Sources, Normative Hierarchies and Legal Reasoning
G IOR G IO P INO
1. Introduction
In contemporary, Western legal cultures at least two rather obvious assumptions, or
truisms, are commonly associated to the law. On the one hand, the law is regarded as an
artifact, a social product, something that typically happens to be deliberately (but occasionally
also unintentionally) produced in some social settings and by way of some social or political
arrangements – this is the very ‘positivity’ of law. On the other hand, the law is conceived of as
a ‘system’, a somewhat ‘ordered unity’, or the like1.
Both assumptions are strongly connected to a positivistic ideology, or at least to the
particular shape that legal positivism assumed in Europe in the 19th century – serving as the
cultural backbone, as the official ideology of the modern, liberal State2. These assumptions are
at play, for instance, when we assume that there is an almost palpable distinction between the
law of one jurisdiction and the law of another jurisdiction3, and that (absent specific
arrangements to this effect) a court or an authority of one jurisdiction is not bound to apply the
laws of another jurisdiction; or when we are concerned with making sense of – or possibly with
explaining away – some inconsistencies or lack of coherence in the body of positive law 4; or,
finally, when we regard some laws within one jurisdiction as ‘higher’ or ‘superior’ to other
laws of the same jurisdiction.
To be sure, many aspects of the traditional positivistic picture are now under considerable
strain, due to the increasing interconnectedness of national legal systems induced by
globalization and by the more recent evolutions of international law and so-called global law5 –
the European Union is of course the paradigm case of a system of systems, a macro-system that
1
I will leave it an open question if and to what extent a third assumption is also commonly associated to the
law, namely a requirement or expectation of justice. Arguably, common sense would support both a positive
(legislators should pursue the common good), and a negative answer to this question (legislators can do anything
they please, can give the law any content whatsoever). This question is, at any rate, immaterial to our present
discussion.
2
In this sense, as John H. Merryman rightly points out, “all Western states are positivistic” (J.H.
Merryman, The Civil Law Tradition, p. 21). Norberto Bobbio has famously distinguished between three main
senses that are commonly associated to the label ‘legal positivism’: as a theory of law (but one deeply entrenched
in the 19th century model of State), as an ideology (associating positive moral qualities to the law and to the
obedience of the law), and as a methodology (commending a scientific, non-evaluative approach to the study of
the law). According to Bobbio, only the third sense – methodological positivism – should be considered as legal
positivism proper. Cf N. Bobbio, Giusnaturalismo e positivismo giuridico, ch £££; G. Pino, ‘Legal Positivism in
Contemporary Constitutional States’.
3
On the idea that, according to modern legal positivists, the law is always and exclusively regarded as the
law of some jurisdiction, see J. Waldron, “Partly Laws Common to All Mankind”, p. 16-17 (Waldron then goes on
questioning this very idea).
4
I am using here the distinction between consistency and normative coherence as it has been introduced by
N. MacCormick, ‘Coherence in Legal Justification’ (defining consistency as logical compatibility, lack of logical
contradictions between legal norms; and normative coherence as the possibility of conceiving a body of norms as
the expression of one substantive underlying principle). See also J. Dickson, ‘Interpretation and Coherence in
Legal Reasoning’.
5
See for instance K. Culver, M. Giudice, Legality’s Borders.
cuts across the many individual systems it comprises6. Still, more than a grain of truth remains
with the two basic assumptions above – that the law is deliberately produced by some social
arrangement, and that the law is supposed to present itself in accordance to some ordering
criteria.
This is where the theory of legal sources steps in. As commonly understood, the
positivity assumption requires that any law must be traceable back to a ‘source’; and the
systematicity assumption requires that the sources of law must be ordered somehow, they must
form a kind of hierarchy. Accordingly, a sort of ‘standard picture’ of adjudication emerges:
adjudication, and legal interpretation generally, takes place within a framework of previously
established legal sources, they actually presuppose some (hierarchically ordered) set of legal
sources whose existence and hierarchical ordering is entirely independent from legal
interpretation itself – it is established by the Constitution, or by political authorities, and by the
very structure of the State7. Legal sources both bind and guide the interpreter in discharging her
adjudicative role, that is, in the charge of applying the law as it is announced in general terms
by the relevant legal sources. (Sometimes, the picture is even supplemented by some
authoritative, legally mandated criteria of legal interpretation: thus, the interpreter is not only
confronted with a closed and hierarchically ordered list of legal materials, but also with
supposedly binding criteria to interpret them8.) According to the standard picture, then, legal
sources and their hierarchy are a sort of objective element of legal reasoning, a datum that
imposes itself on the interpreter. Interpretation works on previously and independently
established legal sources9.
Given this general background, the aim of this paper is two-fold. On the one hand (sec.
