DIRECTIVES

and
NORMS

by

A L F R OS S

LONDON

ROUTLEDGE & K E G A N PAUL

NEW YORK : HUMANITIES PRESS
 First published 1968
by Routledge & Kegan Paul Ltd.
Broadway House, 68-7 4 Carter Lane
London, E .C .4
Printed in Great Britain
by Western Printing Services Ltd.
Bristol
© A lf Ross 1968
No part of this book may be reproduced
in any form without permission from
the publisher, except fo r the quotation
of briefpassages in criticism
Library of Congress Catalog Card N o 67-28027
S B N 7 10 0 3 6 3 5 3
 CONTENTS

Preface page ix
I Introduction
1 Traditionally a distinction has been made between ‘theoreti­
cal’ and ‘'practical' discourse. It remains undecided, however,
what the subject o f this distinction is, and what is its foun­
dation 1
2 Speech is the concrete linguistic phenomenon. A speech-act
is (1 ) a phonetic sequence (2) o f correct syntactic structure
(3) with semantic meaning and (4) pragmatic function 3
3 Indicative and directive speech are distinguished. I t is the aim
o f this study to explicate the concepts ‘directive’ and ‘norm’
on the basis o f this distinction, and to help lay a foundation
fo r deontic logic 7

II Indicative Speech
4 The phrase is a linguistic figure which expresses the idea o f
(or describes) a topic 9
5 A sentence in indicative discourse is a linguistic figure
expressing a proposition (an indicative), which is the idea
o f a topic conceived as real 12
6 Accepting or rejecting a proposition as true or false is a soli-
loquistic act which has an adjudicative function 15
7 Asserting a proposition is an act o f communication with an
informative function, by virtue o f the basic norm o f com­
munication 19
8 ‘Posing ’ a proposition is a speech-act which has a fabulating
V function 29
 CONTENTS

III D irective Speech

9 A sentence in directive speech is a linguistic form which
expresses a directive, that is, an action-idea conceived as a
pattern o f behaviour 34
10 The class o f directives called ‘personal’ includes as a sub­
class ‘speaker-interested’ directives, which include (1)
sanctioned commands and invitations, (2) authoritative
commands and invitations, and (3) sympathy-conditioned
requests 38
1 1 Personal directives which are hearer-interested include
advice, warnings, recommendations, and directions fo r use 44
1 2 Personal directives which are disinterested are called exhor­
tations or admonitions 47
13 Directives ivhich are impersonal and heteronomous are
called quasi-commands. They include (1) legal rules; and (2)
conventional rules (conventional morality, courtesy and
decency) 48
14 Directives which are impersonal and heteronomous-
autonomous include the rules o f games and sim ilar arrange­
ments founded on agreement 53
15 Impersonal directives which are autonomous comprise the
principles andjudgments o f personal morality 57
16 Acceptance is a soliloquistic act whose function is adjudica­
tive. I t occurs only with regard to the autonomous directives
o f morality. According to the non-cognitive view, acceptance
is constitutive 61
1 7 Directives are normally used in communication by advancing
them with directive function 68
18 The fundamental difference between indicative and directive
speech is to be found at the semantic level. This difference
conditions corresponding pragmatic distinction o f function,
and is related to standard differences at the grammatical
level 69
19 The distinction between indicative and directive speech is not
exhaustive 74

IV The Concept o f a N orm

20 From the point o f view o f the social sciences a norm is to be
defined neither merely as a linguistic phenomenon (the meaning
content which is a directive) nor merely as a socialfa ct 78
vi
 CONTENTS

2 1 A norm is to be defined as a directive which corresponds in a

particular way to certain social facts 82
22 Comments in further explanation o f the concept ‘norm’ 92

V A n Analysis o f the Elements o f a N orm

23 According to how the subject o f a norm is determined a
distinction is made between individual and universal norms.
A norm is individual i f its subject is determined as a closed
class, by the use either o f genuine proper names or o f des­
criptions which are combined with an indication o f time 106
24 According to how the situation is determined by the norm,
we distinguish between occasional norms and rules. Rules
are either hypothetical or categorical 111
25 According to how the theme o f the norm is determined, we
can distinguish between rigorous and discretionary norms 112
26 Chains o f norms. Commands and prohibitions 113
27 In a form alized language the directive operator is expressed
by the word ‘obligation’. In legal language a number o f other
derivative modal expressions are used. Von W right’s asser­
tion that ‘permission’ cannot be defined as the negation o f
obligation is disputed 116
28 Comments on the table o f legal modalities 124
29 I t is possible to interpret the legal modalities in such a way
that they have, to some extent, an application to non-legal
normative discourse 13 5

V I Deontic Logic
30 The fa ct that norms (directives) are without truth-value
does not rule out the possibility o f deontic logic 139
3 1 In indicative logic externalandinternalnegation are equivalent 143
32 In deontic logic external and internal negation are not
equivalent. Internal deontic negation is different from the
corresponding indicative negation 150
3 3 E x tern a l and internal deontic disjunction are not equivalent.
Internal deontic disjunction is differentfrom the correspond­
ing indicative disjunction 158
34 E x tern a l and internal deontic conjunction are presumed to
be equivalent and analogous to indicative conjunction 163
3 5 E x tern a l and internal deontic implication are not equiva­
lent. M ixed values occur in the value-table o f internal
deontic implication 164
vii
 CONTENTS

