective reception by the addressee. This discrimination of
elements (whose soundness or usefulness I don’t intend to discuss) is an analysis of
both cases of discourse: it is an analytical decomposition of the basic notion of com-
munication and prescription in a set of necessary conditions. In other words, each of
those elements is as a necessary condition for the ‘existence’ of the analysandum.
Let us take the descriptive side of their analogy. It is fairly clear that in such an
analysis of communication it is possible to ‘abstract’ from the hearer and focus the
attention in the act of asserting, in the same manner as it is equally possible to ‘ab-
stract’ from the speaker and separately study the asserted proposition. But the word
‘abstraction’, here, does not designate any mode or process of concept-formation; it
rather refers to the possibility of disregarding some of the elements identified by
analysis of the basic notion, in order to take each one into isolated consideration as an
object of study. The concept of ‘assertion’, for example, may be discussed or analysed
independently (i.e., ‘abstracting from’) the other elements on which a communication
always depends; but the concept of an assertion does not include in its characteristics,
or in its definition, the property of being an element of a communication. This is
hardly surprising: as is the case with any analysis, the concepts correspondent to each
one of the elements in which an analysandum is decomposable by analysis may des-
ignate objects whose ‘existence conditions’ are quite autonomous from the existence
of the analysandum; as Alchourrón and Bulygin themselves affirm, an actual asser-
tion may exist even if nobody happens to hear it. Put another way: the concept of an
assertion is not the result of a manoeuvre of ‘abstracting’ certain elements from a
communication. With their discrimination of elements, therefore, the two authors are
not really defining ‘higher’ or ‘lower’ ‘levels of abstraction’, for the discourse about
one of those elements is as ‘high’ or as ‘low’ as the discourse about another.
So even if someone’s philosophical interest for the concept of an assertion may
happen to originate from the fact that in an analysis of the basic notion of communi-
cation the existence of an assertion has been given the status of a necessary condition
for a communication to exist, the existence of an assertion, qua assertion, is inde-
pendent of the existence of a communication. And this platitude is absolutely irrele-
vant from the perspective of an analysis of ‘descriptive discourse’, for the existence of
an assertion is a necessary condition for the existence of a communication: one should
not lose sight of the fact that each of those elements was arrived at by an analysis of
the basic notion of communication — and that, therefore, each of them counts as a
necessary (although not a sufficient) condition for the ‘existence’ of a communication.
In short: the ‘existence’ of a communication implies the ‘existence’ of an assertion;
but the reverse is not true.
So what we get with the proposed discrimination of elements is, in its proper
sense, an analysis. For the basic notion of norm1 (which is the notion of ‘norm’ the
authors take, from the start, as the subject of their investigation), and according to the
analysis Alchourrón and Bulygin propose, the ‘existence’ of a prescription depends on
the joint existence of the identified elements: (a) the promulgation of a prescription
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 22
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
with (b) a given content and (c) its reception by the addressee(s).38 We thus have:
Norm1 = (a) + (b) + (c)
We may now characterize in a better way the ambiguity Alchourrón and Bulygin
ascribe to the term ‘norm’: depending on context, they say, ‘norm’ may be employed
either to designate solely actual acts of promulgation with a given content (i.e., (a) +
(b)), or even to designate solely the prescriptive counterpart of propositions (i.e., (b)).
It is by now clear that the two authors are not drawing our attention to different con-
ceptions as to what a norm1 may be: they are rather talking about different objects,
which have been identified by analysis of the basic notion of norm1, and to each of
which the same name (‘norm’) may, in some context, be attributed. It is therefore
possible to differentiate:
Norm1 = (a) + (b) + (c)
Norm2 = (a) + (b)
Norm3 = (b)
And as they conveniently supplement this differentiation with terminological dis-
tinctions, stipulating different names for each of the identified objects, the following
equivalence is obtained:
Norm1 = (a) + (b) + (c) = norm-communication
Norm2 = (a) + (b) = norm-prescription
Norm3 = (b) = norm-lekton
This disambiguation is, of course, of great relevance when it comes to solve the
problem under discussion — which conditions make true an affirmation that a norm
exists? — for it makes clear, in face of the fact that the term ‘norm’ may, according to
context, be employed in any of the identified senses, that:
(1) ‘There is (exists) a norm1’ is true iff (a) + (b) + (c) exist
(2) ‘There is (exists) a norm2’ is true iff (a) + (b) exist
(3) ‘There is (exists) a norm3’ is true iff (b) exists39
If in the mouths of jurists, as Alchourrón and Bulygin say, the truth of a propo-
sition about the existence of a ‘norm’ depends only on the joint verification of condi-
tions (a) and (b) (an act of promulgation with certain content), we may observe that
such a proposition is true if ‘norm’ is used in the sense of norm2, but false if it is
38 It may be noted that, in this respect, no disagreement exists between the Argentine
authors and von Wright, whose investigation was also an analysis of the existence-
conditions of prescriptive norms, which conditions he then submitted to separate charac-
terization. Such an ‘abstraction’, in this sense, was already present in von Wright.
