The Reception of Norms, and Open Legal Systems

The Reception of Norms, and Open Legal Systems * University Press Scholarship Online Oxford Scholarship Online Normativity and Norms: Critical Perspectives on Kelsenian Themes Stanley L. Paulson Print publication date: 1999 Print ISBN-13: 9780198763154 Published to Oxford Scholarship Online: March 2012 DOI: 10.1093/acprof:oso/9780198763154.001.0001 The Reception of Norms, and Open Legal Systems * José Juan Moreso Pablo E. Navarro DOI:10.1093/acprof:oso/9780198763154.003.0015 Abstract and Keywords This chapter challenges the traditional resolution to the problem of legal reception and offers an alternative account. Section I analyzes the extent to which certain analytical distinctions on loan from contemporary theories of legal systems can shed new light on problems of the reception of norms. Section II considers whether the notion of the legal system as an open normative system can provide a satisfactory resolution of the problem of the reception of norms. As it is well known, a legal system can provide criteria for enforcing both foreign norms and other different types of non-legal norm, for example, regulations of commercial companies, contracts, and the like. These norms are adopted by the legal system and, as Joseph Raz emphasizes, the more such a system adopts ‘alien’ norms, the more open it is. In the same vein, it is argued that where revolutionary changes have taken place, earlier norms are adopted by the revolutionary law — that is Page 1 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * to say, they can retain their binding force or applicability even though it is hardly possible to them as members of the new legal system. The chapter also shows that a sharp distinction between membership and applicability is an important analytical tool whose use yields a better understanding of the authoritative character of law. Keywords: legal reception, legal systems, norms, revolutionary law, Joseph Raz Introduction: The Problem of the Reception of Norms Legal theorists and legal philosophers have often claimed that even if a revolution changes the political authorities and the grounds of validity in a legal system, many earlier norms— that is, norms belonging to the pre-revolutionary legal system—are legally binding in the new system brought about by the revolution.1 In this connection, the following question arises; How is it that norms issued by the new authorities can be regarded as the foundation of the validity of the earlier norms? If there are no systematic relations between the new, revolutionary constitution and the earlier norms, it would then appear that the latter cannot belong to the new legal system. The problem adumbrated here is familiar under the rubric of the reception of norms. Many legal philosophers, in order to resolve the problem, have sought to establish structural relations between the earlier norms and the new system. For example, in his General Theory of Law and State, Kelsen writes: If laws which were introduced under the old constitution ‘continue to be valid’ under the new constitution, this is possible only because validity has expressly or tacitly been vested in them by the new constitution. The phenomenon is a case of reception (similar to the reception of Roman law). The new order ‘receives’, i.e., adopts, norms from the old order; this means that the new order gives validity to (puts into force) norms which have the same content as norms of the old order. ‘Reception’ is an abbreviated procedure of acprof-creation.2 (p.274) Kelsen's solution presupposes answers to two questions: What does tacit adoption mean, and how does the mechanism, of adoption work? Since Kelsen made no explicit effort to answer these questions, he overlooked important objections to the concept of the adoption of norms. The notion of tacit adoption was employed by Jeremy Bentham and John Austin as an explanation of how norms issued by an earlier sovereign can still be regarded as valid laws.3 Thus, norms issued by Rex I are tacitly adopted by Rex II unless Rex II has expressly repealed them. In The Concept of Law, H.L.A. Hart raises strong objections to this mechanism, maintaining that tacit adoption is dispensable. According to Hart, the application of earlier norms does not imply adoption; rather, courts identify them as law in accordance with a rule of recognition, for example ‘The norms issued by Rex I and his descendants are valid law.’4 Suppose, however, that after a revolution Brutus I becomes sovereign in direct violation of the accepted norms of succession. In such a case, the doctrine of the rule of recognition, which purports to explain the continuity of law, cannot explain the persistence Page 2 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * of an important part of legislation after a revolutionary change. Thus, Lon Fuller argues that according to Hart's view, either the earlier norms are no longer valid or they have been tacitly adopted by Brutus. As Fuller writes, referring to the revolution carried out by Brutus: Are we to say that it is a necessary consequence of this event that ail previous laws —including those of property, contract, and marriage—have now lost their force? This is the result demanded by Hart's analysis, yet it violates the experience of history. In this case Hart would have to employ, presumably, some such argument as that Brutus I, by saying nothing about the matter, tacitly re-enacted the previous law—the very argument Hart himself criticizes in Hobbes, Bentham, and Austin and an argument Hart's analysis is intended to render unnecessary.5 In his reply to Fuller, Hart maintains that Kelsen's solution was suitable—which seems to bring us back to our starting point; The mechanism that explains the post-revolutionary validity of earlier legislation is the reception or adoption of norms. According to Hart, the earlier norms would have to be mentioned eo nomine in any description of the validity criteria employed by judges (that is, their rule of recognition). So it is that (p.275) the earlier norms are received or adopted into the new system; their validity comes to rest on a new rule of recognition.6 The question of the membership of earlier norms in the new legal system was not in dispute among Kelsen, Hart, and Fuller; indeed, the persistence of earlier norms in new legal systems brought about by revolution may be regarded as the kernel of their respective resolutions of the problem of the reception of norms. In this paper we should like to challenge this traditional resolution of the problem of legal reception, offering in its place an alternative account. Specifically, we analyze, in section I, the extent to which certain analytical distinctions on loan from contemporary theories of legal systems can shed new light on the problem of the reception of norms, and, in section II, whether the notion of the legal system as an open normative system can provide a satisfactory resolution of the problem of the reception of norms. As is well-known, a legal system can provide criteria