36 Psychological interpretations o f deontic logic: Ross (1941)

and von Wright 168
37 F ollowing Weinberger, the principles o f deontic logic are
interpreted as postulates defining directive speech. ‘ V alidity’
is not on an equalfooting ivith ‘truth’ but is derived from
the concept o f ‘acceptance’ common to both ramifications o f
logic 1 77
38 Deontic logic immediately concerns O-expressions (direc­
tives). I t has, however, derivative consequencesfo r the corre­
sponding F-expressions 182

Index 185
 AN ANALYSIS OF T H E E L E M E N T S OF A N O R M

com plying w ith the norm. It is im portant to the agent what

freedom o f choice the norm leaves him, but the presence o f this
freedom does not depend straightforw ardly on whether the theme
is determined individually or generically. It depends also on how
definitely the methods to be used and the consequences to be
allow ed are prescribed, whether explicitly or im plicitly.
In other w ords, the distinction between the individual and
generic determination o f theme is quite vague and relative. F o r
we m ight say that ‘ closing this w ind ow n o w ’ is determined
generically as the class o f acts w hich produce this effect regardless
o f what means are used and w hat consequences result. I f these are
limited in some w ay by the theme, one could always point out
further differences in how the theme m ight be satisfied. A deter­
mination which rules out all freedom o f choice is inconceivable.
Because o f this vagueness and relativity I shall not distinguish
categories o f norms according to some distinction between the
individual and the generic determination o f the theme o f the
norm. I shall say, merely, that according to how precisely the
theme is determined a norm is more or less rigorous or discretionary.

§26

Chains o f norms. Commands and prohibitions.

In this section we shall continue to discuss the description o f
action-ideas.
(1) It may seem tempting and relevant, while considering the
subject o f a norm , to raise the question o f legal persons (corpora­
tions and similar collective bodies). But since this w ould take us
too far into the special province o f the philosophy o f law, I shall
not deal w ith it here.1
(2) W ith regard to how a norm specifies the situation in which
it is to be operative, I wish to mention briefly a device o f great
importance, which is used in connecting norms in a systematic
unity, or system o f norms. This device consists in specifying the
condition o f application o f one norm as the condition that another
norm has been violated. T h e tw o norms in question may have
either the same subject or different subjects.
We have already referred to the fact ( § 2 1 , s.f.) that legal norms
1 These problems are discussed in Towards a Realistic Jurisprudence (1946), Chapter
V I II , 6.
113
 AN ANALYSIS OF T H E E L E M E N T S OF A NORM

present themselves, from a psychological point o f view , as two

sets o f norms, one directed to citizens, prescribing how they are to
act, and the other directed to the courts (and other enforcement
agencies), prescribing how they are to react to violations o f pri­
m ary norms.
This schema is, however, oversimplified. Consider, for example,
the legal norm which requires the seller o f personal property to
deliver the goods in accordance w ith the stipulations o f the con­
tract. This norm does not specify exhaustively the conditions under
which a judge should decide in favour o f the buyer (as plaintiff),
nor what the decision should be. I f the norm did contain exhaus­
tive instructions to the judge, it w ould have to deal w ith such
things as what has happened since the violation is claimed to have
occurred (Has the buyer brought his action w ithin the proper
time? Has the seller offered return or damages? H ave proceedings
been instituted in due form?) and w ould have to instruct the judge
in detail on what he should require o f the defendant (specific
performance? payment o f damages? sentence to punishment?). I f
each norm provided for all these conditions, it w ould be quite
involved and unw ieldy; furtherm ore, much material w ould be
repeated endlessly from norm to norm. It is much simpler to
separate norms into parts, and unite similar parts o f different
norms in a set o f rules which constitute an independent whole.
These separate sets may then be organized into a hierarchy so that
the condition o f the application o f norms at one level is defined
as the violation o f norms o f a low er level.
This is brought about in the follow ing w a y .1 One o f these
separate sets o f rules, known as substantive or prim ary law, describes,
m otivated by considerations o f public welfare, how the citizen is
expected to behave, for example, that a seller is to deliver
the stipulated articles in the proper time. Another set o f these
partial rules constitutes what may be called the law o f sanctions or
secondary law : These rules state the obligations2 which arise from
the violations o f those obligations created by substantive law.
T hey state, in other w ords, what sanctions are to be exacted o f the
citizen w ho has broken the law and make more precise the condi­
tions under which sanctions are to be applied. Traditionally, the