39 Proposition (3) is, of course, highly problematic. Alchourrón and Bulygin make clear, i n
a further section, that in the same way that ‘we do not speak of the existence of proposi-
tions (except in the sense of truth)’ and that ‘on the other hand, assertions can exist’, so,
too, ‘existence is a property of norm-prescriptions’, but not of ‘norm-lekta’. Cf. cit. (1989)
677.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 23
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
used in the sense of norm1. This shows, according to the two authors, that jurists use
‘norm’ in the sense of norm2 — i.e., in the sense of ‘norm-prescription’.
All the necessary tools are now displayed which make it possible to evaluate the
conclusion that Alchourrón and Bulygin mean to derive from this analysis — and to
see why that conclusion does not follow from the premises laid down. Their answer
to the problem of determining the conditions of an assertion that a norm exists is
this:
A [legal] norm is the content of an actual act of prescribing, whose existence begins with
the promulgation. The performance of the act of issuing the norm (promulgation) will be
the only requirement for its existence.40
But it is only natural to ask in which sense is the term ‘norm’ being used in this
answer. The reply to this question is far from being evident. It may at first sight seem
that, in their conclusion, the term ‘norm’ is used in the sense of ‘norm2’, given that
the two authors expressly affirm that ‘in legal language the term ‘norm’ is ordinarily
used in the sense of norm-prescription’.41 But this hypothesis has to face some obsta-
cles which deprive it of all plausibility. First, if the authors are using ‘norm’ in the
sense of norm2 their answer is trivially tautological, for, as we have seen, ‘norm-
prescription’ is nothing but the name stipulated by them to designate the existence of
an act of promulgation with a given content. Secondly, one should recall that Al-
chourrón and Bulygin mean to criticize von Wright by showing that his analysis of
the ‘ontological problem of norms’ is inadequate when it comes to the explanation of
legal norms; but if in their conclusion ‘norm’ is being applied in the sense of
‘norm2’, there is no reason why von Wright would not find himself in complete ac-
cord with the resulting conclusion, which at no point poses any threat on his analy-
ses; for in that case Alchourrón and Bulygin would only have shown that jurists call
‘norm’ to the object von Wright calls ‘promulgation’, and the three would happily
agree as to the set of necessary conditions for the ‘existence’ of that object to which
they would only be giving different names.42 Thirdly, if ‘norm’ is used in the sense
of ‘norm2’, that conclusion could easily be arrived at without any of the analytical
apparatus put forward by Alchourrón and Bulygin. And fourthly and perhaps more
importantly, they would have to recognise that that object which jurists call ‘norm’ is
not the object which they themselves took as their analysandum since the very begin-
ning of their investigation, which was the basic notion of ‘norm-communication’,
consistently referred to in their text as a ‘prescription’. They would have to recognize,
that is, that legal ‘norms’ are not prescriptions in the sense (or basic notion) which
they gave to the term and which grounded the entire analysis. This result, then,
would frontally contradict the very assumption from which they depart: the assump-
tion that legal ‘norms’ are prescriptions.
