DRAFT
Sources, Normative Hierarchies, and Legal Reasoning
[Theorizing the Sources of Law]
G IOR G IO P INO
University of Palermo, Italy | giorgio.pino@unipa.it | www.unipa.it/gpino
Contents
1. Introduction
2. Sources of Law in Contemporary Jurisprudence
3. Some Preliminary Definitions and Distinctions
3.1. Legal Acts, Legal Texts, Legal Norms
3.2. ‘Sources of Law’: Disambiguating the Concept
3.3. Type-Sources and Token-Sources
3.4. Institutionalized and Non-Institutionalized Sources; Binding and Permissive Sources
3.5. Formal Validity, Material Validity, Existence, Applicability
4. Normative Hierarchies in the Law
4.1. Normative Hierarchies in Legal Theory
4.2. Towards a Taxonomy of Normative Hierarchies in the Law
5. Sources, Normative Hierarchies, and Legal Interpretation
6. Conclusions: Freedom and Constraint in Legal Argumentation
Bibliography
1. Introduction
In contemporary, Western legal cultures at least two rather obvious assumptions, or
truisms, are commonly associated with the law. On the one hand, the law is regarded as an
artifact, a social product, something that is normally deliberately (but occasionally also
unintentionally) produced in some social settings and by way of some kind of 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.
These assumptions – I will call them ‘the positivity assumption’ and ‘the systematicity
assumption’ respectively – 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 jurisdiction 2,
and that (absent specific arrangements to this effect) a court or an authority of one jurisdiction
is not bound nor authorized 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 law3; or, finally, when we regard some laws as ‘higher’ or
‘superior’ to other laws. Both assumptions, moreover, are strongly connected to a positivistic
stance, 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 State4.
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
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 through some
social arrangement, and that the law is supposed to be structured in accordance to some
ordering criteria.
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, however, immaterial to my present
discussion.
2
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
with questioning this very idea).
3
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, i.e. lack of
logical contradictions between legal norms; and normative coherence as the possibility of regarding some set of
norms as the expression of one substantive underlying principle). See also J. Dickson, ‘Interpretation and
Coherence in Legal Reasoning’.
4
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 with the label ‘legal positivism’: positivism as a theory of law (but one deeply entrenched in
the 19th century model of State), positivism as an ideology (abscribing positive moral qualities to the law and to
the obedience of the law), and positivism 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’.
5
See for instance K. Culver, M. Giudice, Legality’s Borders.
6
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’.
This is where the theory of the sources of law steps in. As commonly understood, the
positivity assumption requires that any law must be traceable back to an appropriate ‘source’;
and the systematicity assumption requires that the relevant sources of law be ordered somehow,
that they form a kind of hierarchical structure. On the one hand, this is a matter of fundamental
political choices – qualifying something as a source of law, and ordering the various sources of
law in a hierarchical fashion, is a way of structuring and allocating the law-making power in a
political community7. For this reason, sometimes an official list of sources of law, and their
hierarchical ordering, is authoritatively provided for by the positive law itself: it may be
established in the Constitution, for instance, or in some other important legal document8. On
the other hand, the sources of law and their hierarchy are conceived of as a way of structuring
the job of the law-applying institutions: the sources of law 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 sources of law.
As a result of all this, a sort of ‘standard picture’ of adjudication emerges: adjudication,
and legal interpretation generally, take place within a framework of previously established
sources of law: adjudication and interpretation actually presuppose some previously established
set of sources of law, whose existence and hierarchical ordering are entirely independent from
legal interpretation itself – as we have just seen, in the standard picture the sources of law and
their hierarchical ordering depend from the very structure of the State, they are a political
question. Sometimes, this picture of adjudication is even supplemented by an official list of
methods 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 them9. (So not only the interpreter is authoritatively told where to find the relevant
legal materials, he is also authoritatively told how to proceed to interpret them.) According to
the standard picture, then, the sources of law and their hierarchy are a sort of objective element
of legal reasoning, a datum that imposes itself on the interpreter. Interpretation works – more or
less constrained by officially mandated methods – only on previously and independently
established sources of law10.