1 Cf. On L a w and Justice, pp. 207ff .

2 One does not say, however, that a crime entails an obligation to suffer punish­
ment.
114
 AN A N A L Y SIS OF T H E E L E M E N T S OF A NORM

law o f sanctions comprises the law o f damages and criminal law , to

these m ight be added those laws w hich specify the conditions
under which a judge may direct what is called ‘specific per­
form ance’ . Procedural law or tertiary law form s a third set o f
rules; here w e find a statement o f further conditions which
must be satisfied i f judgm ent is to be given and enforced, that
is, what procedure must be follow ed in determining and en­
forcing liability, and especially how an action is to be initiated,
and what rules o f evidence and procedure are to be observed in
court.
These three sets o f norms, taken together, may be interpreted
as rules which prescribe for citizens the behaviour required o f
them and w hich instructs citizens how to go about using the legal
machinery to obtain redress. B u t they may also be interpreted as
norms prescribing how judges (and other agencies o f enforcement)
are to decide cases brought before them.
(3) It is o f interest to note that the theme may be specified
positively as the performance o f an action (e.g., opening o f a w in­
dow), or negatively as an om ission (e.g., not opening it, leaving it
closed). Omission is not the same as the mere absence o f activity.
A man has not ‘omitted’ to help someone in distress, if he is far
away and unaware o f any need for help. ‘Om ission’ logically
implies at least that it was in the pow er o f an agent to act positively
in a situation.1 There are other conditions which must be satis­
fied for non-action to count as om ission; these, it seems, vary
w ith the situation. I shall not, how ever, go into this difficult
problem.
The positive and negative determination o f the theme o f a norm
is not to be confused with the affirmative and negative form ulation
o f the directive element o f a norm. A s w e shall see later, an obliga­
tion to omit an action is not the same as the absence o f an obliga­
tion to commit that act.
A norm which makes it a duty to behave according to a posi­
tively determined theme (the act C ) is called a command (to per­
form C ) .2 A nd a norm which makes it a duty to behave according
to a negatively determined theme (not-£7, the om ission o f C ) is

1 G . H . v o n W right, N orm and Action (1963), pp. 45ff .

2 T he term ‘com mand’ in this book is thus used in tw o quite distinct senses: Here
it is used as a term o f modal deontic lo g ic; above, § 10, it was used to designate one
kind o f personal, sender-interested directive.
115
 AN AN ALYSIS OF T H E E L E M E N T S OF A NORM

called a prohibition (against the performance o f C ). B y these

definitions, w e get the follow ing identities:
command (C ) = obligation (C )
prohibition (C ) = obligation (not C )
o r:
A command to undertake an act is the same as a prohibition against
omitting that act, and conversely.
(4) Follow in g von W right, I wish now to mention that a theme
may be determined either as the performance o f an act or as an
engagement in an activity.1 Closing a w indow or killing someone is
the performance o f an act. T o smoke or to run is to be engaged in
an activity. A n act is an event; an activity is a process. V o n W right
points out the fact that norms which govern activities are secon­
dary to norms which govern acts, in the sense that they are logically
reducible to the latter. A prohibition against sm oking is reducible
to a prohibition against the act o f starting to smoke (lighting a
cigarette) together w ith the command to stop sm oking i f one has
started (put out lighted cigarettes). On the other hand, it is not
the case that every act can be defined as the beginning or end o f
some activity. The two concepts, then, are not on an equal footin g;
they are not mutually reducible. The concept o f an act is primary
and irreducible.

§ 27

In a form alized language the directive operator is expressed by the word

‘obligation’ . In legal language a number o f other derivative modal expres­
sions are used. Von W right’s assertion that ‘permission’ cannot be defined
as the negation o f obligation is disputed.
W hat distinguishes a directive from a proposition is its operator,
which indicates that the topic (being an action-idea) is presented
as a pattern o f behaviour and not that it is thought o f as real. I
have represented the operator schematically by the w ords ‘so it
ought to be’ . These w ords are themselves hardly ever used, in the
expression o f directive meaning. A ccording to the situation in
which the directive is issued and the background o f factors which
constitute its source o f effectiveness, many different expressions
are used, and they are often reinforced by facial and other non-
1 Op. cit., pp. 4 1–42, 7 1 – 72.
11 6
 AN AN ALYSIS OF T H E E L E M E N T S OF A N O R M

verbal means o f expression. Choice o f w ords, facial expression

and behaviour all vary from situation to situation; consider, for
example, ordering a bank clerk to hand over m oney; beggin g;
asking a fellow traveller to close a w in d ow ; putting forw ard a
claim ; givin g advice; w arning; admonishing. In some cases, the
directive meaning is dependent on the tone o f voice and situation
in such a w ay that it is im possible to separate out definite linguistic
elements as its expression. Im agine a shabby person approaching
you in the street at night m umbling ‘Ju st a cup o f tea, g u v ’nor’ .
Because o f this variety o f intentions and their expressions it is
hardly possible to formalize ordinary directive speech. But the
case is different i f w e confine ourselves to norms. Because their
existential root lies in feelings o f validity (see above §§ 16, 2 1, and
22g) their linguistic expression is to some extent uniform. E ven
though the wealth o f linguistic and non-linguistic means o f expres­
sion permits much variety in norm ative discourse, there are, all
the same, a number o f deontic expressions (§ 9) which are especi­
ally suited to indicate the directive operator in this kind o f speech.
A ll these w ords and phrases ('ought’, ‘m ust’, ‘have to’, ‘to claim’ ,
‘ to have a right to’, ‘ obligation’ , ‘ duty’, ‘right’, etc.) have this
feature in com m on: they m irror that feeling o f validity and obliga­
tion which w e have said is the existential basis o f norms. F o r this
reason it is possible, without too much violating our sense o f
idiom, to stylize norm ative language by introducing the term
‘obligation’ as a standard symbol for the directive operator o f a
norm, that is, for the element which indicates that the action-idea,
described by the determination o f the subject, situation and theme,
is presented as a pattern o f behaviour (‘ so it ought to be’).
I f the analysis o f directives and norms which is the basis o f this
study is correct, then we may assume that ‘obligation’ is the funda­
mental directive category in which any norm may be expressed. I shall,
at any rate, make this my w orkin g hypothesis. It does not rule out
interpreting the concept o f obligation differently according to the
kind o f norm in which it occurs. It is reasonable to assume that in
legal, conventional, and autonomous moral contexts, ‘ obligation’
w ill be interpreted according to the different ways in which norms
are felt as valid.
There is no doubt, how ever, that many norm ative utterances
em ploy terms other than ‘ obligation’ . In legal language especially,
w e find such terms and phrases as: someone is entitled to
117
 AN A N A LYSIS OF T H E E L E M E N T S OF A NORM