It would then seem that, in their conclusion, the term ‘norm’ is used in the sense
of norm1. The plausibility of this hypothesis follows precisely from the fact that they
were set out, from the beginning, to discuss the problem of legal prescriptions taking
a notion of ‘norm’ equivalent to norm1 as the object of their analysis. But in this
case the conclusion is evidently false, and, in defending it, Alchourrón and Bulygin
commit a fallacy of equivocation — falling victim, perhaps, to the very ambiguity of
40 Id., 669.
41 Id., ibid.
42 Cf., incidentally, von Wright (1989) 875-6.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 24
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
‘norm’ which they themselves had previously denounced.43 The fallacy is quite visi-
ble in the following passage:
In legal language the term ‘norm’ is ordinarily used in the sense of norm-
prescription. It seems reasonable, therefore, to take norm-prescription as the explican-
dum. Accordingly, a norm is the content of an actual act of prescribing, whose exis-
tence begins with the promulgation.44
The third sentence is not ‘accordingly’ related to the first two. The fact that ju-
rists may call ‘norm’ to a part of the conditions in which the notion of ‘norm1’ was
analysed does not allow that the object jurists call ‘norm’ is considered equivalent to
the object called ‘norm1’. The sets of conditions on which the existence of ‘norms2’
and ‘norm1’ depends are not equivalent, and the truth of a sentence about the existence
of a ‘norm1’ may not be inferred from the truth of a sentence about the existence of a
‘norm2’.
6. The very possibility of debating and contrasting different thesis on the ‘ontological
problem’ of norms — as well as the contraposition of several conceptions regarding
the question of what norms are, which is a different issue — depends on the identity
of the subject under discussion. If ‘norm’ is an ambiguous term, the discussion pre-
supposes its disambiguation; but disambiguation does not solve the ‘ontological
problem’. Alchourrón and Bulygin, with their attempt to dissolve the ambiguity of
‘norm’, identify three different objects, not three different thesis concerning the ‘onto-
logical problem’ of norms. Each one of those objects it may or may not be said to in
some sense exist under certain circumstances, and in relation to each one a distinct
‘ontological problem’ may emerge. Alchourrón and Bulygin’s analysis is nothing
more than an exercise in disambiguation — and not a discussion of the problem of
the ‘existence’ of prescriptions, nor a contraposition of two distinct thesis on the
‘ontological problem’ of norms. If the result of their analysis is, after all, that von
Wright and the jurists call different things a ‘norm’, the comparison should have been
made between the objects of both discourses — or, rather, between the ‘existence
conditions’ of the object jurists call ‘norm’, on the one hand, and, on the other, the
‘existence conditions’ of von Wright’s object of discussion. But the philosophical
interest of such a comparison seems to be null: there is nothing extravagant about the
fact that propositions about different objects may happen to have different truth-
conditions.
What, I believe, explains why Alchourrón and Bulygin have set themselves to
draw this comparison is the fact that they have based their exercise on two assump-
tions which are jointly incompatible. One is the assumption that there is no apparent
reason to deny, in general, the soundness of von Wrights’ analysis of prescriptive
discourse, for, as they expressly recognize, such analyses appear to be correct for
direct commands and general norms addressed to small audiences;45 and the other is
the assumption that that those objects referred by jurists when talking about primary
legal ‘norms’ which dispense ‘reception’ are prescriptions in the very same sense. The
43 Their proposed terminology was already something of a linguisticentrance-door for the
confusions they meant to have dissolved by analysis: instead of talking about communi-
cation and prescription, they choose the expressions ‘norm-communication’ and ‘norm-
prescription’.
44 Cf. Alchourrón and Bulygin (1989) 669.
45 Cf. fn. 30 above.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 25
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
first one is quite sound, but the second is clearly mistaken: and it is this assumption
which grounds, I believe, the current talk about ‘primary conduct norms’. The mis-
take, obviously, does not lie in its contrariness to von Wright’s analyses, for these
may very well be more or less discussable, and in need of more or less reconstruction
or modification. Von Wright was here invested, as mentioned, in the role of represen-
tative of a thesis much propagated and often made explicit in most analyses of the so-
called ‘prescriptive (or directive) use’ of language: the thesis that there are no pre-
scriptions which have not been properly communicated or received. It is certainly
true, as already mentioned, that we normally refer to the act of promulgation as an act
of ‘prescribing’ or of ‘giving a prescription’, but such an act may not be confused
with its contingent result — the existence of the prescription. Prescriptions, ex defini-
tio, may be obeyed of infringed; but a non-received act of ‘prescribing’ may not be
obeyed nor violated, nor may it be taken as a guide or standard for conduct. And
likewise have Alchourrón and Bulygin been taken, in this paper, on behalf of many
other authors who, in the field of general jurisprudence or in that of criminal theory,
commonly agree in assigning to ‘primary norms’ the nature of prescriptions; the
Argentine authors offer what is perhaps the most articulate and clear philosophical
attempt to argue for a thesis which often remains unstated in much of the work of
legal scientists. Whatever they may be, legal ‘primary norms’ are not prescriptions;
the reconstruction, from the available legal material, of primary prescriptions ad-
dressed to citizens is impossible.