Given this general background, the main aim of this paper is to direct some attention to
some jurisprudential questions surrounding the sources of law. First (sec. 2), I will point to
some reasons for the persisting importance of a general theoretical inquiry on the topic of the
sources of law, and venture in some speculation regarding the decline in the interest of
professional legal philosopher – as opposed to, say, constitutional lawyers, comparative
lawyers, and international lawyers – for this topic. Then, I will engage in some theoretical
analysis on the concept of ‘source of law’: I will do this, first, by distinguishing many senses of
the term ‘source of law’ and by relating the question of the sources to some basic
jurisprudential concepts and distinctions that, despite their importance, are sometimes
7
M. Troper, ‘Marshall, Kelsen, Barak and the Constitutionalist Fallacy’, p. 37: ‘In a modern state, [the
institution of] a hierarchy of norms is the method used to exercise power’.
8
EXAMPLES. In a similar vein, the explicit provisions dedicated to the sources of law used to be
considered as enjoying of ‘constitutional’ status, independently from the nature of the legal document that
proclaimed them. This was a rather widespread opinion in European legal scholarship, especially before the
enactment of the ‘rigid’ constitutions’ in the second half of the 20 th century. Hans Kelsen’s distinction between
‘formal’ and ‘material’ constitutional provisions is inspired by the same logic. See H. Kelsen, £££
9
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 ‘Provisions on the Law in General (‘Preleggi’), placed at the
beginning of the Civil Code. See J.H. Merryman, The Civil Law Tradition, p.
10
See for instance J.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’.
overlooked in contemporary jurisprudential discussions (sec. 3); and, second, by analyzing the
concept of normative hierarchy (sec. 4) – to this last 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. (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?) On a more general level (sec.
5), I will challenge the standard picture of the relation between sources and interpretation by
underscoring the role of legal interpretation and argumentation in both the operation and the
establishment of sources of law and their hierarchies11. 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 hinted at above, interpretation precedes, and may even establish, the 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. 6).
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 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, or in non-municipal systems generally, is not
practically important or not worth of theoretical investigation – far from it12. Rather, the reason
for limiting the scope of my analysis in this way is that by situating my argument to the context
of national legal systems I intend to make my point – that sources of law 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 sources13.
2. Sources of Law in Contemporary Jurisprudence
Generally speaking, the topic of legal sources as such is normally neglected in
contemporary legal theory. True, recently there has been some notable jurisprudential work on
11
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,
£££; J. Frank, ‘The Intermittent Sovereign’; B. Leiter; L. Green, ‘Law and the Causes of Judicial Decisions’.
12
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’.
13
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; M.
Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’; J. Waldron, ‘International
Law: “A Relatively Small and Unimportant” Part of Jurisprudence?’.
single types of sources of law, e.g. constitutions, legislation, precedents, and custom14; but
there is comparative little on the concept of source as such15. This is particularly 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 in turn is central to our common understanding of
the law, and is also relevant to several important topics in legal and political philosophy such as
the following ones:
- The topic of sources is crucial in distinguishing law from non-law, and is closely
related to the concept of legal validity;
- The topic of sources points to, and explains, the idea of change in the law;
- The topic of sources is crucial to some Rule of Law requirements, namely the ones
related to the publicity and accountability of the law-making process16.
In addition to all this, the concept of source of law is all the more crucial for a positivist
theory of law – the whole point of legal positivism being that of conceiving of the law just as
‘positive law’17. Indeed, it is essential to any positivist understanding of the law that a) the law
is conceptually distinct and distinguishable from other normative phenomena – from morality
in the first place; and relatedly that b) the law has boundaries, it has a ‘limited domain’18. 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 created in social settings, law is typically created therein: the law of a jurisdiction
is identifiable through the sources of the law that are in place in that jurisdiction19. 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 requirements20.
The champions of 20th century legal positivism had indeed paid some attention to the
topic of the sources of law. Hans Kelsen….; Alf Ross….; H.L.A Hart…
But in the second half of the 20th century, jurisprudential interest in the topic of the
sources of law has rapidly declined. From the point of view of a micro-history of ideas, this
may be due to two concurring factors. On the one hand, in the second half of the 20th century
(say, from the late ‘60s onward) the main focus of jurisprudential enquiry has progressively
shifted from the point of view of the ‘legal system’ – its structural features, its components, its
dynamics – to the point of view of ‘legal reasoning’21. On the other hand, a large strand in the
jurisprudential debate – especially in the positivistic camp – has become more and more
preoccupied with ‘conceptual’ questions, i.e. questions such as the abstract possibility of
conceiving of a legal system that does not refer to morality as a criterion of validity of its
J. Gardner, ‘Some Types of Law’. On constitutions, J. Gardner, ‘Can There Be a Written Constitution?’.
On legislation, J. Waldron, ‘Legislating with Integrity’, and ‘Principles of Legislation’. On precedent and judgemade law, R. Siltala [AND MANY OTHERS]. On custom as a source of law, Perreau-Saussine, Celano, Schauer.