for enforcing both foreign norms and other, different types of non-legal norm, for example, regulations of commercial companies, contracts, and the like. These norms are adopted by the legal system, and, as Joseph Raz emphasizes, the more such a system adopts ‘alien’ norms, the more open it is.7 In the same vein, we will argue that where revolutionary changes have taken place, earlier norms are adopted by the revolutionary law—that is to say, they can retain their binding force or applicability even though it is hardly possible to regard them as members of the new legal system. We shall also seek to show that a sharp distinction between membership and applicability is an important analytical tool whose use yields a better understanding of the authoritative character of law. I. Legal Systems and the Persistence of Legal Norms In legal theory the expression ‘legal system’ is used in a variety of ways. In order to avoid certain common misunderstandings, it Is well to draw certain conceptual distinctions. First, one must appreciate that a legal system differs from a mere set of Page 3 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * norms. And, in addition, one must be aware of the complex relations that exist between and among the temporal dimension of legal norms, the dynamic content of legal systems, and the identity of law. (p.276) A set of isolated elements, no matter how important they may be, can scarcely be regarded as a system. An ordinary shopping list is not a system, for its elements are not related to each other in a certain way that is deemed appropriate to them; that is, elements can be considered a system only if they are structured in a specific way. In contrast to a set of norms that lacks a systematic character, the structure of a legal system is given by certain specific relations.8 These relations not only define the structure of the legal system, but also provide a criterion of membership in the system. Legal theorists and legal philosophers have often employed two relations as criteria for identifying norms in a legal system: a deductive relation and a genetic relation. According to the deductive criterion, a norm belongs to the legal system LS if it can be deduced from other norms in LS. A norm that is a logical consequence of other norms plays a role similar to theorems in axiomatic systems and can for this reason be called derived or implicit. The admission of a deductive criterion allows us to reconstruct legal systems as deductive systems, closed by means of the notion of logical consequence. According to this criterion, a legal system is a set of norms that contains all the logical consequences of the set.9 The genetic criterion says that a norm JVj belongs to a legal system LS if another norm 2V& which belongs to LSf authorizes its ejdstence. The genetic criterion can be applied only to issued norms, that is to say, a norm meets the genetic criterion only if its issuance is positively permitted by other norms in the legal system. In this respect, it is often asserted that the law regulates its own creation:10 the introduction and the elimination of legal norms are determined by higher-level norms in the legal system. It is not the case, however, that all norms belonging to a legal system LS can be regarded as derived or legally issued norms in virtue of other norms that are themselves members of IS. To avoid circularity in reconstructing the systematic structure of the law, it is necessary to distinguish between two types of norm, which will be termed independent and dependent norms.11 A norm N j is independent in a certain system LS if and only if It does not have a systematic relation within IS and its membership in LS is not based on the fact that another norm is already a member of LS, A norm Nk is dependent in a system LS if and only if its membership In LS presupposes that another norm N j already belongs to LS and a systematic relation exists between Nk and Nj. (p.277) The problem of the reception of norms is directed primarily to the dynamic character of law, and genetic relations among legal norms lend this character to the legal system. According to the genetic criterion, the content of legal systems is changed by the acts of issuance and derogation of norms. Thus, the content of a legal system at a particular time, say, the English legal system in 1996, differs not only from the English legal system in, say, 1940, but also from the English legal system as a non-momentary legal system. It is worth asking here whether the identity of a set of norms can, then, be a Page 4 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * function of the content of the set. The answer seems clearly to be a negative one. Such a reconstruction of the identity of a legal system would be at odds with another widely accepted thesis, namely: Even if the content of the law changes as a consequence of the issuance or derogation of norms, legal systems—for example, the English legal system— will maintain their identity over time. Various questions concerning the identity of legal systems and their temporal dimension may well be obscured by the ambiguity of the expression ‘the content of a legal system’. In the interest of clarity, we shall introduce a technical distinction between legal systems and legal orders.12 Legal systems are momentary normative systems, and each time a norm is issued or derogated by a competent authority, the result is a different legal system. Legal orders are sequences of legal systems.13 (p.278) The identification of particular legal systems and legal orders depends on the application of a conceptual rule that will be termed a rule of identification (hereafter ‘RI’}, RI not only allows us to identify both independent and dependent norms within a legal system, but also serves as a criterion for determining whether two legal systems belong to the same legal order. Thus, the identification of a legal order LO requires that the first system of a sequence be identified (hereafter ‘LSQ’ or ‘the originating system’); other systems LS 1 , LS 2,…, LSn belong to LO if and only if they meet certain criteria of membership in LO. Since we are not interested in a particular legal order, we shall confine ourselves to the general structure of a conceptual rule of identification and provide only a definitional scheme. It is well to bear in mind, however, that in order to grasp the content of a real rule of identification, the independent norms of the originating system must be explicitly identified. The general structure of a rale of identification can be shown by means of the following scheme, drawn from Eugenio Bulygin: (1) Independent norms. The norms N 1 N 2,…, Nn are valid in the legal system LS 0. LS 0 is the originating system of a legal order LO j, and the norms N 1 , N 2,…, Nn are the first constitution of LS 0. (2) Introduction of norms. If a norm N j is valid in a system LSt that belongs to LO j, and Nj empowers the authority x to issue the norm Nk, and x issues the norm Nk at time t, then Nk is valid in the system LS t+1 (the system at the