The widespread acceptance of the contrary idea stems, perhaps, from the notori-
ous fact that jurists and citizens alike indeed talk about the ‘prohibitions’ and ‘duties’
which the law generally ‘imposes’ on them: anyone would say, for example, that it is
true that in Portuguese or English law ‘killing is prohibited’. This fact, nevertheless,
should not — at least, not without the minimum elementary cautions46 — be taken
as a reason for sustaining that the law comprises primary prescriptions addressed to
legal subjects. One may not simply put forward an analysis of the truth-conditions of
propositions about, v.g., some object named ‘x’ starting from the assumption that
those propositions are in fact about some object x, for the term ‘x’ may indeed be
ambiguous, and any ambiguity must be expunged as a necessary precondition to any
analysis. Ambiguities are not always evident, of course; but if good reasons exist for
one to suspect that an ambiguity may affect a given term, it will be convenient to
address it. And I believe that there are some good reasons why we should suspect that
the expressions which jurists employ when speaking about ‘primary norms’ may
suffer from a characteristic ambiguity — and, thus, some good reasons for an analysis
of the truth-conditions of sentences such as ‘it is forbidden to kill’ not to be carried
out based on the assumption that such sentences are about a predetermined object
(about prescriptions proper). It is normally said that the norm commanding judges to
punish murder, for example, is a norm sanctioning the infraction of the ‘primary
norm’ according to which ‘it is forbidden to kill’: we thus use an impersonal deontic
statement to refer to the so-called ‘primary norm’; but it has already been pointed out
in some literature that such impersonal deontic statements may be understood in
either one of two ways47: (a) as propositions about general prescriptions, or (b) as
46 Cautions that Hart, for example, tends not to adopt:
this sort of argument is quite typi-
cal of much of his passages. In what concerns my present topic, and for an example, cf. Hart
(1994) 27-8.
47 See, v.g., Hilpinen (1997) 335.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 26
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
‘evaluative’ propositions disconnected from any discourse regarding prescriptions.
This ambiguity is highly relevant for my present topic. If taken in acception (a)
— if taken, that is, as propositions about general prescriptions and, therefore, about
what a class of subjects ought to do —, propositions like ‘it is forbidden to kill’
always lend themselves to an analytical breakdown in a conjunction of singular pre-
scriptions, and they are only capable of being true relatively to a universe of address-
ees in the proper sense.48 In this case, the impersonal formulation (in which one does
indeed ‘abstract’ from the aspect of ‘reception’) provides us with a shorthand linguis-
tic device which may be convenient for a number of expository purposes. But to
‘abstract’ from an element, as we saw, does not allow us to do without its existence.
This is the faux pas taken by Alchourrón and Bulygin, as well as by many criminal
law theorists: the existence of an effective reception by each addressee in the relevant
universe is a necessary condition for ‘it is forbidden to kill’ to be true. And in this
acception, more importantly, the possibility of analysing the impersonal statement in
a conjunction of singular prescriptions is essential to the possibility of affirming that
someone ‘obeyed’ or ‘complied with’ or ‘infringed’ or ‘violated’ the prescription:
only particular prescriptions, not general ones, may be obeyed or disobeyed. Moreo-
ver, for the following propositions:
(1) It is forbidden to kill
(2) A killed somebody else
(3) A violated the prohibition to kill
two conditions are necessary (although not sufficient49) for (3) to be true: one condi-
tion, naturally, is the truth of (2); and the other is that A belongs to the universe of
the addressees of the singular prescriptions in which (1) may, in this acception, be
decomposed. In other words, it is necessary that the truth of (1) be dependent on the
truth of ‘A was forbidden to kill’ — which would amount to something like von
Wright’s ‘normative relationship’.