something, has permission to do something, may do something, has a

claim against someone, is authorized to act in a certain way. These
and similar formulae obviously express something other than
someone’ s being under an obligation. F o r our hypothesis that
‘obligation’ is the single and irreducible norm ative category to be
maintained, we must show how these and similar formulae can be
analysed in terms o f ‘ obligation’ . Since legal vocabulary is the most
elaborate and articulate normative speech, and since the problems
which confront us are discussed most thoroughly in legal theory,
w e shall in what follow s be concerned prim arily with the analysis
o f legal language. We must later discuss how what w e say fits
other examples o f normative speech.
Before examining the norm ative modalities, some preliminary
observations are in order. First o f all, an obligation is norm ally a
relation between two persons, that is, A ’s obligation is normally
an obligation to another person B . 1
It is not, for the purposes o f this study, necessary to account
for how B , in the norm establishing A ’ s obligation, is identified.
It is sufficient to point out, that i f A ’ s obligation is completely
defined w ith reference to subject, situation and theme, it w ill then
implicitly and unam biguously be indicated who B is (if, as is usual,
there is a B .) Secondly, it must be observed that any well-
developed legal system, being institutional and dynamic, contains
not only norms o f conduct, which prescribe how to act, but also
norms o f competence, which provide how new valid and binding
norms may be created through the performance o f actesjuridiques.
N orm s o f competence are logically reducible to norms o f conduct
in this w a y : norms o f competence make it obligatory to act accord­
ing to the norms o f conduct which have been created according
to the procedure laid down in them. L ike obligation, ‘ competence’
is a relationship between two persons, between, namely, the per­
son w ho is endowed w ith competence and the person w ho is
subject to his pow er, w ho is, that is to say, under an obligation to
obey the norms created by him in the correct m anner.2
In the follow ing table o f legal-directive modalities, the first part
comprises the modalities o f norms o f conduct and the second
comprises those o f norms o f competence.

1 See below, § 28. Cf. On L aw and Justice, p. 16 3; Towards a Realistic Jurisprudence,

Chapter V III.
18 2 On L a w and Justice, pp. 32ff., 1 66ff.
 AN A N A L YSIS OF T H E E L E M E N T S OF A N O R M

The four modalities o f the first part are the result o f two simple
logical transformations. We start in (i) w ith ‘ obligation’ being
ascribed to A ; (2) is then introduced as, by definition, the nega­
tion o f (1). We then introduce (3) and (4) to denote the same
relation o f obligation as (1) and (2), but seen from the point o f
view o f B . (2) and (4) are negations o f (1) and (3); and the expres­
sions (3) and (4) are synonymous correlates o f (1) and (2).
The four modalities o f competence are related in the same way,
with (5) being taken as the starting point. (5) expresses A ’ s sub­
jection to B , that is, his obligation to obey the norms which B has
created in the proper way.
In the table, the symbol ‘= ’ indicates that the expressions which
it connects are synonymous and correlative, and the symbol ‘~ ’
indicates that the expressions it connects are contradictories. The
form ula ‘obligation A - B (C )’ is to be read ‘A is, in relation to B ,
under the obligation to exhibit conduct C \ where ‘ C ’ describes
the situation and theme o f A ’ s obligation. T he form ula ‘ subjec­
tion A - B (F ) ’ is to be read ‘A is subject to B ’ s dispositions (his
norm creating acts) within the field F , where ‘ F ’ describes B ’s
competence both in procedure and substance. The other formulae
are to be read analogously.

M odalities o f norms o f conduct

Obrigação ~(1) O bligation A - B (C ) = Claim B - A (C ) Pretensão

Permissão Não-Pretensão

Sujeição Competência
Imunidade Incompetência

(2) Permission A - B (n o t-C ) = N o-claim B - A (C )