moment following t) that belongs to LO j. (3) Elimination of norms. If a norm Nj is valid in a system LSt that belongs to LO j, and Nj empowers the authority x to derogate the norm Nk that is valid in LSt, and x derogates Nk at time t, then Nk is not valid in the system LSt+1 (the system at the moment following t) that belongs to LO j. (4) Persistence of norms. Valid norms in a system LSt that belongs to LO j, so long as they have not been derogated at time t, are valid in the system LS t+1 of LO j (at the moment following t). (5) Derived norms. All logical consequences of the valid norms in a system LSt that belongs to LO j are also valid in LSt14 Some comments on this rale of identification: Page 5 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * a) Independent norms of a system are identified extensionalty, and they do not meet either a genetic or a deductive criterion in the originating system LS0. Dependent norms are identified intensionally through the satisfaction of certain conditions—-that is, deducibility or genetic relations. (p.279) b) The independent norms of a system—that is, the first constitution— must be sharply distinguished from RI, for this conceptual rale of identification cannot be an independent norm. RI provides a recursive definition of valid norms in the legal systems that are members of a certain legal order, while the first constitution is a set of valid legal norms. It makes no sense to assert that Mis valid or invalid, and since by ‘validity’ we mean membership in a legal system, RI cannot belong to any legal system. c) Legal systems are static normative systems, closed under the notion of logical consequence.15 Once the constitution of LS0 is identified, the scope of the originating system is given by the logical consequences of the first constitution. d) The introduction and the elimination of norms provide an explanation of the genetic relations among legal norms. The dynamic character of law is reconstructed by genetic relations among norms belonging to an ordered pair of some subsequent static systems in a legal order. Thus, genetic relations are intersystemic.16 e) A legal system is a set of norms, and a legal order is a set of legal systems, Since the relation of membership is not transitive, legal norms do not belong to a legal order; the only elements of a legal order are static legal systems. f) The expression ‘legal order’ is not tantamount to ‘municipal law’ or ‘law of the state’; municipal law can normally be reconstructed as a set of successive legal orders.17 g) The continuity of law is usually regarded as an essential feature of legal dynamics. For this reason RI also includes a clause on the persistence of legal norms, that is, clause (4). h) A conceptual rale of identification like Mis not to be confused with a social norm addressed to judges, prescribing that the norms to be applied are to be identified by certain criteria. This social norm is usually termed a ‘rule of recognition’, and we are by no means denying its existence.18 We wish only to point out the following. Even if the existence of a rule of recognition is beyond doubt, it will still be necessary to distinguish between this regulative norm and the conceptual criteria that define the sources of legal validity in a legal system.19 (p.280) According to our distinction between legal systems and legal orders, the problem of reception comes to this; To what extent does the content of legal systems belonging to a legal order LO t determine the content of the originating legal system LS 0 in a subsequent legal order LO t+1 ? Any successful revolutionary change is a break in the legal order, and if a new constitution arises as a result of the revolutionary change, then this constitution is the beginning of a new legal order. Still, there are questions arising from this state of affairs: Do earlier norms meet any criteria of membership in the new system, that is, can they be either independent or dependent norms in the new system? And what explanation is there for the fact that earlier norms are still regarded as Page 6 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * valid in the first system of the new order? A postulate in legal theory has it that legal norms, once they have been created in a bona ide legal way, remain valid until they are explicitly or tacitly derogated.20 Since this idea of legal continuity is deeply embedded in legal theory, this solution to the reception of norms will be termed the traditional doctrine. It is important to note that we are describing not a particular, historical doctrine, but a conceptual position that intrinsically relates the binding force of earlier norms to their membership in the legal system brought about by revolutionary change. This position can be reconstructed by means of the following postulate: If a norm Nj belongs to a system LS that is a member of an order LO, then it belongs to all legal systems successive to LS in all legal orders successive to LO until its elimination. This clause, which can be regarded as a reformulation of the principle of persistence in a certain legal order, implies that earlier norms that are not derogated in the revolutionary transition also belong to the originating system in the new order.21 In other words, even if constitution A is illegally replaced by constitution B, the only change that occurs is in the acprof-making organs: the power to create and to derogate norms belongs henceforth to organ B instead of organ A Nothing else changes; in particular, all of the norms that were created under constitution A continue to be valid.22 Thus, according to this doctrine, it is the case that earlier norms are a part of the new system stemming from the revolutionary change, just as it is the case that legal norms remain valid after a lawful change in the constitution. Once a norm is legally issued, it belongs to all (p.281) successive legal systems in all successive legal orders until it is explicitly or tacitly eliminated. The traditional doctrine is not, however, free of problems. We shall confine ourselves here to three objections that are closely related to the determinacy of legal material and its identification. i) Derogation and the Determinac of Normative Powers. Were the traditional doctrine accepted, the originating system in a legal order could not be regarded as the set of all logical consequences of the first revolutionary constitution, for this first system must also include the earlier norms. Therefore, the identification of the originating system would require determining which earlier norms are eliminated in the course of the revolutionary transition. It may be suggested that a norm is eliminated if it is derogated by the new authorities. For example, when earlier norms are explicitly rejected, they are eliminated from the new systems in the new legal order. Sometimes earlier norms are not explicitly repealed but are tacitly derogated by the new authorities, ‘Tacit derogation’ usually means the elimination of a norm, from a system as the solution to a norm conflict. Thus, an