On the contrary, in acception (b), the impersonal predicate ‘is forbidden’, when
associated to a state of affairs (which may well be a human action or omission), ex-
presses only that such state of affairs ought not to be — and (1) will be simply inter-
preted as ‘it ought not to be that someone kills somebody else’ —, but it does not
imply the existence, for someone, or anyone, of the ‘prohibition’ to kill in the proper
sense.50
48 The false assumption of which I previously accused Alchourrón and Bulygin clearly
underlies the following passage: ‘von Wright’s concept of existence is particularly suit-
able for direct commands and permissions (particularly regarding the subject) and even for
general norms addressed to a relatively small or at any rate easily identifiable audience
(like military commands). But in the case of general norms addressed to a class of persons
whose members are not easily identified — as with most legal norms — the situation is
different’: cf. Alchourrón and Bulygin (1989) 668; similarly, (1979) cit., 30.
49 The set of the necessary conditions for the existence of a particular prescription and the
set of the necessary conditions for the violation of a prescription are evidently not coex-
tensive.
50 Between acceptions (a) and (b) the following relation obtains: a stricto sensu prescrip-
tion of type (a) always presupposes an evaluation of type (b), much in the same way that a
theory of ought(-to-do) pressuposes a theory of value: cf. Raz (1990) 11.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 27
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
It is not in acception (a), as we have seen, that jurists use sentences such as ‘it is
forbidden to kill’ or talk about ‘violations’ or ‘infractions’ of ‘primary norms’; for the
purposes of the present paper, this is all I would like to defend and commit myself
to. As to the possibility of characterizing the sentences with which jurists and citizens
normally speak about what ‘is forbidden’ as sentences of type (b), I shall not develop
it much, as it falls outside the scope of my investigation. However, I believe that it
may be argued that, in the mouths of jurists, propositions about ‘prohibitions’ ex-
press only what ought-to-be from a given perspective — and not what someone ought
to do.51 A possible line of reasoning towards such conclusion would perhaps draw
some attention to the legal terminology of ‘norm-violations’: if we interpret (1) ac-
cording to acception (b), the type of behaviour described in (1) (‘to kill’) may be of
course be instantiated by particular actions, but we may not see in this any violation
of a prescription proper. The truth of (1) under interpretation (b) rather determines that
certain actions of certain agents count as ‘violations’ for certain legal effects (meaning
that any particular action which is taken to exemplify the type of behaviour which
ought not to be will for that reason be called ‘prohibited’), independently on any
other conditions whatsoever and, namely, on any knowledge those agents might have
of the possibility of such effects. It seems to me that this is more closely related to
behaviour of the ‘primary norms’ which so interest jurists (although the topic will
have to be dealt with in a second ‘round’): in fact, they are unsusceptible of being
violated or obeyed in any proper sense — they are rather instantiated, or satisfied, and
nothing more.52
51 This idea needs much elaboration and refinement. It bears some relation to the century-
old doctrine of the double ‘nature’ of criminal norms in German (and German-influenced)
criminal theory, according to which criminal norms would function both as prescriptive
‘determination norms’ (Bestimmungsnormen) and as ‘evaluation norms’ (Bewertungsnor-
men) of a more or less ‘objective’ character. However, this ‘double nature’ thesis, widely
accepted in in some form or other, remains ultimately committed to a prescriptive under-
standing of criminal norms: while in its ‘evaluation’ aspect, criminal norms would en-
compass only those elements of crime relevant for the characterization of wrongful behav-
iour, the ‘determination’ aspect would extend to the conditions for the personal imputa-
tion of wrongdoing to some agent, without which no ‘infraction’ or ‘violation’ in the
proper sense is considered possible.