3), I will engage in some theoretical analysis of the concept of normative hierarchy, and to this
regard I will try to show that in the law we should expect to find not just one concept of
normative hierarchy at work, but many. Differently put, the concept of normative hierarchy is
ambiguous, it can be used to describe different kinds of relations between legal norms, relations
that can produce different effects, and so it is important to make it clear what concept of
hierarchy is relevant in which context. (For instance, what is the actual concept of normative
hierarchy at play when we say that some constitutional norms are ‘superior’ to other
constitutional norms?) Before going to that, however, it will be useful to introduce some basic
concepts and distinctions that, despite their importance, are sometimes overlooked in
contemporary jurisprudential discussions (sec. 2): these concepts, it will emerge, will play a
key role in our effort to provide a more nuanced and precise account of normative hierarchies
in the law. On the other hand (sec. 4), I will try to underscore the role of legal interpretation and
argumentation in both the working and the establishment of normative hierarchies in the law.
See J. Dickson, ‘How Many Legal Systems? Some Puzzles Regarding the Identity Conditions of, and
Relations between, Legal Systems in the European Union’, and ‘Towards a Theory of European Union Legal
Systems’.
7
See for instance H. Merryman, The Civil Law Tradition, pp. 25-26 (the traditional theory of sources of
law represents “the basic truth”, “it is a part of his [scil., the average Continental lawyer’s] ideology”); T. Spaak,
‘Legal Positivism and the Objectivity of Law’.
8
This is the case, for instance, with the Italian legal system, which provides both a list of sources
(apparently ordered according to an order of priority), and a few criteria for their interpretation (literal meaning
and intention of legislator); see artt. 1 and 12 of the so-called ‘Preleggi’ (general provisions on law, inserted at the
beginning of the Civil Code) respectively. See J.H. Merryman, The Civil Law Tradition, p. ;
9
The standard picture is obviously disavowed by legal realists (as well as by other anti-formalistic
movements, such as the Critical Legal Studies), according to whom there are no such things as binding sources of
law, let alone a binding and definite hierarchy of sources of law. In the legal realist picture of adjudication, legal
reasoning is influenced by all kind of factors (policy arguments, cultural factors, individual sense of justice), and
the hierarchy of legal sources may act only as an ideological a posteriori rationalization, a window-dressing in
fact, of the judicial decision. See A. Ross, ‘Review of H.L.A. Hart, The Concept of Law’, and On Law and Justice,
£££. LEITER???
6
My working hypothesis here is that legal interpretation, and the one performed by courts in the
first place, is the place where normative hierarchies are in fact established. Sometimes, indeed,
and contrary to the standard picture of the relation between sources and interpretation hinted at
above, interpretation precedes, and may even establish, legal sources themselves, rather than
the other way round. I will then conclude with some general remarks on the scope of freedom
and constraint in legal argumentation (sec. 5).
Unfashionably, in this paper I will be mainly concerned with the viewpoint of national,
municipal legal systems, and of the legal actors operating therein. Accordingly, I will not deal
with the issue of the legal sources and their hierarchies in international law, or with the sources
associated to the emerging body of global law and global constitutionalism. This limitation in
the scope of my analysis is not meant to convey the impression that the question of the
hierarchy of sources in international law is not practically important or not worth theoretical
investigation – far from it10. In fact, the reason for the limitation of the scope of my analysis is
that by situating my argument to the context of national legal systems I intend to make my
point – that legal sources and their hierarchies entertain a bidirectional relation with legal
interpretation – more visible and striking. On the contrary, in non-state institutional contexts it
is indeed almost obvious that interpreters enjoy a wide margin of appreciation in determining
the respective strength and hierarchical position of the various legal sources11.
2. Some preliminary definitions and distinctions
Generally speaking, the topic of legal sources as such is normally neglected in
contemporary legal theory12. This is unfortunate since, as we have seen in sec. 1 above, the
topic of the sources of law is intrinsically related to the positivity requirement of the law, which
is central to our common understanding of the law, and even crucial for a positivist theory of
law – the whole point of legal positivism being that of conceiving of the law just as ‘positive
law’.
Indeed, it is essential to any positivist understanding of the law a) that the law is
conceptually distinct and distinguishable from other normative phenomena – from morality in
the first place; and b) that the law has boundaries, it has a ‘limited domain’13. It is easy to see
how these two positivistic requirements are related to the ‘positivity assumption’ introduced
above (sec. 1), and in turn to the topic of the sources of law. While morality is not deliberately
10
Recent work on this topic, with remarkable jurisprudential implications, include M. Koskenniemi,
‘Hierarchy in International Law: A Sketch’; J.J.H. Weiler, A. Paulus, ‘The Structure of Change in International
Law or Is There a Hierarchy of Norms in International Law?’; S. Besson, ‘Theorizing the Sources of International
Law’.
11
See A.M. Slaughter, A Global Community of Courts; S. Cassese, I tribunali di Babele; J. Allard, A.
Garapon, Les juges dans la mondialisation. The alleged absence of a rule of recognition (i.e. the rule that lists and
orders the criteria of validity and so the very sources of the law) in international law is what prompted H.L.A. Hart
to regarding international law as a borderline case of law. See H.L.A. Hart, The Concept of Law, ch X; J. Waldron,
‘International Law: “A Relatively Small and Unimportant” Part of Jurisprudence?’.