 AN AN ALYSIS OF T H E E L E M E N T S OF A NO R M

The first four modalities stand in relations o f negation and

synonymy and are, therefore, interdefinable. A n y normative utter­
ance which may be expressed by one o f these modalities may be
rewritten as any o f the others. The same holds w ith the last four.
Furtherm ore, any norm o f competence may be transcribed as a
norm o f conduct, whereas the converse does not hold. This im ­
plies that any norm can, through logical transformations, be ex­
pressed, without change o f meaning, by any o f the four modalities
o f the norms o f conduct. A m ong these four form ally equivalent
modalities, however, the modality o f obligation is distinguished
as fundam ental; for it immediately expresses the specific directive
operator which, when the directive is a norm, has its existential
basis in the feeling o f validity. The special position o f the modality
o f obligation is shown in the fact that while a system is conceiv­
able which contains only affirmative norms o f obligation, the
same is not true o f the m odality o f permission. I f there were no
negative norms o f permission, norms, that is, which state what is
not permitted or what the agent is under an obligation not to do,
then there w ould be no normative meaning whatsoever. T elling
me what I am permitted to do provides no guide to conduct un­
less the permission is taken as an exception to a norm o f obligation
(which may be the general maxim that what is not permitted is
prohibited). N orm s o f permission have the norm ative function
only o f indicating, within some system, what are the exceptions
from the norms o f obligation o f the system.
It follow s from this that we have need, in a formalized language,
o f only one, irreducible, symbol for the directive element o f
norms, and that it is most natural to let this symbol stand for
obligation. In his deontic logic, however, vo n W right operates
with the two irreducible symbols O, for obligation, and P , for
permission. He does so because he is in doubt whether ‘permis­
sion’ is an independent m odality or not, and he positively rejects
the view which I have expressed that permission is simply the same
as the negation o f obligation.1 We must consider this fundamental
problem more closely.
First o f all, let us be clear about what the problem really is and
what facts are decisive for its solution. Form ally speaking, it is a
question o f definition. A s I have defined ‘perm ission’ in the pre­
ceding table, the expression is identical with the negation o f
1 G . H . v o n W right, Norm and Action (1963), pp. 85ff., 92.
120
 AN A N A L Y S IS OF T H E E L E M E N T S OF A N O R M

obligation. V o n W right may object that a norm ative term inology

constructed according to the table w ould be inadequate for for­
malizing actual norm ative discourse, since ‘perm ission’ is actually
used in such a w ay that my definition is not a correct interpretation
o f it, and since, furthermore, it expresses a concept so essential
that it cannot be ignored or written off.
V o n W right’s argument is as follow s. A s man’s skills develop
and his institutions and w ay o f life change, new kinds o f act come
into existence. A man could not get drunk before it was discovered
how to distil alcohol. A s new kinds o f acts are originated, a legis­
lator may feel it necessary to consider whether to order or to perm it
or to prohibit them for his subjects (my italics). I f we presuppose
the existence o f a legislating authority, then, it is reasonable to
divide human acts into tw o main groups, namely, acts which are
and acts which are not (yet) subject to norm by this authority. That
an act is subject to norm means that the legislator has decided on
his attitude tow ard it by either commanding, permitting, or prohibiting
its performance. Those acts which are not subject to norm (be­
cause the legislator has not yet decided on his attitude toward
them) are ipso facto not forbidden and in that sense such an act can
be said to be ‘permitted’ . It follow s that it makes sense to distin­
guish between two kinds o f permission, which vo n W right calls
strong and weak permission. Perm ission in the weak sense is identi­
cal w ith our concept o f perm ission; it means simply that the act is
not forbidden (because the legislator has not yet decided on his
attitude toward it). A n act is said to be permitted in the strong
sense when the legislator has decided on the normative status o f
the act and has expressly permitted it. Permission in the strong
sense is therefore not identical with the simple negation o f
obligation. V o n W right’s conclusion is that it is im possible to
define permission as the negation o f obligation and nothing
m ore.1
V o n W right’ s reasoning is obviously circular. It appears from
the phrases I have italicized that he presupposes that a legislator’ s
attitude toward an act is always manifested in some legislative act
which either commands or prohibits the act (that is, makes it an
obligation either to perform or to omit the act) or permits it,
w hich implies that no obligation at all exists. V o n W right thus
presupposes that to permit an act is an independent and irreducible
12 1 Op. cit., pp. 85– 87.
 AN AN ALYSIS OF T H E E L E M E N T S OF A N O R M

normative decision which is distinct from regulating the act under

an obligation, distinct, that is, from either commanding or pro­
hibiting it. So what his reasoning should prove is really assumed
in the premisses. Furtherm ore, this assumption that there are
three different ways in which a legislator may react to em erging
forms o f behaviour is without warrant in real life. I have never
heard o f any law ’ s being passed w ith the purpose o f declaring a
new form o f behaviour (e.g., listening to the wireless) permitted.
I f a legislator sees no reason to interfere by issuing an obligating
prescription (a command or a prohibition) he simply keeps silent.
I know o f no perm issive legal rule which is not logically an exemp­
tion m odifying some prohibition, and interpretable as the nega­
tion o f an obligation. (Consider, for example, ‘The owner o f a
house which is rented, is prohibited from entering the premises,
except that he is permitted to enter in case o f . . .’). I f von W right
answers that in his opinion an act is permitted in the strong sense
as soon as the legislator has decided on his attitude, this being
neither to command nor to prohibit it, then he is confronted with
the difficulty o f having to say when a legislator has made up his
mind even though no law has been passed.
V o n W right’s curious reasoning w ould be more understandable
if w e took it to be concerned w ith fam ily life and not w ith legisla­
tion, despite the fact that he speaks o f legislative authority. It
does seem sensible to say w ith regard to children that they cannot
assume that whatever their parents have not prohibited is per­
mitted. One w ould hardly accept the plea o f a six-years-old boy
that he is permitted to smoke since his parents have not forbidden
him to do so. Because in this situation w e are dealing with per­
sonal directives and not norms, I shall not venture to discuss the
problem, except to hint that I am inclined to believe that our
definition o f ‘permission’ may be upheld in describing even these
relations. F o r the peculiar characteristic w hich distinguishes such
relations from legal relations is that children are subject to restric­
tive prescriptions that are rather indefinite and comprehensive in
scope. It is for this reason that children are not entitled to conclude
that an act is permitted merely because no express prohibition
against it has been issued.
V o n W right, in the place we have mentioned, arrived at the
conclusion that ‘permission’ means tw o different things. In the
weak sense an act is permitted when it is not forbidden; in the
122
 A N A N A L Y S I S OF T H E E L E M E N T S OF A NORM