earlier norm, is tacitly derogated if it contradicts the new constitution brought about by the revolution. The notion of a contradiction between norms is often applied to mandatory norms in the following way: A norm Nj contradicts norm Nt if and only if it is logically impossible to obey both norms at one and the same time. The case of per-missory norms is, to be sure, more complex, for they can be Page 7 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * neither obeyed nor disobeyed; a permissory norm and a mandatory norm are inconsistent, however, if it is logically impossible to obey the command and to observe the permission at one and the same time.23 New difficulties arise when we try to define a notion of norm contradiction that is appropriate for conflicts between competence norms. For example, does an earlier norm N j that empowers the authority Aj to issue norms addressed to a certain object O actually contradict another norm, Nk, brought about by the revolutionary change and empowering the authority Ak to issue norms addressed to the same object O?24 There is, prima facie, no conflict between these two com-petence norms, and consequently the principle of the persistence of valid law prompts one to grant that both norms belong to the legal system brought about by the revolutionary change. To be sure, this conclusion seems counter-intuitive, for it means that the earlier authorities retain their normative powers. What is more, since no (p.282) sufficiently clear notion of contradiction between norms is at hand, the adopted norms (and a fortiori the normative basis of the first legal system) cannot be precisely identified. This situation, needless to say, reflects a serious difficulty in the traditional doctrine, which would have one reconstructing the law as a legal system. ii) The Logical Indeterminacy of Legal Systems. Even if we could provide an appropriate reconstruction of the notion of ‘tacit derogation’, there is another source of indeterminacy in the identification of the first system, namely, the logical indeterminacy of the adopted set of norms. If an earlier derived norm contradicts the new ‘first constitution’, this norm can no longer be regarded as valid law and is eliminated from the new system. But in order to remove a derived norm N from a system, it is necessary to eliminate all those sets of norms that imply N. Since a number of norms are members of the sets that imply a derived norm N, the derogation of Meads to the logical indeterminacy of the legal system.25 iii) Legal Orders and Recursive Definitions. The first system in the new order can be indeterminate in another important way. A conceptual rule of identification RI is a scheme for deciding in a finite number of steps whether a certain norm, is valid in a legal system, and this mechanism of recursion always terminates in some independent norm (for example, the first constitution). If earlier norms belong to the legal system LS, which was brought about by the revolutionary change, they must be either independent or dependent norms in LS. Since only norms compatible with the revolutionary constitution are adopted into the new legal system IS, it is clear that these adopted norms cannot be regarded as independent, for they presuppose the existence of other norms in LS. Moreover, earlier norms cannot be regarded as dependent in the new legal system either, for they are (p.283) neither norms issued by authorities of the new legal system nor logical consequences of other norms of the new legal system. It can be argued that earlier norms were legally issued although their authorities are not competent in the new legal system. To identify the adopted set of norms, then, we must first determine not only the new, revolutionary constitution, but also which norms belonged to the last system of the old order. We cannot identify this last system, however, without resorting again to the mechanism of recursion, Page 8 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * which leads us to the originating system of the old order. This originating system may contain an adopted set of earlier norms, and so on. Thus, to include in the rale of identification a clause of persistence in legal systems of different legal orders can lead to a regressus ad infinitum, a never-ending process in the effort to determine whether a certain norm, belongs to a certain legal system. We advance these arguments not as a decisive objection to the traditional doctrine, but simply to suggest that it be considered more carefully. However, although we do not analyze the basic assumptions of this classical solution, we fail to see why legal theorists seem to find the traditional doctrine compelling. The doctrine is constructed for the most part around two premisses; Only valid norms are legally binding; and earlier norms are legally binding. From these premisses, it is quite easy to reach the conculsion that earlier norms are legally valid. Thus, in the case of the reception of norms, the traditional doctrine seems to provide a compelling explanation of the binding force of legal norms. There exists, however, a certain tension between these two premisses, a tension clearly manifested in the fact that legal philosophers often distinguish the persistence of earlier norms from other problems of legal continuity. For example, in General Theory of Law and State, Kelsen contends that a legal norm is valid only if its issuance is provided for by another, higher-level legal norm, but once a norm is legally issued, its validity is not affected by the elimination or derogation of the higher-level norm. In accordance with the so-called principle of legitimacy, legal norms ‘remain valid as long as they have not been invalidated’ in a way determined by the legal system itself.26 Thus, although a higher-level norm of competence must exist at the moment the lower-level norm is created, the validity of the lower-level norm is not dependent on the continued existence of the norm of competence. In his analysis of legal dynamics, Kelsen does not maintain that earlier norms, legally issued and not derogated by norms resulting from the revolutionary change, remain valid in the new legal system. Instead, he argues that the principle of legitimacy is limited by the principle of (p.284) efficacy, and he follows through by introducing the doctrine of the reception of legal norms, which is actually an abbreviated procedure of law creation. Indeed, although neither of the above-mentioned premisses of the traditional doctrine is rejected in The Pure Theory of Law.27 Kelsen was perfectly aware that earlier norms can represent a theoretical problem: Earlier norms are deprived of their validity by revolution and not by means of the principle of legitimacy. In General Theory of Law and State, he writes: No jurist would maintain that even after a successful revolution the old constitution and the laws based thereupon remain in force, on the ground that they have not been nullified in a manner anticipated by the old order itself. Every jurist will presume that the