52 I have not maintained (nor have I contested) that there are in the law no prescriptive
norms in the proper sense. In this respect, it may be observed that in Alchourrón and Bu-
lygin’s texts one occasionaly finds affirmations such as ‘jurists rarely if ever use the term
“norm” with the meaning of ‘norm-communication’. Normally they use the term in the
sense of “norm-prescription”’ (Alchourrón and Bulygin 1989, 668, emphasis added) or
‘The admissibility of the excuse of mistake of law in criminal law shows that criminal
norms are sometimes thought of in terms of “norm-communication”’ (Alchourrón and
Bulygin 1979, 111, my translation, emphasis added). These affirmations are indeed
equivocal in view of the internal economy of the texts in which they appear: it is unclear
whether the authors think that (a) jurists, irrespectively of how they happen to speak, are
always referring to the same object (‘the’ legal prescription) in different levels of dis-
course, or rather that (b) in each case we shall be dealing with objects of different types. In
the first case, which is the one most coherent with their line of reasoning, the diversity of
truth-conditions for propositions about norms1 and norms2 would remain unaccounted
for; in the second case, the result of their proposed disambiguation would have to lead, as
I argued for, to the conclusion that ‘norms-prescription’ are not prescriptions at all.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 28
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
III
7. I tried to suggest that it is not possible to reconstruct, from the legal (and, espe-
cially, the statutory) material one usually has to deal with in a modern legal order, the
prescriptive citizen-addressing ‘primary norms’ which many criminal legal theorists
tend to admit as in some sense ‘existing’. Such a possibility, moreover, would re-
quire a transformation far more drastic than the simple collection, in statutory texts,
of expressly stated ‘prohibitions’.53 And it is not the case, contrarily to what is often
assumed,54 that the discussion of a model of parallel individuation of a set of ‘norms
for citizens’ and a set of ‘norms for judges’ is dependent only on its greater or lesser
convenience or usefulness as a theoretical model: this idea presupposes that such a
model would be eligible for competition with other equally possible ones, and this
possibility was precisely what I tried to impugn. The prescriptivist assumption is
therefore mistaken; and although it has occasionally been the target of some objec-
tions relatively similar to the ones I have tried to develop,55 it obstinately remains as
a central feature of most theoretical accounts of crime and criminal responsibility. Its
main consequence has been the translation of several results of philosophical analyses
of prescriptive discourse into the field of legal responsibility, and (indirectly) an
unwarranted approximation, in several aspects, of the models of moral and legal
responsibility — which is probably the cause of some persistent problems in the area
of criminal theory which may well be unsolvable.
These extreme and very broad claims are evidently in need of more and detailed
arguments supporting them, which may not be presented in the scope of the present
paper. But now and in view of the characterization of the inference thesis given in
Part I, the conclusion will have to be one of the following two: either we may still
conceive of our sanction norms as penal or punitive norms in the strict sense, in
which case the inference thesis is false; or the impossibility of reconstructing ‘pri-
mary’ prescriptive norms would have the implication that our penal law is not really
‘penal’ or punitive in any proper sense. This second hypothesis is evidently implau-
sible; but the first one is not difficult to lay bare. In order to do so, we may perhaps
return to an argument of Hart’s which has already been mentioned in connection with
the inference thesis, and now point that such an argument appears to rely on a non
sequitur. Let us recall the reasons adduced by Hart, quoting more extensively from
passages contiguous to the one already reproduced in Part I:
[W]e must identify a preliminary question to which the answer is so simple that the ques-
tion may not appear worth asking; yet it is clear that some curious ‘theories’ of punish-
ment gain their only plausibility from ignoring it, and others from confusing it with other
questions. That question is: Why are certain kinds of action forbidden by law and so made
crimes or offences? The answer is this: to announce to society that these actions are not t o
53 The ‘Code of Conduct’ drafted by Paul Robinson is considered to be ‘violated’ inde-
pendently of any knowledge the agent may have to that effect, and ‘mistake of law’ does
not constitute an absolute excuse: cf. ‘Section 226’ of his ‘Code of Adjudication’, in-
cluded in Robinson (1997) 228.
54 Cf., v.g. Dan-Cohen (1984) 625-9; Eser (1998) 36.
55 For a summarized presentation of the classical discussion of ‘imperativism’ in the frame
of continental criminal theory, Dias (1995) 53 ff., 125 ff.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 29
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
be done and to secure that fewer of them are done. These are the common aims of making
any conduct a criminal offence and until we have laws made with these primary aims we
shall lack the notion of a ‘crime’ and so of a ‘criminal’ (…) Yet only if we keep alive the
distinction between the primary objective of the law in encouraging or discouraging cer-
tain kinds of behaviour, and its merely ancillary sanctions or remedial steps, can we give
sense to the notion of a crime or offence .56
Hart seems to be suggesting that the preventive and conduct-guiding functions of
penal laws may not be explained without resorting to the idea that the criminal law is
primarily composed of ‘prohibitions’, and only secondarily of sanctions applied to
whoever happens to violate those ‘prohibitions’.57 But from the fact that the criminal
law performs a conduct-guiding function it does not follow that it must be conceived
as including ‘conduct norms’.58 Surely, a proprio sensu ‘conduct norm’ would be
able to fulfil this normative task (although it is arguable whether this would be the
case if no correspondent sanction were provided for); but there are other ways of ex-
plaining the way in which the law ‘guides’ the conduct of citizens and legal subjects
in general.
