Testing the Utility of a Concept of Power-Conferring Norm: A Proposal

Résumé En

According to a conventionalist perspective, legal discourses admit several possible reconstructions. Their respective values depend on a form of epistemological utilitarianism. Legal practice tends to endow fragments of legal discourse that mention terms such as “competence”, “authority”, or “jurisdiction” with a distinct role. One wonders whether legal theory should provide legal disciplines with a specific concept of power-conferring norm to deal with these sentences. I propose such a concept, whose canonical formulation reads: “If an actor a accomplishes the action – i.e., follows the procedure – p having the subjective meaning of a norm n relative to a range of application ra and included in the range of regulation rr, then its objective meaning ought to be.” Such a norm makes the behaviour p of a given actor a the condition of production of a norm n bearing on the domain (e.g. activity, territory, class of persons, etc.) ra and having the normative meaning rr (e.g. mandatory, permissive, power-conferring, etc.). A first taxonomy exemplifies classes of power-conferring norms, and proves the wide applicability of the proposed concept across domestic, international, public, and private laws. A second one deals with the kinds of relations that exist between power-conferring norms: coordination and hierarchisation.