old order…has ceased to be valid, and that all norms which are valid within the new order receive their validity exclusively from the new constitution. It follows that, from this juristic point of view, the norms of the old order can no longer be recognized as valid norms.28 Thus, it follows from the revolutionary elimination of a constitutional norm, unlike the Page 9 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * derogation of other norms, that those norms grounded in this constitutional norm will also lose their validity. For this reason, the ‘reissuance’ of earlier norms in accordance with the new legal foundation is required in order to explain why they are still regarded as binding norms. In other words, the concepts of legal reception, tacit adoption, and so on are introduced to account for both the systematic character of law and the binding force of earlier legal norms in new legal systems brought about by revolutionary change. It is easy to see why the traditional doctrine has had considerable influence on the thinking of jurists and legal theorists. At least two reasons can be proferred. The idea of preserving a systematic reconstruction of the law seems to be a necessary constraint, for a basic function of the concept of a legal system is to provide a conceptual scheme enabling legal theorists to distinguish between legal norms and other, non-legal norms— for example, moral norms. Furthermore, recognition of the normative force of earlier norms seems to be required in order to provide a sound reconstruction of a widely accepted legal practice that treats these norms as legally binding. In summary, if the law is reconstructed as a system, legal norms seem to be binding in so far as they are valid in a legal system. A norm is valid in a legal system if and only if it is either an independent or a dependent norm. Earlier norms cannot be regarded as independent in the originating system LS 0 of a legal order, for they presuppose the membership of the norms in LS 0, which has been brought about by the revolutionary change. Since earlier norms do not satisfy the conditions marked by (p.285) the relations defining the membership of dependent norms in a legal system, the traditional doctrine introduces a clause of persistence as a means of explaining the membership of earlier norms in new systems. If, however, earlier norms do not belong to a new legal system, how might one explain their authoritative force? The relation between legal force and validity (membership) deserves closer attention here. If it were possible to distinguish sharply between the binding force of earlier norms and their membership in a new legal system, the traditional doctrine would no longer be regarded as an inevitable explanation of legal contL nuity. In section II, we argue that while we are not committed to accepting the membership of earlier norms in a new legal system, we seek to reconcile the systematic structure of law and the binding force of earlier legal norms. II. Legal Systems as Open Normative Systems Our solution to the problem of the reception of norms requires that we distinguish binding norms from valid norms or, in other words, from independent and dependent norms in, the legal system. A legally binding norm has legal effects (is applicable), and, from a positivistlc point of view, the binding force of a legal norm is relative to the existence of other norms. If a norm Njis applicable at moment t, then it is true that another norm Nj is valid in the legal system LS at this particular moment and prescribes how Nj is to be applied.29 It should be noted that there is no necessary one-to-one relation between Ni and Nj, for Nj can also prescribe the application of several other norms, say, Nh, Nk N1. It must be emphasized, however, that the applicability of a certain norm, say, Nh always requires the membership of another norm, say, JVj, in the legal system. Norms such as Nj provide the criteria of applicability in a legal system LS, and they are addressed to certain authorities—for example, to judges. Page 10 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * The applicability of legal norms is closely related to the institutional character of law, for a certain norm will have legal effects only if it is enforceable in the courts. Legal systems are institutional normative systems, and one characteristic of these systems is the existence of norm-applying institutions. Thus, it makes sense to attribute applicability to certain norms only if there are norm-applying institutions. Moreover, it is sometimes emphasized that legal systems necessarily contain norms establishing norm-applying institutions, and that norms belong to a legal system only if norm-applying institutions have a duty to apply the (p.286) norms.30 It follows from both theses that a (momentary) legal system contains only those norms that judges are bound to apply. If this approach were correct, however, the distinction between validity and applicability would in part collapse. There are, to be sure, a number of interesting relations between applicability and membership in a legal system, but these are nevertheless altogether independent properties of legal norms—that is, there is no necessary connection between the applicability of a legal norm and its membership in a (momentary) legal system. On the one hand, norms that do not belong to a legal system may nevertheless be applicable to certain cases. For example, in private international law, a norm N of a country Cj may be applicable in another country Cj, even if N does not belong to the legal system of the country Cj. On the other hand, a norm N, belonging to a certain legal system IS, may be inapplicable, namely, when another norm JVj forbids the application of N. For example, in many countries some constitutional rights and guarantees may be rendered temporarily inapplicable in accordance with the exercise of certain exceptional powers, say, emergency powers of the parliament. Or there may be a period of vacatio legis, as happened in Argentina in the 1920s. The Argentine Criminal Code was enacted in October 1921, but its article 303, in stipulating that the Code ‘shall become the law of the nation six months after its promulgation’, thereby established a temporal restriction on the applicability of other norms of the Code. Thus, although the Criminal Code was valid from the moment of its promulgation and criminal norms could be derogated, these norms were not applicable until April 1922 (except, of course, for article 303). Once membership and applicability are sharply distinguished, we can say that a conceptual rule of identification RI identifies only the valid norms in a legal system. Indeed, the distinction is necessary in order to grasp a crucial feature of legal systems, namely, that they are open systems.31 One important function of law is to provide support to other forms of social organization, and to this end, legal systems contain norms that lend binding force to other, non-legal norms.32 But how are we to characterize these other, non-legal