12
Notable exceptions include: A. Peczenik, On Law and Reason; R. Guastini, ‘Fragments of a Theory of
Legal Sources’; J. Gardner, ‘Some Types of Law’; R. Shiner, £££. The concept of source plays a crucial role in the
version of legal positivism elaborated by Joseph Raz (the ‘sources thesis’), but it should be noted that Raz’s notion
of a legal source is rather technical and admittedly different from the one prevalent in the common usage of
lawyers; see J. Raz, ‘Legal Positivism and the Sources of Law’, pp. 47-48, and ‘Legal Reasons, Sources and
Gaps’, p. 63. On the other hand, some very interesting research on the topic of legal sources is currently done by
some international lawyers and comparative lawyers.
13
J. Raz, ‘Legal Principles and the Limits of Law’; F. Schauer, ‘The Limited Domain of Law’; L.
Alexander, F. Schauer, ‘Law’s Limited Domain Confronts Morality’s Universal Empire’; F. Schauer, V. Wise,
‘Legal Positivism as Legal Information’.
created in social settings, law is typically created therein; and if the law is the product of
socially contingent acts of law-making, then the law of a jurisdiction is coextensive with the
sum total of the recognized acts of law-making – i.e., the law of a jurisdiction is what is
identifiable through the sources of the law that are in place in that jurisdiction. H.L.A. Hart’s
doctrine of the rule of recognition (a social rule that lists the finite set of criteria of validity –
the sources of law – in place within a certain social setting) compounds nicely all these
positivistic theoretical requirements14.
Once it has been duly recognized the central place of the concept of legal sources for any
understanding of the law, and with particular magnitude for a positivistic theory of law, a
survey of some useful theoretical concepts is in order, to be in a better position to understand
what a source is, and how it works. The four following subsections will briefly introduce some
important definitions and distinctions to this effect.
2.1. Legal Acts, Legal Texts, Legal Norms
The first distinction to be drawn is between acts, texts and norms.
By a legal act I mean the procedure that has to be followed by a duly empowered body or
institution in order to achieve the result of changing the law, by way of creation of new law, or
derogation, modification, or abrogation of existing law – in short, the law-making process. In
contemporary legal systems, the law-making process is normally and heavily regulated by the
law itself: by (secondary) rules of change, or norms of competence15. The legal regulation of
the law-making process usually includes: the identification of a body, or more accurately of a
set of bodies that are empowered to take that part in the law-making process (i.e., to exercise
law-making power), and their respective roles therein; the procedures to be followed in order to
properly achieve the result of creating new law, or of derogating, modifying, or abrogating
existing law; sometimes, the material limits to the proper exercise of the law-making power.
By legal text, or legal document, I mean the normal outcome of a law-making process –
in contemporary legal systems, the law-making process typically results in an official legal
document16.
By legal norm I mean the content of meaning that is normally expressed by a legal text –
or more accurately, by specific portions of it17. Legal interpretation, or textual interpretation, is
the process of ascertaining the meaning of a legal text. Accordingly, legal norms are identified
by way of legal interpretation. As we have seen (sec. 1 above), the process of legal
14
H.L.A. Hart, The Concept of Law, ch . For recent critical discussion on the concept of rule of recognition,
see the various essays in M. Adler, K. Himma (eds.), The Rule of Recognition and the U.S. Constitution; G. Pino,
‘Farewell to the Rule of Recognition?’
15
On rules of change, see H.L.A. Hart, The Concept of Law, ch £££; on norms of competence, see T.
Spaak, The Concept of Legal Competence, and ‘Explicating the Concept of Legal Competence’; on the idea that
the law regulates its own creation, H. Kelsen, General Theory of Law and State, £££. Norms of competence are
sometimes included in the general class of ‘meta-norms’. Still, as should appear clear from the discussion in this
subsection, defining norms of competence as meta-norms is mistaken, since norms of competence do not refer to
norms proper, but to legal acts.
16
The obvious exception here is custom, whose production does not necessarily – and not even typically –
result in a formal document. The role of custom as a source of law in contemporary legal systems is notoriously a
marginal one.
17
The distinction between legal texts and their meanings (the norms they convey) is reminiscent of von
Wright’s distinction between a norm and a norm-formulation (see G.H. von Wright, Norm and Action, pp. 93-95);
this distinction is not always duly acknowledged in contemporary analytical legal theory. For some notable
exceptions, see R. Guastini, ‘Rule-Scepticism Restated’, p. 147; D. Priel, ‘Trouble For Legal Positivism?’; see also
F. Schauer, Playing by the Rules, pp. 62-64 (acknowledging that the distinction between the rule and the ruleformulation is important, but adding that “the implications of that lesson are limited, and likely to be exaggerated”,
at 64).
interpretation is sometimes regulated by the law itself; but normally the various methods or
‘canons’ of legal interpretation, and their respective order of priority, are in actual fact the
product of the relevant legal culture. In the definition of legal norm provided at the beginning
of this paragraph, I have said that a legal norm is ‘normally’ expressed by a legal text. By this I
mean that legal norms may be established also by way of an argument that does not have the
form of textual interpretation – one that does not present itself has the ascription of meaning to
a legal text. This is the case of legal norms established by analogical reasoning, and of some
legal unstated legal principles18. In such cases we may use the label ‘unstated norms’, to mark
the difference with (and the different role played by the interpreter in the case of) the other,
textually stated legal norms.