15
Notable exceptions include: A. Peczenik, On Law and Reason; R. Guastini, ‘Fragments of a Theory of
Legal Sources’; R. Shiner, £££. For the concept of source in the jurisprudence of Joseph Raz, see infra fn 18.
16
J. Waldron, ‘Can There Be a Democratic Jurisprudence?’
17
But even anti-positivists or non-positivists do not dream of overlooking the ‘factual’ dimension of the
law: see J. Finnis, ‘On the Incoherence of Legal Positivism’; R. Alexy, ‘The Dual Nature of the Law’.
18
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’.
19
N. Bobbio, Teoria dell’ordinamento giuridico, p. 179 (noting that the description of a given legal system
begins with the description of the sources of law that it comprises).
20
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?’
21
N. MacCormick, ‘The Rediscovery of Practical Reason’ and Legal Reasoning and Legal Theory; A.
Aarnio, R. Alexy, A. Peczenik; R. Alexy, Theory of Legal Argumentation; R. Dworkin, Law’s Empire
14
norms. In this more ‘conceptual’ debate, also the idea of a source of law surfaces sometimes,
but only in a very rarefied and stipulative way22.
3. Some Preliminary Definitions and Distinctions
Having 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 following subsections will briefly introduce some
important definitions and distinctions to this effect.
3.1. 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 competence23. 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
document24.
By legal norm I mean the content of meaning that is normally expressed by a legal text –
or more accurately, by specific portions of it25. Legal interpretation, or textual interpretation, is
See F. Schauer, V. Wise, ‘Legal Positivism as Legal Information’, pp. 1093-1094 (observing that in
contemporary jurisprudential debate, ‘source’ denotes any kind of contingent social decision about what is to
count as law). Much in this spirit, the concept of source plays a crucial role in the version of legal positivism
elaborated by Joseph Raz (the ‘sources thesis’), but Raz’s notion of ‘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. See also J. Gardner, ‘Legal Positivism: 5 and ½
Myths’, p. 20; L. Green, ‘Legal Positivism’.
23
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.
24
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.
25
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).
22
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
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 principles26. 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.
3.2. ‘Sources of Law’: Disambiguating the Concept
Now, with the above 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).
3.3. 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.
3.4. 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
26
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.
civil law countries), legislative intentions and preparatory materials, foreign legal materials,
and so on. We can call all these ‘non-institutionalized sources’27.
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 decision28.
Now, as far as the functional dimension of legal sources is concerned, it is possible to
distinguish between ‘binding’ sources and ‘permissive’ sources29. 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
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.
3.5. Formal Validity, Material Validity, Existence, Applicability
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
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).
28
See supra, fn 9 and accompanying text.
29
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.
27
both ‘static’ and ‘dynamic’ criteria of legal validity30). Accordingly, we should conveniently
distinguish between a formal and a material dimension of legal validity.
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’ norm31. 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 valid32.) 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 system33. 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
30
For the static/dynamic distinction, see H. Kelsen, Pure Theory of Law, £££, and General Theory of Law
and State, £££.
31
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.
32
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’).
33
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.
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’34.
From the point of view of legal theory, two interesting lessons can be drawn from what
has been said in this subsection.
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 norms35. 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.
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 meager36.
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 systems37). 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
R. Guastini, ‘Invalidity’, p. 224; W. Waluchow, ‘Four Concepts of Validity’, p. 140.
R. Guastini, ‘On Legal Order: Some Criticism of the Received View’.
36
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.
37
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’).
34
35
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)38. 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.
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”39.
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 rules40.
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 to41, or b) a principle of derivation of validity,
such that one rule derives its validity from another rule, in hierarchical order42. Hart describes
these last two hypotheses as cases of “a complex rule of recognition with [a] hierarchical
ordering of distinct criteria”43. 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 subordination44.
3.2. Towards a Taxonomy of Normative Hierarchies in the Law
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. It is high time
38
H. Kelsen, Pure Theory of Law, ch V; General Theory of Law and State.
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’).
40
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’.
41
H.L.A. Hart, The Concept of Law, p. 101.
42
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’.
43
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,
£££.
44
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’).