norms? Raz points out that it is necessary to distinguish between norms that are recognized as binding in virtue of their being part of the legal system and other norms that are recognized thanks to the fact that lending support to such norms—that is, to foreign norms, contracts, regulations of commercial companies, (p.287) and so on—is an important function of legal norms.33 Raz's arguments on the open character of legal systems are illuminating, but they stand in need of certain refinements lest misunderstandings arise. For example, Raz claims that ‘alien’ norms are adopted by an open legal system if and only if Page 11 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * they are norms which belong to another normative system practised by its norm- subjects and which are recognized as long as they remain in force in such a system as applying to the same norm-subjects, provided they are recognized because the system intends to respect the way that the community regulates its activities….34 This characterization is too narrow, however, for it only makes possible the recognition of ‘other’ norms that are still in force. There is no room for the common-sense assertion that judges are in certain instances bound to apply the norms of an extinct state—for example, the Soviet Union. Moreover, as often happens in cases of private internal ional law, judges can apply foreign norms that were derogated long ago. The criteria For identifying adopted norms in a legal system must be distinguished from the reasons that are adduced to justify the adoption of norms. On (he one hand, a norm Nj, not belonging to a legal system IS, is adopted into LS if and only if another norm Nk, belonging to LS, prescribes that Nj be applied to certain cases. On the other hand, there are certain reasons that serve to justify the adoption of norms—for example, providing support to social groups, private institutions, and individual arrangements. Other reasons might include preserving peace and social order, or promoting legal certainty. Examples can shed light on the distinction between the criteria for identifying adopted norms and the reasons for adopting norms. Suppose that the following norm CNbelongs to a certain criminal code: If the law in force at the time the crime was committed is different from the law in force at the time the sentence is imposed, the law more favourable to the accused shall be applied. Put generally, CN, belonging to a legal system LS, requires that judges apply the less severe of two criminal norms arguably applicable to the defendant. Indeed, even a repealed norm may be applicable, provided it prescribes the less severe sanction; since this norm has already been derogated, it does not belong to the present system LS and could be regarded as adopted by the judge at the time of his decision. A judge's reasons for applying the less severe norm are clearly different from the reasons that prompted the legislators to issue the criminal norm CN in (p.288) the first place. The judge's reasons are usually related to the issue of fidelity to law in deciding legal cases, whereas the legislators’ reasons are normally related to principles providing justification for criminal norms generally—for example, a certain justification of punishment. So-called unconstitutional norms are another interesting example. An unconstitutional norm is an invalid norm, for it fails to exhibit the appropriate systematic relations to the independent norms of a legal system,35 but a court—say, a constitutional court—can mistakenly declare it to be valid. In order to come to terms with invalid norms, we must bear in mind the distinction between final judicial decisions and infallible ones. The constitutionality of a legal norm is not a matter that is determined solely by what a constitutional court decides; 36 that is, legal norms issued by an authority without competence are invalid even if a court takes the opposite position. Nevertheless, a final Page 12 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * decision of a constitutional court does determine the applicability of such a norm. When a court (wrongly) states that a norm is constitutional, such a norm will be applicable, but it is not valid in the system.37 A judge's reason for deferring to applicable unconstitutional norms may be fidelity to binding precedents or the necessity of meeting formal requirements of justice—such as, for example, treating like cases alike. Thus, unconstitutional norms can be regarded as adopted by a legal system, and the reason for such an adoption is an important feature of the law, namely, that it necessarily provide a mechanism for solving conflicts. The rules of adjudication can fulfil their functions only to the extent that they can settle legal disputes authoritatively.38 To obtain the social advantages of the legal process requires that the possibility of mistaken judicial decisions be accepted. However, to avoid one of the major shortcomings of legal realism, the concept of a definitive judicial decision must be carefully distinguished from the concept of an infallible decision. As we have already pointed out, many different norms can be adopted by legal systems, and where the reception of norms is concerned, we are not committed to accepting the membership of earlier norms in the new system. Earlier norms are no longer valid law, but they may still be applicable—that is, if they are adopted into the new legal system, which is to say, only if norms belonging to the new system establish the obligation to apply the earlier norms. The reasons for adopting the earlier norms include the need to preserve legal certainty—that is, to avoid a situation in which a certain area is not legally regulated at all, or to honour (p.289) certain legitimate expectations of citizens. For example, law, as John Finnis writes, employs a special technique in order to provide precision and predictability. Yesterday's legal acts are treated, today, as exclusionary reasons for acting in a way that was ‘provided for’ then. Finnis continues: The convenience of this attribution of authoritativeness to past acts is twofold. The past is beyond the reach of persons in the present; it thus provides (subject only to problems of evidence and interpretation) a stable point of reference unaffected by present and shifting interests and disputes. Again, the present will soon be the past; so the technique gives people a way of now determining the framework of their future.39 We have shown that a sharp distinction between the validity and the applicability of legal norms can provide a novel picture of the problem of the reception of norms. This picture, dispensing with the implausible doctrines of tacit adoption and reissuance, both preserves the systematic reconstruction of the law and takes into account the practice of recognizing the binding force of earlier norms. Although we believe that the concept of the open legal system may provide a basis for solving the problem of the reception of norms, we have by and large left out of our account thus far certain