Now, with this distinctions in mind, we can see that sometimes the concept of ‘source’ is
referred to the law-making act, and sometimes it is referred to the documents that are typically
created by way of those law-making acts. This ambiguity is rather innocuous. Nonetheless, and
unless stated otherwise, in the following of this paper I will use ‘source’ only in the second
sense, as a document duly produced as the result of a law-making process, and typically subject
to legal interpretation in order to ascertain its meaning (i.e., the norms it expresses).
2.2. Type-Sources and Token-Sources
Legal sources present themselves, typically, in the form of documents enacted as the
outcome of a certain – legally regulated – procedure. Now, to this regard it is possible to further
distinguish between a kind of legal source (a type-source), and a specific instance of a legal
source (a token-source).
Accordingly, it is possible to talk of legislation as a source of law (in the ‘type’ sense of
source), as well as of a single statute as a source of law (now in the ‘token’ sense of source).
Much on the same footing, it makes perfect sense to say that while legislation is a source of law
(in the ‘type’ sense of source) in a certain jurisdiction J, a specific statute is disallowed to serve
as a source of law (in the ‘token’ sense of source), due to some fatal defects in the procedure of
enactment, or to the fact that it has been repealed by subsequent legislation.
2.3. Formal Validity, Material Validity, Existence
As we have already seen (sec. 1 above), legal sources are what determines the distinction
between law and non-law – something can count as law only if it is traceable back to a legal
source. And in jurisprudential jargon there is a specific, magic word that is used to refer to what
belongs to law (to a legal system) – validity. So it would seem natural indeed to relate directly
legal sources (the basis of legality) to legal validity (the property of being legally existent).
Things are somewhat more complicated than this, though.
For one thing, contemporary legal systems usually resort to both ‘formal’ and ‘material’
criteria of legal validity (borrowing from Kelsen’s terminology, legal systems usually combine
both ‘static’ and ‘dynamic’ criteria of legal validity19). Accordingly, we should conveniently
distinguish between a formal and a material dimension of legal validity.
18
See N. MacCormick, Legal Reasoning and Legal Theory, £££. The idea that legal principles lack
‘pedigree’ – i.e., are not formally enacted – is stressed by R. Dworkin, ‘The Model of Rules I’; but Dworkin
patently overstates the case here, since of course there may be – and there often are – legal principles expressly
formulated in legal documents.
19
For the static/dynamic distinction, see H. Kelsen, Pure Theory of Law, £££, and General Theory of Law
and State, £££.
Formal validity obtains when a legal act is enacted in accordance to all the procedural
requirements that surround that specific kind of law-making activity; when this is the case, then
the relevant legal act, and the legal document produced thereby, are formally valid.
Material validity obtains when a legal norm is compatible (i.e., it lacks logical
contradictions to and is substantially coherent, in the sense introduce above, fn 4) with another,
‘superior’ norm20. Accordingly, material validity is not source-based, but content-based. Its
ascertainment requires the comparison of its content with the content of another norm.
As a consequence of the definitions above, formal validity is a quality of legal sources,
whereas material validity is a quality of norms. (Since formal validity and material validity are
distinct properties, it is possible to introduce even a third concept, such as ‘full validity’, that
would obtain when a legal norm is both materially valid and is expressed by a legal source that
is formally valid21.) The importance of separating the two faces of legal validity lies not only in
the fact that they are different from a conceptual point of view (one pertains to procedures, the
other to meanings), but also in some aspects of legal practice. For instance, in jurisdictions
where a judicial review of legislation is in place, it can happen that a statute is challenged either
on formal or on material grounds; or it can happen that a constitutional challenge targets only a
single allegedly materially invalid norm, among the many alternative norms that can be derived
by means of interpretation by a single statute. Moreover, if we recall the possibility (hinted at
above, sec. 2.1) that some legal norms cannot be considered as the meaning of a legal text, such
as in the case of analogy and of some legal principles, then we have legal norms that are not
evaluable in terms of the formal validity of their sources.
Moreover, formal and material validity do not seem to exhaust all the possible ways in
which a source or a norm can have effect in a legal system 22. Indeed, it can happen that a legal
source or a legal norm is actually used by the legal actors of a legal system despite the fact that
that source is formally invalid, or the fact that that norm is materially invalid. This can happen
in two ways. On the one hand, it can happen that a legal source or legal norm is actually
invalid, but some actors of the system do not have the power to declare its invalidity; or it can
happen that its invalidity has been mistakenly ignored by the competent legal actor. In such
cases, there can be an obligation on some legal actors to give effect to a legal source or norm
that is actually invalid. On the other hand, it can be the case that a legal source is formally
invalid, but legal actors decide that the relevant fault is indeed irrelevant, a minor one, and so
they decide to treat that source as actually formally valid. So there seem to be cases in which an
invalid source or norm is actually treated as valid: the fact that the procedure for the production
of a legal document (formal validity) has not been perfectly complied with, or that the content
of the legal norms derived by a source is not perfectly compatible with a higher norm, do not
necessarily prevent legal actors from using and giving legal effect to the formally invalid
source or to the materially invalid norm. In order to describe such cases, we cannot resort to the
concept of validity: we need a different concept – ‘existence’23.