39
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 law 45, 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.)
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 S146. 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 power47.
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 invalid48. 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.
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.
46
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).
47
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’.
48
According to M. Adler, M. Dorf, ‘Constitutional Existence Conditions and the Constitution’, in this case
N2 acts as a ‘application condition’ of N1.
45
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 sources49.
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 N1 is
considered superior, in this sense, to N2, the consequence will be the application of N1, without
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 N150. 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 two 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 the case for a bidirectional account of the relation
On ‘secondary rules of interpretation’, see W. Waluchow, Inclusive Legal Positivism.
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.
49
50
between legal sources and legal interpretation: it is not the case that legal interpretation takes
place 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 argument51. 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
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 validity52.
This operation becomes increasingly more complex, and involves an increasing degree
of interpretive contribution from the interpreter, when we move to the case of what the Italian
legal culture calls ‘combinato disposto’, i.e. the practice of deriving a single legal norm from
sentences that are distributed in multiple, diverse legal texts (from an article of the Civil Code
and from an article of a statute enacted decades later, for instance) – sometimes even
distributed in texts that belong to different levels of the hierarchy of sources: for instance, a
statute and the Constitution.
But we can easily consider many other important examples in which the interpreter plays
an active role – actually, almost a creative role – vis-a-vis legal sources.
In some cases, interpreters may have to decide if a certain kind of act (of document) is
actually a source – more precisely, they decide if some kinds of acts can amount to typesources (in the sense defined above, sec. 2.2). For instance, a legalistic legal culture may be
tempted to deny the quality of legal source proper to a written constitution – they can consider
it just a political manifesto, serving as a source of inspiration for the action of political actors.
Or, in a civil law legal context it can be debated if, under what conditions and with what legal
strength judicial precedents are sources of law. Or, it may be necessary to decide if some kind
of soft law may amount to a legal source proper.
In some cases, interpreters may have to decide if a certain specific act (or document) is
actually a source – more precisely, they decide if some acts can amount to token-sources
(again, in the sense defined above, sec. 2.2). Here the question facing the interpreter will be: is
this specific item, that prima facie appears to be a formally valid piece of legislation, really a
source of law? Is it still in force? Does it express a normative content? Questions like these
may rise, for instance, in circumstances of implied repeal – when, in fact, it is left to the
interpreter to decide if a piece of legislation, that the competent authority has not explicitly
repealed, is still in force. Or, it can happen that a piece of legislation includes ‘things’ that the
interpreters do not wish to consider as strictly normative, or binding: canons of interpretation,
for instance, or legislative definitions, and the like.
Similarly, sometimes the interpreters have to decide what is the actual strength of a
purported legal source (sometimes, rarely, this is positively prescribed by legal sources
themselves: see art. 288.5 TFEU, ‘Recommendations and opinions shall have no binding
force’): here is where the distinction between binding and persuasive sources becomes relevant,
and this distinction is usually decided by the interpreters themselves53.
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 –
51
Dworkin, Troper (una teoria realista),
Adler-Dorf
53
J. Bell, ‘Comparing Precedent’, pp. 1254-1255; F. Schauer, Thinking Like a Lawyer, p. 80.
52
its status as a type-source54. But indeed, legal interpretation may not only involve the
establishment of legal sources as such – it may also establish normative hierarchies as well.
For one thing, axiological hierarchies are usually – albeit not necessarily – established by
means of legal interpretation and argumentation, or by use of doctrinal concepts and
constructions. Moreover, axiological hierarchies are often established (by the interpreters) upon
norms that belong to the same level as far as the material hierarchy is concerned. Accordingly,
interpreters actually introduce a hierarchy (here understood as an axiological hierarchy) where
there was none (the relevant norms are on the same level from the point of view of material
hierarchies).
Here is an example: one begins with a distinction between the ‘formal’ and the ‘material’
constitution55: the former is the actual text that is formally labeled ‘Constitution’, the latter is
the set of norms that regulate the procedures of law-making and – according to some – also the
procedures of law-application56; as it happens, the norms that compound the ‘material’
constitution usually, are as a matter of formal hierarchy, statutory norms; but since they are part
of the ‘material’ constitution, they deserve more importance than other statutory norms – with
all probability, they will be deemed more ‘resistant’ to abrogation and amendment than other
‘ordinary’ statutory norms.