possible objections to our reconstruction. In closing, we turn to three such objections, with an eye to showing how they can be met. i) Lawyers are not always prepared to distinguish binding norms from valid norms. Many legal norms that judges are bound to apply are, no less for that, no Page 13 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * longer valid, but lawyers may not be willing to grant this proposition. In the reconstruction of the concept of a legal system, however, legal theorists are not committed to the reproduction of all aspects of legal discourse; rather, their concern is with an analysis of legal practices. Were legal parlance a conceptual constraint, then the idea of open normative systems would collapse, for jurists often refer to adopted laws as members of their own legal systems. Kelsen, for example, writes: The rule obliging the courts of a state to apply norms of a foreign law to certain cases has the effect of incorporating the norms of the foreign law into the law of this state. Such a rule has the same character as the provision of a new, revolution-established constitution stating that some statutes valid under the old, revolution-abolished constitution should continue to be in force under the new constitution. The contents of these statutes remains the same, but the reason for their validity is changed.40 (p.290) If the applicability of norms and their membership in a legal system are kept separate, the quoted passage from Kelsen can be con-laws and earlier norms is one and the same: A norm in the system— say, the new constitution— prescribes the enforcement of norms that do not belong to the system. ii) Does our solution actually presuppose a constitutional norm that prescribes the application of earlier norms? To be sure, a criterion for applying legal norms is not necessarily found in statutory or constitutional law. For example, some criminal codes specify no express means of resolving conflicts between general and particular norms, and, in order to resolve such conflicts, courts usually apply the so-called lex specialis rule of normative priority. The applicability of earlier norms can result not only from an explicit constitutional norm, but also from the practices of courts when they deal with the binding force of earlier norms. iii) It is tempting to assert that certain adopted norms, for example, foreign norms, differ in legal status from earlier norms. While authorities can derogate earlier norms, it makes no sense to claim that they can derogate foreign norms. Derogation, however, has several different uses in legal theory, in particular, two central readings of ‘derogation’ must be distinguished in order to avoid ambiguity. On the first reading, derogation is the elimination of norms from a legal system. On the second, derogation serves to cancel the applicability of a norm. Following this distinction, earlier legal norms cannot be eliminated from a legal system, but an act of parliament or a decision of a constitutional court can extinguish their binding force. In this case, earlier norms are derogated by legal authorities, which is to say that judges are no longer bound to apply them. Concluding Remarks It has been our aim to show that the problem of the reception of norms is closely related to the persistence of law and the validity of legal norms. Above all, we have criticized and offered an alternative to the traditional solution to the problem of the reception of norms, which has it that earlier norms are legally binding because they belong to the new legal system. Our purpose has been to challenge this traditional solution, and to consider the Page 14 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * extent to which the notion of open legal systems provides a solution to the problem. We have drawn a distinction between the membership and the applicability of legal norms. Only valid norms are members of a legal system, though a large number of norms may be (p.291) applicable despite not belonging to the system. We have claimed, therefore, that earlier norms do not belong to the new legal system even though they may be applicable and legally binding. The significance of what we have termed the applicability of legal norms has not always been appreciated by jurists and legal philosophers. The lack of an adequate reconstruction of the concepts of membership, existence, and the binding force of legal norms is largely responsible for the confusion still encountered in connection with applicability and other properties of legal norms. In particular, the underlying conceptual differences between applicability and membership are often overlooked, and it is claimed, for example, that legal norms are applicable only if they belong to a legal system, or that repealed legal norms are no longer applicable. Although we have pointed up shortcomings in, the traditional view, there is nevertheless a grain of truth in the idea that a conceptual connection exists between membership and applicability. The applicability of a norm Nj at a time t always presupposes the membership of another norm Nk in a legal system LS, a norm that prescribes that JYj be applied at t. In this respect, the notion of membership enjoys a conceptual priority over the notion of applicability, for the identification of a set of applicable norms at t is always relative to the identification of certain norms (that is, to criteria of applicability) belonging to the system LS at t. The open character of legal systems is intrinsically related to the institutional character of law. Law, a system of norms created and applied by specific social institutions, is both a social and a normative order. A proper solution to the problem, of the reception of norms not only depends on a clear understanding of the institutional, aspects of open systems, but requires, too, a careful, enquiry into the authority of law.41 This last topic is something we reserve for another occasion. Notes: (** ) The authors wish to thank Andrei Marmot, Stanley L. Paulson, Joseph Raz, and Cristina Redondo for helpful comments on a draft of the paper. They would also like to acknowledge the financial support of the Ministerio de Educación y Cicneia dc España. (1) By ‘earlier norms’ we mean those legal norms that were valid in the legal system preceding the revolutionary break. In our use of ‘revolution’ we mean to refer, too, to the so-called coup d'état and to other irregular changes in the constitution. (2) GTLS 117; see also PTL, at § 34(f) (pp. 208–11). (3) See Jeremy Bentham, Of Laws in General, ed. H.L.A. Hart (London: Athlone Press, 1970), at 21–2; John Austin, Lectures on Jurisprudence, 2 vols., 5th edn., ed. Robert Campbell (London: John Murray, 1885, repr. Glashütten imT aunus: Detlev Auvermann, Page 15 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * 1972), vol. II, at 521. (4) See Hart, CL, at 61–4, 2nd edn., at 62–5. (5) Lon L. Fuller, The Morality of Law, rev. edn. (New Haven: Yale UP 1989), 142. (6) See H.L.A. Hart, Book Review: Lon L. Fuller, The Morality of Law, in Harvard Law