From the point of view of legal theory, two interesting lessons can be drawn from what
has been said in this subsection.
I qualify ‘superior’ with inverted commas here, because I want to stress that as far as this definition is
concerned we do not still have any criterion whatsoever in order to ascertain the ‘superiority’ of one norm over
another. This point will be specifically taken up at sec. 3.2 below.
21
R. Guastini, ‘Invalidity’, p. 224; Wil Waluchow uses a similar concept, ‘systemic validity’, to refer to
‘full validity’ plus the fact that the fully valid norm is accepted and treated by the relevant legal actors as a valid
norms: W. Waluchow, ‘Four Concepts of Validity’, p. 140 (Waluchow’s notion of ‘systemic validity’ is in turn
borrowed and adapted from J. Raz, ‘Legal Validity’).
22
I am here ignoring the case of foreign norms whose operation in a legal system may be required by those
system’s private international law provisions. This case is immaterial to my present concerns.
23
R. Guastini, ‘Invalidity’, p. 224; W. Waluchow, ‘Four Concepts of Validity’, p. 140.
20
First, both formal and material validity are a matter of interpretation, and as such they can
be a matter of substantial disagreement between lawyers; likewise, treating an invalid item as
nonetheless ‘existent’ is entirely an interpreter’s decision (on both points we will return shortly,
see sec. 4 below).
Second, any legal system is populated by various legal norms that somehow ‘belong’ to
that system without being valid according to the criteria of validity of that legal system; this is
so because legal actors will routinely use (treat as valid) certain laws that are not really valid,
and because some norms of the legal system are not validated by other, ‘superior’ norms of that
legal system, and so they are neither valid nor invalid – typically, this is the status of
constitutional norms24. Accordingly, it is not true (actually, it cannot be true) that the legal
system is the sum total of all the laws that are valid according to the criteria set by that legal
system.
2.4. Institutionalized and Non-Institutionalized Sources; Binding and Permissive Sources
I have defined a ‘source’ as, typically, a document duly produced as the result of a lawmaking process (see sec. 2.1 above). This, in fact, can be considered as the definition of an
‘institutionalized source’, i.e. a source whose production is regulated, with variable degrees of
intensity, by other norms of the legal system. But ‘source of law’ is sometimes used in a
different, more loose way, to refer to all the possible factors that determine or influence the
decision of a legal actor – typically a judge. These factors could be any number of things: sense
of justice, equity, cultural and political orientation, policy arguments, judicial precedents (in
civil law countries), legislative intentions and preparatory materials, foreign legal materials,
and so on. We can call all these ‘non-institutionalized sources’25.
The distinction between ‘institutionalized’ and ‘non-institutionalized’ sources is
‘structural’ in character: it pertains to what a certain source is, and how it is produced (an
aspect on which I will have more to say shortly, sec. 3 below). And this structural distinction
should not be confused with a distinction pertaining a ‘functional’ aspect – what certain sources
do, or can typically be expected to do. With reference to this aspect, the function of legal
sources is to guide and determine decisions that are to be assumed by legal actors (legal actors
are supposed to act on reasons provided by legal sources, with exclusion of those other reasons
that have been excluded or not allowed by legal sources). More precisely, sources of law are
expected to determine a legal decision (i.e., a judge is bound to apply a certain statute, as a
legal source, even if she does not agree with the content of the source) – once they have been
duly interpreted of course. So, a legal source is expected to provide legal actors with a place
where to look for the legal norms that will then ground a legal decision26.
Now, as far as the functional dimension of legal sources is concerned, it is possible to
distinguish between ‘binding’ sources and ‘permissive’ sources27. Binding sources are those
sources that the legal actor is bound to apply – if a legal actor disregards a binding source, his
decision will be legally wrong (the decision will be invalid; or it will be considered as a reason
to impose some kind of fine or liability on that legal actor; and so on). Permissive sources, on
R. Guastini, ‘On Legal Order: Some Criticism of the Received View’.
See A. Ross, On Law and Justice, pp. 75-78 (‘completely objectivated’, partially objectivated’, ‘nonobjectivated’ sources); A. Peczenik, On Law and Reason, p. 257 (‘substantive reasons’ v. ‘authority reasons’); R.
Shiner, Legal Institutions and the Sources of Law, p. 3; R. Guastini, ‘On the Theory of Legal Sources. A
Continental Point of View’, p. 305 (but note that Shiner and Guastini do not define the relevant distinction in
exactly the same way).
26
See supra, fn 9 and accompanying text.
27
Various ways to present this distinction are provided by H.L.A. Hart, The Concept of Law, p. 294; A.
Peczenick, On Law and Reason, pp. 261-264; L. Green, ‘Law and the causes of Judicial Decisions’, § 3.
24
25
the other hand, have lesser, and variable, weight: they can be disregarded without affecting the
validity of the relevant legal decision (or without producing otherwise adverse consequences
for the legal actor in question); their use is permitted, and it can improve the degree of
persuasiveness, acceptability to the relevant legal decision.
I will return to the distinction between binding and permissive sources shortly (sec. 4
above). What I mean to stress here is that the ‘institutionalized’/‘non-institutionalized’
distinction and the ‘binding’/’permissive’ one are not symmetric. A certain institutionalized
source may be (perceived as) merely permissive, and a non-institutionalized legal source may
(be perceived as) binding by the relevant legal actors.