In the first place, this legal conduct-guiding function, rather than being theorized
as an exclusive task of single norms, may be globally conceived as a function carried
out by a set or system of norms (and it is sufficient that it is carried out only in gen-
eral), without obliging us to see in each or any of its norms a proprio sensu prescrip-
tion able to perform it by itself. In a legal order, such preventive and conduct-guiding
functions are sufficiently carried out if citizens have some very general idea as to the
types of behaviour which, if adopted, will make them probable candidates to some
types of sanctions, and if the quantum of the sanctions provided for in the law is
enough to function, also generally, as a conduct deterrent.59 None of this signifies
that one should be theoretically committed to an understanding of the criminal law
dependent on ‘prohibitions’ addressed to citizens.
In the second place, as far as only single norms are concerned, and although in
the literature treating conduct-guidance as a ‘function’ of legal norms60 there is some
tendency to identify the person guided by the norm and the norm’s addressee, maybe
it would also be feasible to portray such a guidance as a possible (but not necessary)
and, besides, non-exclusive effect of norms — an effect which (in a way much similar
to a ‘perlocutionary’ effect in the frame of speech act analysis) may well be thought of
as willed by the normative authority. This would enable us to say that with a pre-
scription addressed to some person (to a judge, for example) the legal authority might
attain the effect of guiding the conducts of some class of persons (of legal subjects,
for example).61
56 Hart (1968) 6-7.
57 See, also, Hart (1994) 27; and Hart (1983) 299-300. Similar or agreeing observations are
made, for example, by MacCormick (1973) 124; or Raz (1970) 87-8, 231.
58 Cf. Honoré (1977) 104.
59 It is interesting to contrast this with Hart’s remarks on the ‘ordinary citizen’’s ‘obedi-
ence’ to ‘the law’, in Hart (1994)114-7.
60 And as an essential one: in the words of Joseph Raz, as a function performed ‘by virtue
of their normative nature, their mode of normativity’; cf. Raz (1973) 280.
61 Cf., on this regard, Drury Stevensons’ use of the distinction, put forward in Sociolin-
guistic theory, between a text’s ‘auditory’ and ‘addressee’ in Stevenson (2003) 105.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 30
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
References
Alchourrón, C., Bulygin, E. (1979), Sobre la Existencia de las Normas Jurídicas,
Venezuela: Facultad de Derecho.
Alchourrón, C., Bulygin, E. (1989), ‘Von Wright on Deontic Logic and the Philosophy of
Law’, in The Philosophy of Georg Henrik von Wright (P.A. Schilpp, L.E. Hahn, eds.), La
Salle: Open Court.
Alchourrón, C., Bulygin, E. (1991), ‘Von Wright y la Filosofía del Derecho’, in Análisis
Lógico y Derecho, Madrid: Centro de Estudios Constitucionales.
Alldridge, P. (1990), ‘Rules for Courts and Rules for Citizens’, Oxford Journal of Legal
Studies 10, 489.
Bentham, J. (1970), An Introduction to the Principles of Morals and Legislation (J. H.
Burns, H. L. A. Hart, eds.), London: The Athlone Press.
Bobbio, N. (1970), ‘Norme Primarie e Norme Secondarie’, in Studi per una Teoria
Generale del Diritto, Torino: Giappichelli.
Dan-Cohen, M. (1984), ‘Decision Rules and Condut Rules: On Acoustic Separation i n
Criminal Law’, Harvard Law Review 97, 625.
de Lucia, P. (2002), Deontica in von Wright, Milano: Giuffrè.
Dias, J. F. (1995), O Problema da Consciência da Ilicitude em Direito Penal, 4. ed.,
Coimbra: Coimbra Editora.
Duff, R. A. (2002), ‘Rule-Violations and Wrongoings’, in Criminal Law Theory: Doctrines
of the General Part (S. Shute, A.P. Simester, eds.), Oxford: Oxford University Press.
Eser, A. (1998), ‘Verhaltensregeln und Behandlungsnormen. Bedenkliches zur Rolle des
Normadressaten in Strafrecht’, in Festschrift für Theodor Lenckner (A. Eser., U.
Schittenhelm, H. Schumann, eds.), München: Beck.