Moreover, when interpreters envisage a relation of axiological hierarchy between some
norms (when they consider that some norms are particularly important, regardless of their
actual status from the point of view of material hierarchies), they will often tend to devise some
means of ‘protection’ of the relevant norms. More precisely, they will try to introduce – by
means of legal interpretation and argumentation – some mechanism of invalidation of those
norms that violate the other (axiologically superior) norms. Following the terminology
deployed in this paper, they will tend to convert an axiological hierarchy into a material one.
We may illustrate this practice of converting an axiological hierarchy into a material one
are with at least two particularly striking, and well-known, examples. For one thing, there is the
practice of many constitutional courts around the world of recognizing material limits to
constitutional amendments (absent any formal attribution of a power of judicial review of
constitutional amendments). As is well-known, many Constitutional courts have explicitly
claimed their legal and constitutional power to declare the unconstitutionality of constitutional
amendments, in case of violation of certain constitutional clauses. Moreover, the establishment
of judicial review itself in the United States has followed exactly this pattern: in the legal
reasoning of Justice Marshall, the acknowledgement of the (axiological) superiority of the
Constitution ‘logically’57 requires the establishment of a mechanism of judicial review of
legislation – and now we are in the position to see exactly why: absent judicial review, the
Constitution would not be superior at all, at least from the point of view of material hierarchies.
5. Conclusions: Freedom and Constraint in Legal Argumentation
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’.
55
Kelsen accepts such a distinction, for instance. See H. Kelsen, Pure Theory of Law, £££
56
According to our taxonomy, these cases would entail a logical and a semantic hierarchy, respectively,
among the relevant norms (see sec. 3.2 above).
57
Of course this is not a logical requirement at all – it is a political, substantive requirement.
54
I have tried to show that the relation between legal sources and interpretation is not
unidirectional, but bidirectional. In doing this, I have highlighted the many ways in which
interpreters may actively intervene in the individuation of legal sources and in determining
their status as sources as well as their legal strength. Moreover, I have tried to show that
interpreters may play a decisive role also in the working and in the establishment itself of
normative hierarchies – and for this reason I have provided a taxonomy of normative
hierarchies that is intended to be both descriptively more accurate than the common sense,
catch-all idea of hierarchy of legal sources (as well as more detailed than some approaches
present in contemporary legal theory), and apt to bring into relief the manifold interpretive and
argumentative practices related to normative hierarchies.
Now, the argument that I have tried to develop in this paper could be taken to suggest
the following conclusion: the entire legal system (not only legal norms, that are utterly the
product of legal interpretation, but also legal sources and their hierarchy) is, at the end of the
day, produced by the interpreters. This paper has begun with some apparent platitudes on the
role of legal sources and their hierarchy as guides on the activities of interpreters, and now we
seem to be left with exactly the opposite conclusion.
But this need not be the case. The impossibility of attaining the ‘noble dream’ of legalism
(“the law completely predetermines judicial decisions”) need not have us automatically
embracing the ‘nightmare’ of global skepticism (“the law is entirely created by judges”)58.
Indeed, even if judges enjoy some latitude in the ascertainment, establishment, and operation of
legal sources, they are bound to operate within multiple constraints. First of all, legal
interpretation does not take place in a vacuum, rather it is a sort of collective enterprise. By this
I mean that legal decisions require to be justified, and they can be justified only on the ground
of reasons that the other legal actors can be disposed to regard as legally acceptable.
Accordingly, it is simply not true that any single judge enjoys absolute freedom to decide
whatever she pleases on, for instance, the legal strength – or the lack thereof – of some legal
source. It is true, on the contrary, that such decisions happen to be taken collectively, as it were,
by means of the stratification of several decisions and of the arguments put on their behalf. (It
is nevertheless true, of course, that the margin of interpretive discretion becomes increasingly
more significant the more one moves towards the top of the echelon of judicial institutions.)
Moreover, there are also wider institutional constraints on the interpretive decisions of judges –
most notably, the foreseeable reactions of other political actors, such as legislators59.
At the end of the day, all these constraints are more cultural, sociological and political,
then legal in character. But their operation normally ensures some balanced sense of continuity
and innovation in the legal system.
The obvious reference is to H.L.A. Hart, ‘American Jurisprudence Through English Eyes: The
Nightmare and the Noble Dream’. See also J.J. Moreso, Legal Indeterminacy and Constitutional Interpretation.
59
M. Troper, Le droit et la necessité, £££; V. Ferreres Comella, Constitutional Courts and Democratic
Values, pp. £££
58
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