3. Normative Hierarchies in the Law
As noted at the beginning of sec. 3, the general interest to the topic in contemporary
jurisprudential discussion has been rather scarce; and, as a matter of fact, the interest in a
theoretical analysis of normative hierarchies in the law has been even more meager28.
Sociologically, this may probably be related to the conjunction of two circumstances: the
fact that the since the last few decades the agenda of contemporary debates in legal theory is
mainly dictated by the Anglo-Saxon academe, and the fact that – due exceptions allowed – in
the common perception of the average Anglo-Saxon legal scholar the hierarchy of legal sources
does not really seem to be an issue worth exploring (this, in turn, is probably due to some
perceived lack of ‘verticality’ in the structure of common law legal systems, as opposed to the
pyramidal structure of civil law systems29). Be that as it may, I believe that there is some
important theoretical work to be done on the concept of normative hierarchy, and that this work
may produce useful tools for both civil and common law countries. And, at any rate, it is now
almost a commonplace to note the ever increasing convergence between the civil law and
common law traditions.
I will begin with a brief exploration of the ways in which the concept of normative
hierarchy appears – albeit not always under this label – in some landmark work in
contemporary legal philosophy (sec. 3.1). Then I will try to elaborate and defend a possible
taxonomy of different senses of normative hierarchy that are relevant to the law (sec. 3.2).
3.1. Normative Hierarchies in Legal Theory
The topic of normative hierarchies appears prominently in Hans Kelsen’s legal theory.
According to Kelsen, the legal system is characteristically structured in a hierarchical fashion
(Stufenbau)30. This is so, because each valid norm of the legal system, N1, derives its validity
from another (valid) norm N2, which prescribes the mode of production of N1. By mode of
production, Kelsen basically means the forms and procedures to be adopted by the competent
body in order to validly enact N1; to some extent, N2 may also predetermine the content of N1.
Apart from the few ‘classics’ that I will present shortly, some recent investigations in the topic of
normative hierarchies have been provided by R. Guastini, M. Troper, O. Pfersmann, G. Pino, J. Ferrer, J.
Rodriguez.
29
In a recent book devoted to the theory of legal sources, written by a Canadian scholar but intended for an
international audience, the topic of normative hierarchies is hardly noticed: see R. Shiner, Legal Institutions and
the Sources of Law. Significantly, this absence has been immediately recorded by two European Continental
reviewers of that book: J. Wolenski, R. Guastini, ‘On the Theory of Legal Sources. A Continental Point of View’.
See also J.H. Merryman, The Civil Law Tradition, p. 26 (stating that in common law countries “there is no
systematic, hierarchical theory of sources of law”).
30
H. Kelsen, Pure Theory of Law, ch V; General Theory of Law and State.
28
Accordingly, “the relation between the norm that regulates the creation of another norm and the
norm created in conformity with the former can be metaphorically presented as a relation of
super- and subordination. The norm which regulates the creation of another norm is the higher,
the norm created in conformity with the former is the lower one”31.
H.L.A. Hart has deployed some conceptual tools that make room for two, or maybe three,
different kinds of normative hierarchies in modern, municipal legal systems.
On the one hand, there is the fact that such legal systems comprise two kinds of rules,
primary rules and secondary rules; primary rules are rules of obligation, secondary rules are
rules that regulate the creation and modification (rules of change), individuation (rule of
recognition), and application (rule of adjudication) of the primary rules. Accordingly, between
secondary rules and primary rules a certain kind of relation is in place, and this relation can be
usefully defined as a certain kind of normative hierarchy: primary rules are the object of
secondary rules; secondary rules are meta-norms that refer to primary rules32.
On the other hand, Hart associates the topic of sources and legal validity to the concept of
the rule of recognition, and states that a rule of recognition can provide either a) an order of
priority between the various sources it refers to33, or b) a principle of derivation of validity,
such that one rule derives its validity from another rule, in hierarchical order34. Hart describes
these last two hypotheses as cases of “a complex rule of recognition with [a] hierarchical
ordering of distinct criteria”35. But indeed here we seem to have two separate instances of
hierarchical ordering of norms or of sources, as Hart himself is ready do admit: a relation of
derivation, and a relation of subordination36.
3.2. Towards a Taxonomy of Normative Hierarchies in the Law
It is high time to propose a more-fine grained account of normative hierarchies in the law,
one that takes into account the several important legal concepts and distinctions that we have
introduced in precedent sections (legal sources, norms, formal validity, material validity).
Following the lead of some recent work on the concept of normative hierarchy in the law37, I
will propose a distinction between several relevant senses in which a hierarchical relation may
obtain in the law. (I will deal mainly with hierarchies of sources and hierarchies of norms; I
will leave out of direct consideration here the topic of hierarchies of organs and institutions.)
H. Kelsen, Pure Theory of Law, p. 221. Hence, Kelsen adds, “the legal order is […] a hierarchy of
different levels of legal norms”.