strong sense an act is permitted when the legislator has considered

its norm ative status and decided to permit it. Later in the same
chapter he returns to the problem in order to explain in more
detail what strong permission is. He says that it is possible to dis­
tinguish between various kinds o f strong perm ission— permis­
sions, as it were, o f increasing degrees o f strength. T he weakest
kind o f strong perm ission occurs when the legislator does nothing
more than declare that he is going to tolerate the act. M y previous
criticism is relevant h ere: I know o f no legislative act which says
this. A stronger kind o f strong perm ission is said to occur when
the declaration o f tolerance is combined either with a prohibition
(addressed to others) against hindering or preventing anyone from
doing what is tolerated, or w ith a command to enable him to do so.
When a strong permission o f this kind occurs, the holder o f the
perm ission is said to possess, respectively, either a right or a claim.
It is tolerated that a man enjoys the use o f w hat he owns, and others
are forbidden to hinder or prevent his doing s o ; and it is tolerated
that a creditor receives what is due to him, and his debtor is com­
manded to enable him to do so.1 B y identifying ‘perm ission’ with
‘right’ and ‘claim’ , vo n W right, in m y view , confuses the con­
cepts. N either in everyday use nor as a technical legal usage does
‘perm ission’ to undertake an act mean the same as the possession
o f a right or a claim. ‘ Claim ’ is the correlate o f ‘obligation’ ; and
‘right’ expresses no modality at all, but rather a concept used in
the description o f a complex legal situation.2
Finally, von W right considers the idea that the declaration o f
tolerance which constitutes strong permission is meant by the
legislator as a promise o f his non-interference; and that the strong­
est kind o f strong perm ission is, accordingly, identical with
the constitutional guarantees o f the liberties o f the citizen.3 His
analysis and discussion o f these legal phenomena are, however,
manifestly inadequate. The idea o f a prom ise made by a legislator
to the citizen, creating a m oral obligation which binds the legis­
lator, is a figment o f the imagination and has long since been
abandoned in legal theory. T he constitutional guarantee o f certain
freedoms has nothing to do w ith promises, but is a restriction o f
the pow er o f the legislator, a disability w hich corresponds to an
immunity on the part o f the citizen. The legislator does not
1 Op. cit., pp. 88ff. 2 C f., On L a w and Justice, pp. 17 0ff.
3 Op. cit., pp. 9 1 ff.
1 23
 A N A N A L Y S I S OF T H E E L E M E N T S OF A N O R M

promise not to use a pow er which he possesses, but, rather, his

pow er (or competence) is defined in such a w ay that he cannot legally
interfere with the liberties guaranteed. A n y legislative act to this
effect w ould be unconstitutional and therefore null and void.
There is no need, however, to demonstrate any further the fallacies
o f this analysis o f constitutional law. Against this analysis it must
be maintained that the fact that certain liberties, that is, permis­
sions to do or to omit at w ill, are combined w ith constitutional
guarantees, in no w ay means that the term ‘perm ission’ occurs in a
new and stronger sense.
V o n W right’s fundamental view , that ‘perm ission’ is an inde­
pendent norm ative m odality not translatable in terms o f obligation
(commands and prohibitions), seems to me incomprehensible, in
view o f the w ay he interprets the term ‘perm ission’ in a subsequent
section o f his book, dealing w ith deontic logic. A fter a lengthy
discussion, permission to do C is said to be identical w ith the
negation o f an obligation to om it C , that is, exactly what I believe
it to b e .1
I conclude that von W right’s argument for his contention that
‘perm ission’ (to perform a certain act) cannot be adequately de­
fined as simply the negation o f obligation (to omit that act) is
unconvincing, and is rooted in fallacies about jurisprudence. I
w ould like to add that the table o f modalities given above is not
m y ow n invention but is a modified edition o f one elaborated by
H ohfeld and published in 19 13 ; 2 and that I have used it for many
years w ithout encountering any instance o f legal speech in which
the term ‘permission’ (and derived expressions) could not without
difficulty be interpreted as the negation o f obligation.