González Lagier, D. (1995), Acción y Norma en von Wright, Madrid: Centro de Estudios
Constitucionales.
Haffke, B. (1995), ‘El Significado de la Distinción entre Norma de Conducta y Norma de
Sanción para la Imputación Jurídico-Penal’, in Fundamentos de un Sistema Europeo de
Derecho Penal (J.M. Silva Sánchez, ed.; B. Schünemann, J. Figueiredo Dias, coord.),
Barcelona: Bosch.
Hägerström, A. (1953) Inquiries into the Nature of Law and Morals (K. Olivecrona, ed.),
Uppsa_a: Almqvist & Wiksells.
Hart, H.L.A. (1968), Punishment and Responsibility. Essays in the Philosophy of Law,
Oxford: Clarendon Press.
Hart, H.L.A. (1983), ‘Kelsen Visited’, in Essays in Jurisprudence and Philosophy, Oxford:
Clarendon Press.
Hart, H.L.A. (1994) The Concept of Law, 2nd ed., Oxford: Clarendon Press.
Hernández Marín, R. (1998), Introducción a la Teoría de la Norma Jurídica, Barcelona:
Marcial Pons.
Hilpinen, R. (1997), ‘On Impersonal Ought-Statements and Personal Directives’, in Norma-
tive Systems in Legal and Moral Theory. Festschrift for Carlos E. Alchourrón and E.
Bulygin, Duncker & Humblot.
Hobbes, Leviathan (1994), Hackett Publishing (E. Curley, ed.).
Honoré, A. M. (1977), ‘Real Laws’, in Law, Morality and Society. Essays in Honour o f
H.L.A. Hart (P.M.S. Hacker, J. Raz, eds.), Oxford: Clarendon Press.
Jakobs, G. (1972), Studien zum fahrlässigen Erfolgsdelikten, Berlin: Gruyter.
Kelsen, H. (1945), General Theory of Law and State, Cambridge: Harvard University Press.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 31
Luís Duarte d’Almeida – Against ‘Prohibitions’ (First Round)
Kelsen, H. (1960), Reine Rechtslehre, 2. Aufl., Wien: Franz Deuticke (1960).
Kelsen, H. (2003), ‘Geltung und Wirksamkeit des Rechts’, in Hans Kelsens stete Aktualität
(R. Walter et al, eds.), Wien: Manz.
MacCormick, D. N. (1973) ‘Legal Obligation and the Imperative Fallacy’, in Oxford Essays
in Jurisprudence. Second Series (A.W.B. Simpson, ed.), Oxford: Clarendon Press.
Mir Puig, S. ‘Valoraciones, Normas y Antijuridicidad Penal’, Revista Electrónica de
Ciencia Penal y Criminología 06-02, p. 1.
Molina Fernández, F. (2001), Antijuridicidad Penal y Sistema del Delito, Barcelona:
Bosch.
Nawiasky, H. (1948), Allgemeine Rechtslehre als System der rechtlichen Grundbegriffe, 2.
Aufl., Zürich: Benziger & Co.
Raz, J. (1970), The Concept of a Legal System, Oxford: Clarendon.
Raz, J. (1973), ‘On the Functions of Law’, in Oxford Essays in Jurisprudence (Second
Series), A. W. B. Simpson (ed.), Oxford: Clarendon Press.
Raz, J. (1990) Practical Reason and Norms, Oxford: Oxford University Press.
Robinson, P. (1997), Structure and Function in Criminal Law, Oxford: Clarendon Press.
Ross, A. (1968) Directives and Norms, London: Routledge & Kegan Paul.
Silva Sánchez, J.M. (1992), Aproximación al Derecho Penal Contemporáneo, Barcelona:
Bosch.
Stevenson, D. (2003), ‘To Whom is the Law Addressed?’, Yale Law and Policy Review 21,
105.
van Loon, J. F. G. (1958) ‘Rules and Commands’, Mind 268, 218.
von Wright, G.H. (1963), Norm and Action. A Logical Inquiry, London: Routledge &
Kegan Paul.
von Wright, G.H. (1989), ‘A Reply to My Critics’, in The Philosophy of Georg Henrik von
Wright (P.A. Schilpp, L.E. Hahn, eds.), La Salle: Open Court.
Latin Meeting in Analytic Philosophy Genoa 20-22 September 2007 32