Kelsen is here indebted to Adolf Merkl’s ‘gradualistic’ approach to law. But note that Merkl’s approach to
normative hierarchies was more nuanced than Kelsen’s, comprising both the kind of hierarchies envisaged also by
Kelsen, and hierarchies related to ‘legal strength’ – if a norm N1 can derogate to a norm N2, then N1 is
hierarchically superior to N2 (see A. Merkl, ‘Prolegomena einer Theorie des rechtlichen Stufenbaues’).
32
H.L.A. Hart, The Concept of Law, £££. For a critical appraisal of this point, see D. Gerber, ‘Levels of
Rules and Hart’s Concept of Law’.
33
H.L.A. Hart, The Concept of Law, p. 101.
34
H.L.A. Hart, The Concept of Law, p. 107: “if the question is raised whether some suggested rule is
legally valid, we must, in order to answer the question, use a criterion of validity provided by some other rule”.
35
H.L.A. Hart, The Concept of Law, p. 101. On the hierarchical structure of the criteria of validity enlisted
in the rule of recognition, see M. Kramer, Where Law and Morality Meet, £££. Other Hartian scholars prefer to
talk of different, hierarchically ordered rules of recognition: see J. Raz, ‘Legal Validity’, pp. 150-151; F. Schauer,
£££.
36
H.L.A. Hart, The Concept of Law, p. 101. In much the same vein, see also R. Shiner, Legal Institutions
and the Sources of Law, p. 38 (subordination ‘by derivation’, and subordination ‘by power of abrogation’).
37
Most notably the work of R. Guastini, ‘Fragments of a Theory of Legal Sources’, and ‘On Legal Order:
Some Criticism of the Received View’. My account is not entirely identical to the one provided by Guastini,
though.
31
A structural, or formal, hierarchy obtains when a norm, or more likely a set of norm, N1,
regulates the production of a certain source (i.e., of a type-source). As a consequence, in order
to count as a valid source, a given token-source S1 must have been enacted in conformity to the
formal and procedural requirements set forth by norm N1. Clearly enough, this concept of
normative hierarchy is directly related to the concept of formal validity (see sec. 2.3 above). A
norm N1 is structurally or formally superior to a source S1, if it regulates the production of S1,
or in other words if it is condition for the formal validity of S138. Differently put, a structural
hierarchy obtains between a norm of competence (power-conferring norms, rules of change),
and the legal sources that are produced as the effect of the correct exercise of that legal
competence of power39.
A material hierarchy obtains when a norm N1 cannot be incompatible with another norm
(or set of norms) N2; if it is the case that N1 is in actual fact incompatible with N2, then N1 is
materially invalid40. So in this case there is a relation of material hierarchy between N1 and N2,
such that N2 is superior, in the specified sense, to N1; N2 is thus condition of material validity of
N1. The obvious problem, here, is to make sense of the status of N2: when is it the case that N2
is actually superior, in the relevant sense, to N1? The most obvious answer – that N2 is superior
to N1 if the former is condition of material validity of the latter – is, of course, questionbegging: indeed, being a condition of validity means being superior. We need a way out of the
circle, and this can only be another norm, N3, that provides the required hierarchical ordering of
N1 and N2. This will typically be done when N3 provides for a mechanism for the removal of
N1 in case it conflicts with N2 (for instance, a system of judicial review of legislation).
Accordingly, a material hierarchy between N1 and N2 obtains when a third norm (or set of
norms) N3 states that in cases of conflict between N1 and N2, N1 shall be declared null and void.
So, it is a norm of the kind of N3 that allows to – actually, it is N3 that establishes the material
hierarchy between N1 and N2: absent N3, there would be no criterion whatsoever to the effect
that N2 is superior to N1. In the terms of the example above, it is the existence of a system of
judicial review of legislation that allows to claim that the constitution is hierarchically superior,
in this sense, to legislation. Absent such a system, there would not be a relation of material
hierarchy between legislation and the constitution – but there still could be a structural
hierarchical relation, if it is the case that the conditions of valid enactment of statutes are
regulated by the constitution.
A logical hierarchy obtains when a norm (or set of norms) N1 has the function of
regulating the application of other norms N2. For instance, a norm N1 that expressly abrogates
or derogates to a norm N2, is hierarchically superior, in this sense, to N2.
A semantic hierarchy obtains when a norm regulates the interpretation of some sources41.
An axiological hierarchy obtains when one norm (or set of norms), is deemed more
important in respect to another norm (or set of norms). For instance, legal principles are usually
deemed more important than detailed rules (principles can make rules defeasible). Normally,
and absent a material hierarchy to the same effect, the operation of an axiological hierarchy will
consist in a judgment of preference or of applicability between the norms involved. So, if N 1 is
considered superior, in this sense, to N2, the consequence will be the application of N1, without
In a similar vein, M. Adler, M. Dorf, ‘Constitutional Existence Conditions and the Constitution’, talk of
‘existence conditions’ provided by the constitution to infra-constitutional sources (i.e., the constitution states the
conditions in accordance to which infra-constitutional sources can count as valid instances of the relevant typesource).
39
Cf W. Waluchow, ‘Four Concepts of Validity’, p. 137: “failure to observe a condition for the valid
exercise of a Hohfeldian power of law creation must, as a sheer conceptual matter, be a nullity”.