Review, 78 (1964–5), 1281–96, at 1296, repr. in Hart, Essays in jurisprudence and Philosophy(Oxford: Clarendon Press, 1983), 343–84, at 383. (7) See Raz, AL, at 119. (8) See Raz, CLS, at 24. (9) See generally Carlos E, Alchourrón and Eugenio Bulygin, Normative Systems (Vienna: Springer, 1971), at 54–60. (10) See e.g. LT § 31 (a) (at p. 83); PTL, at § 35(a) (pp. 221–4). (11) See Ricardo Caracciolo, El sistema jurídico. Problemas actuates (Madrid: Centro de Estudios Constitucionales, 1988), at 31. (12) For a more exhaustive analysis, see Carlos E. Alchourrón and Eugenio Bulygin, ‘Sobre el coneepto de orden jurídico’, Crítica, Rei'ista Hispanoamericana de Filosofía, 8 (1976), 3–21; Alchourrón and Bulygin, Sobre la existencia de las normns jurídicas (Valencia, Venezuela: Universidad de Carabobo, 1979, repr. Mexico City: Distribuciones Fontamara, 1997); Alchourrón and Bulygin, ‘The Expressive Conception of Norms’, in this volume, ch. 21. (13) The concepts of legal system and legal order can be regarded as a new formulation of Joseph Raz's distinction between momentary and non-momentary legal systems; see Raz, CLS, at 34–5. Three differences, however, are worth mentioning: First, Raz's characterization of the logical relations between momentary and non-momentary legal systems is ambiguous. On the one hand, he claims that momentary legal systems belongio non-momentary legal systems (see Raz, CLS, at 35). On the other, he maintains that momentary legal systems are subclasses of non-momentary legal systems (sec ibid.). Since membership and inclusion are very different relations, the logical nature of non-momentary legal systems is not clearly captured by Raz's distinction; that is, non-momentary legal systems can be either a set of norms or a set of systems. Sec also Eugenio Bulygin, ‘Time and Validity’, in Deontic Logic, Computational linguistics and Legal Information Systems, ed. Antonio A, Martino (Dordrecht: North-Holland, 1982), 65–81. A second difference is this. According to Raz, a momentary legal system contains only laws that judges are bound to apply. In our distinction between legal systems and legal orders, however, we are not assuming that all laws of a system at a moment t are, at this particular moment, legally binding. As we argue at some length below, a norm can belong to a legal system even if it is not Page 16 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * applicable. For example, a norm in the period of vacatio legis belongs to the legal system but is not yet applicable. Finally, a third difference is this. Raz's non-momentary legal systems seem to coincide with the law of a certain state—for example, England. Our notion of legal order docs not, however, commit us to this conception. For example, a system brought about by revolution and the old system do not in many cases belong to the same legal order, but even if we must distinguish in these eases between two different legal orders, we are not committed thereby to recognizing two non-momentary legal systems. (14) See Eugenio Bulygin, ‘Algunas consideraciones sobre los sistemas jurídicos’, Doxa, 9 (1991), 257–79, at 263–4. (15) See Michael Hartney, ‘The Confusion in Kelsen's Final Rejection of a Logic of Norms’, in Praktische Vermmft, Gesetzgebimg und Rechtsimssemchaft (ARSP Beiheft 52), ed. Waldemar Schreckenberger and Christian Starck (Stuttgart: Franz Steiner, 1993), 77–81, at 81. (16) See Raz, CLS, at 184–5; Caracciolo (n.11 above), at 87–73. (17) This idea was adumbrated by Adolf Julius Merkl in ‘Das Problem der Rechtskontinuiät und die Forderung des einheitlichen rechtlichen Weltbildes’, ZöR, 5 (1926), 497–527, at 499–500, repr. WS II 1267–300, at 1289–70. (18) See Raz, CLS, at 200. (19) For a classical discussion on this distinction between conceptual rules and prescriptive norms, see von Wright, NA, at 1–16. (20) See e.g. John Finnis, Natural Law and Natural Rights(Oxford: Clarendon Press, 1980), at 268. (21) See John Finnis, ‘Revolutions and Continuity of Law’, in Oxford Essays in jurisprudence, Second Series, ed. A.W.B. Simpson (Oxford: Clarendon Press, 1973), 44– 78, at 63; Neil MacCormick, H.L.A. Hart (London: Arnold, 1981), at 110. (22) We are indebted to Michael Hartney for illuminating comments on this point. (23) See von Wright, NA, at 141–60. (24) For a discussion of contradiction with respect to competence norms, see ibid, at 203–7. (25) Let us assume that the normative basis of the pre-revolutionary system of a legal order is as follows: (N 1 ) If one is over eighteen years of age, then one is an adult. (N 2) All adults ought to vote. As a logical consequence of N 1 and N 2, a norm N* can be derived: (N*) If one is over Page 17 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * eighteen years of age, then one ought to vote. Let us also assume that the following norm is issued by the revolutionary authorities: (N 3) People over eighteen years of age ought not to vote. N* is tacitly derogated by N 3 and cannot be a member of the new, revolutionary system. In order to remove N*, it is also necessary to eliminate either N 1 or N 2 from the new system. However, since both (N 1 , N 3) and (N 2, N 3) are consistent sets, the subtraction of N* from the new system leads to a logical indeterminacy in the basis of the legal system. See Alchourrón and Bulygin, ‘Sobre el concepto de orden jurídico’ (n.12 above); Alchourrón and Bulygin, ‘Expressive Conception’ (n.12 above); David Lewis, ‘A Problem about Permission’, in Essays in Honour of Jaakko Hintikka, ed. Esa Saarinen et al. (Dordrecht: Reidel, 1979), 163–79; Risto Hilpinen, ‘On Normative Change’, in Ethics: Foundations, Problems, and Applications, ed. Edgar Morscher and Rudolf Stranzinger (Vienna: Holder-Pichler-Tempsky, 1981), 155–64. (26) GTLS 117. (27) See PTL, at § 34(f) (pp. 208–11). (28) GTLS 118. (29) See Bulygin (n.13 above), at 66; José Juan Moreso and Pablo E. Navarro, ‘Applicabilità e efficacia delle norme giuridiche’, in Struttura e dinamica del sistemi giuridici, ed. Paolo Comanducci and Riccardo Guastini (Turin: G. Giappichelli Editore, 1998), 15–35. (30) See Raz, AL, at 115. (31) See ibid., at 119–20; Joseph Raz, Practical Reason and Norms, 2nd edn. (Princeton: Princeton UP, 1990), at 152–4. The distinction between membership and applicability of legal, norms can also be found in Eugenio Bulygin (n.13 above), at 85–81. (32) See Raz, AL, at 119. (33) See ibid., at 120. (34) Ibid. (35) See generally José Juan Moreso, ‘Verfassungswidrige Normen’, Rechtstheorie, 25 (1994), 417–49. (36) See Hart, CL, at 138–44, 2nd edn., at 141–7. (37) See Bulygin (n.14 above), at 267. Page 18 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015 The Reception of Norms, and Open Legal Systems * (38) See Raz, AL at 172–6. (39) Finnis (n.20 above), 269. (40) GTLS 244, For criticism, see H.L.A. Hart, ‘Kelsen's Doctrine of the Unity of Law’, in this volume, ch. 30, at § IV. (41) See Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994), at 210–37. Page 19 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Universitat Pompeu Fabra; date: 02 June 2015