40
According to M. Adler, M. Dorf, ‘Constitutional Existence Conditions and the Constitution’, in this case
N2 acts as a ‘application condition’ of N1.
41
On ‘secondary rules of interpretation’, see W. Waluchow, Inclusive Legal Positivism.
38
resorting to a declaration of invalidity of N2. N2 will be just ‘set aside’ for the instant case, but
it will still be in force in the legal system, and potentially applicable in another case in which it
does not conflict with N142. An axiological hierarchy can coexist with a material hierarchy to
the same effect – this is the normal way to understand the relation between a rigid constitution
and legislation in a system with judicial review. In this case, legal actors may be confronted
with the decision of giving effect to the material hierarchy (= declaration of invalidity of the
inferior norm that conflicts with the superior one), or to the axiological hierarchy (= giving
effect to the superior norm and setting aside the inferior one, with a declaration of invalidity).
But sometimes an axiological hierarchy can be established absent a material hierarchy to the
same effect – indeed, it can be established between norms that have the same status as far as the
material hierarchy is concerned (more on this below, sec. 4).
4. Sources, Normative Hierarchies, and Legal Interpretation
Now that we have shed some theoretical light (or so the author hopes) on some important
jurisprudential concepts, as well as on the various sense and types of normative hierarchies that
operate in legal systems, we are in a better position to grasp the many ways in which legal
interpretation (or legal reasoning more generally) actually shapes, or concurs in shaping, the
relevant legal sources and the hierarchical relations – the other main aim of this paper. Recall
that the backdrop of this discussion will be the widespread cultural and ideological assumption
that legal sources and their hierarchies are the objective starting point of legal interpretation,
something on which the interpreter has no say, no decisive power – quite to the contrary, legal
sources and their hierarchical ordering is a given, an objective constraint for the interpreters.
We have referred to this as the ‘standard picture’ of adjudication (see sec. 1 above).
I will make to kind of remarks, here: one pertaining to the relation between sources as
such and interpretation, the other pertaining to the relation between normative hierarchies and
interpretation. (I will separate the two kinds of remarks for convenience’s sake, but they are
actually interrelated on many accounts.)
The first remark is, generally put, that the relation between legal sources and legal
interpretation is not ‘unidirectional’, as it were, but indeed ‘bidirectional’. A unidirectional
account is exactly the one that is assumed by the standard picture of adjudication: the
interpreter merely acknowledges, as a matter of objective fact, the existence of some sources,
and then proceeds to interpret it (the only margin of discretion for the interpreter, if such a
margin indeed there is, lies with the choice and the operation of the various canons of
interpretation). On the contrary, I will stress here the case for a bidirectional account of the
relation between legal sources and legal interpretation: it is not the case that legal interpretation
takes place not only on independently established legal sources.
To begin with, some amount of legal interpretation is actually required already at that
stage of legal reasoning where the interpreter ‘finds’ and selects the legal sources that are
relevant for his argument43. Indeed, since (as we have seen above, sec. 2) a legal source is
normally a document enacted as the outcome of a certain procedure, and since this procedure is
normally regulated by several legal norms, the judgment that the item S1 is a valid legal source
will normally presuppose a) having interpreted the relevant power-conferring norms (i.e., the
relevant norms that provide the conditions of formal validity for the source in question – the
42
The establishment of an axiological hierarchy is an apt description of what happens, for instance, when a
court resorts to ‘ad hoc balancing’ between competing constitutional principles.
43
Dworkin, Troper (una teoria realista),
norms that superior from the point of view of the relevant structural hierarchy); b) having
ascertained that the item in question actually fulfils the relevant conditions of formal validity44.
Individuazione di disposizioni:; il combinato disposto
Establishing type-sources
Establishing token-sources
; l’abrogazione tacita; azzeramento del valore precettivo di un certo testo (qualificazione del
testo come ‘non-fonte’, sua incapacità di esprimere norme, di produrre effetti giuridici) Binding
and persuasive sources
Distinzione tra fonti vincolanti e permissive (sfumata e graduale): J. BELL, Comparing
Precedent, pp. 1254-1255; F. SCHAUER, Thinking Like a Lawyer, p. 80.
So, theoretical and interpretive disagreement about legal sources may involve either the
status of something as a legal source in the sense of a token-source, or – even more radically –
its status as a type-source45.
But indeed, legal interpretation may not only establish legal sources as such, but may also
establish normative hierarchies as well.
Establishing axiological hierarchies
Establishing material hierarchies
Formal and material constitution
Rules and principles
Principi costituzionali supremi, unconstitutional amandments
Diritto interno diritto EU in Italia
5. Conclusions: Freedom and Constraint in Legal Argumentation
44
Adler-Dorf
I understand in this second sense Ronald Dworkin’s challenge to legal positivism based on the
pervasiveness of theoretical disagreements in law (see R. Dworkin, Law’s Empire): I take Dworkin as pointing
here not merely to interpretive disagreements on the meaning and validity of specific legal sources, but on the
status itself of certain things as sources of the law – for instance, principles and other moral arguments. On this,
see A. Dolcetti, G.B. Ratti, ‘Legal Disagreements and the Dual Nature of the Law’.
45
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