§28
Comments on the table o f legal modalities. 3
It should be noted that the term inology o f the table o f modalities
does not pretend to be identical w ith the term inology o f actual
legal speech. There simply does not exist an established and
1 Op. cit., pp. 136 ff., 139.
2 W esley N ew com b H ohfeld, ‘Fundamental L egal Conceptions as A pplied in
Jud icial Reasoning’, Yale L . R . , vol. 23 (19 13 ), p. 16, and Yale R .L ., vol. 26 (19 17 ),
p. 7 10 . These and other essays were reprinted after the death o f the author in Funda­
mental Legal Conceptions (1923).
3 Cf. On L a w and Justice, pp. 161 ff.
124
 A N A N A L Y S I S OF T H E E L E M E N T S OF A NORM

unambiguous usage. O n the one hand, modal terms are often am­
biguous : ‘to have a right to’ or ‘to be entitled to’ can designate a
claim as w ell as permission or competence. On the other hand, a
number o f different terms are used to designate the same m odality:
the modality o f obligation may be expressed not only by means o f
the w ord ‘ obligation’ and its derivatives, but also by means o f
w ords and phrases like ‘having to’, ‘it rests with (someone) to’,
‘to be incumbent on’ . The system presented by the table is, how ­
ever, not an arbitrary construction. It is rather, I should say, a
stylization o f actual usage, and it brings to light the fact that
we actually do operate with terms that are mutually linked by
negation and correlation. The adoption in practice o f a fixed
term inology in accordance w ith the table w ould be, o f course,
advantageous, but it is hardly likely. But even i f lawyers adhere to
traditional usage, an insight into the logical relations which con­
nect the various modalities w ould be o f use in the drafting o f
the law as w ell as in its interpretation.
It should be noted also that w e are dealing exclusively with
directive speech, that is w ith the speech in which norms are
expressed or brought to bear in exhortations directed to a norm-
subject (see § 12). Indicative speech about the existence or applica­
tion o f norms falls outside the scope o f our analysis. Therefore,
when I operate, in w hat follow s, w ith sentences like ‘A is under
an obligation to . . .’ , or ‘B is permitted to . . .’ they are always to
be understood to have directive meaning as when they are used in
norms or exhortations.

Obligation and Claim

In so far as legal norms are conceived as norms for deciding cases

that are brought before the courts and other enforcing authorities,
no problem arises as to the interpretation o f the term obligation.
It simply expresses the attitude o f being bound w hich is felt by
those w ho obey the law out o f respect for the authority o f the law.
But in so far as legal rules are conceived as norms o f conduct
addressed to the citizen— and they are usually drafted from this
point o f view — the problem does arise o f how the modality o f
obligation is to be interpreted. W hat does it mean to say that the
citizen is under the obligation, in certain situations, to exhibit
conduct C ? The legal relevance o f a norm addressed to the citizen
125
 A N A N A L Y S I S OF T H E E L E M E N T S OF A NORM

lies entirely in the fact that the same norm is a rule laying down
how the courts are to decide cases. It follow s, therefore, that we
need a statement o f what forensic consequences are involved in
the citizen’ s obligation, i f the interpretation o f that obligation is to
be adequate to actual legal conditions. It is not sufficient to say
that the conduct which the theme o f the obligation specifies is the
conduct which is desirable and expected in the eyes o f society.
What is legally relevant is not pious hopes but what is to be done
when the agent does not fulfil his obligations (given that those
conditions are satisfied which the secondary and tertiary rules
require). It w ould naturally be desirable to define ‘obligation’ in
such a w ay that the term was unam biguously bound up w ith a
definite forensic reaction to the non-fulfilment o f obligation. But
this is not feasible i f our stylized term inology is not to offend
intolerably against time-honoured usage. O n the one hand, w e
have to accept a use o f the term which does not discriminate
between cases in which the judicial reaction takes the shape o f a
sentence to punishment, a judgment im posing damages, and an
injunction to specific performance. On the other hand, it must also
be recognized that w e cannot speak o f ‘ obligation’ in all cases in
which one o f these three kinds o f reactions are in the offing. We
do not, for example, speak o f a breach o f obligation in those cases
in which damages are imposed according to the rules o f strict
liability or excusable impossibility. This is due to the fact, men­
tioned above in section 2 1, that not any disagreeable reaction is the
sanction o f a norm-creating obligation. I f the reaction (such as,
e.g., the im posing o f taxes or custom duties) is not felt as the
expression o f public disapproval, it is not felt to be backing up
any obligation. The same holds when damages are imposed accord­
ing to the rules o f strict liability or excusable im possibility; and
this explains w hy in these situations w e do not speak o f a corres­
ponding obligation— that is, an obligation to omit the dangerous
activity or to perform what is impossible. In such cases liability
to pay damages is not in the nature o f a sanction but functions as
a redistribution o f wealth which is for various reasons judged
desirable and legitimate.
According to w hat was said in § 26 (3), formulations expressing
obligation may be transcribed in terms o f commands and prohibi­
tions according to the follow ing rules. That an act is commanded
is the same as that there is an obligation to perform it; that an act
126
 AN A N A L Y S IS OF T H E E L E M E N T S OF A N O R M

is prohibited is the same as that there is an obligation not to per­

form it. T h erefore:

command C = def. obligation C

prohibition C = def. obligation not– C

from which fo llo w s:

command C = prohibition not– C

prohibition C = command not– C

B ’ s claim is the correlate o f A ’s obligation. W ho is B ? H e is the

person w ho satisfies two conditions: (i) it is he w ho exclusively
is able by bringing a suit to start the legal machinery in order to
obtain judgm ent im posing sanctions on A ; and (2) he must be at
liberty to bring his action or not as he likes.
When the creditor B at the day o f payment demands the amount
due o f his debtor A he makes w hat w e have called an exhortation
(see § 12), that is, he brings the legal norm (or the obligation
created by it) to bear on A by requesting him to live up to
the obligations created by a system o f norm s, in this case the
legal order, which both parties accept as binding. Anyone may
exhort A to fulfil his obligations but B w ho is interested in A ’ s
fulfilling his obligations, has, naturally, a special incentive to do
so.
In most cases an extra-forensic exhortation w ill be sufficient to
make A fulfil his obligations. I f this is not the case B , and only
B , can bring the norm to bear on A by bringing a suit and this is a
specifically legal phenomenon. It requires the existence o f a legal
machinery o f adjudication and enforcement and presupposes p ro ­
cedural rules according to which B and only B is em powered, by
bringing an action, to bring this machinery into action.
N orm ally the person w ho has the pow er to institute proceed­
ings is also the person immediately interested in the agent’s re­
quired behaviour. I f A has prom ised B to pay him £ 10 0 , against
consideration, then B is the directly interested party as w ell as the
person w ho has the pow er to institute proceedings. B u t it can
happen that the two are not the same person. A , for example, may
promise B to pay £ 10 0 to C . I f it is assumed that B alone can
institute proceedings, it w ill agree most w ith current usage to say
that B alone has a claim on A ; the definition formulated above has
been made on that basis. B , w ho possesses the claim, is called the
12 7
 AN AN ALYSIS OF T H E E L E M E N T S OF A N O R M

proceedings subject, and C , w ho is the directly interested party, is

called the interest subject.
That B has the pow er to institute proceedings means that he is
the one w ho is able to start the legal machinery m oving w ith the
aim o f enforcing A ’s obligation. It is another question whether B
is free to institute proceedings or not as he likes or whether his
exercise o f this pow er is itself legally regulated and his freedom
restricted by legal obligations. In private law B is usually free to
exercise this pow er as he sees fit. His claim is in this w ay combined
with the liberty to enforce it or not, since the purpose o f the law
is to provide him w ith an instrument for safeguarding his inter­
ests. This liberty is part o f w hat w e understand by private auton­
omy. It is part o f the current conception o f a claim and is therefore
included in our definition, with the purpose o f excluding from the
definition situations in which instituting proceedings is an official
act undertaken by a public servant in his function o f serving the
public interest, as is normal in criminal prosecution. The public
prosecutor is not at liberty to proceed or not as he chooses but is
legally obligated to exercise pow er in accordance w ith directions
laid dow n by law. It follow s that those obligations which are up­
held solely by public prosecution under the threat o f penalty are
absolute, that is, no claim corresponds to them with regard either
to the party whose interests have been injured, or to the state. Such
a delimitation o f the concept o f a claim sees to harmonize w ell
with current conceptions and usage.

Permission and ‘no-claim’

From the table w e see that perm ission to omit C means that there
is no obligation to perform C , that is, that C is not commanded.
It follow s that permission to perform C means that there is no
obligation to omit C , that is, that C is not prohibited. Therefore:

perm ission C = no obligation not– C = no prohibition C

I f an act is neither prohibited nor commanded it is called a liberty:

liberty C = no prohibition C & no command C = no obliga­

tion not– C & no obligation C .
Permitted conduct and liberties thus have the common feature
128o f not being prohibited. They differ in that a permitted act can be
 AN ANALYSIS OF T H E E L E M E N T S OF A NORM

prescribed (I am permitted to do m y duty), whereas an act which

is a liberty cannot be prescribed.
I f C is a liberty then not– C is also a liberty. Both form ulas say
the same thing, namely, that there is no duty with respect to either
C or n o t–C .
That an act is a ‘liberty’ is the same as its falling outside the
sphere o f legal norms. It is legally indifferent. N either its perfor­
mance nor its non-performance results in legal reactions.
M y liberty to go into the w oods, to w alk along the street, to
smoke a cigar, or to wear a red tie means, therefore, that I am not
in duty bound either to do or not to do these things; and that
others (B or any others in relation to w hom I have this liberty)
have no claim on me.
It is impossible to enumerate the liberties that a person has.
The sphere o f liberty is defined negatively as everything that is
not the object o f legal regulation.
Certain liberties are, however, frequently mentioned by name,
because they appear as exceptions; they are mentioned in such a
w ay that the liberty either pertains to some single person or per­
tains to everyone, being an exception to an otherwise general rule.
The first kind w e call ‘ special liberty’ or ‘privilege’, the latter
‘general liberty’ .
It is the property-ow ner’ s privilege to w alk on his land. H e is
at liberty to do so and has at the same time the claim on others
that they keep away. A ccording to the Danish law on the preserva­
tion o f natural amenities, people have the general liberty to walk
over private land along the seacoast.
Another reason for naming particular liberties is the fact that
the Constitution guarantees the citizen various liberties, as spheres
which are protected from the intervention o f legislation (religious
liberty, freedom o f the press).
When a liberty is com m on to all, as it usually is, its value to the
individual may be problematical. That I have a liberty, after all,
means only that others have no claim against me, that is, that no
legal obstacles can be placed in the w ay o f m y enjoying the liberty.
On the other hand the liberty does not give me a claim against others to
provide me with f ull opportunity to act as I please. I am at liberty to sit
on a bench in H yde Park. B u t this liberty is o f no use to me if the
bench is occupied. I have no claim on others that they give up
their seat to me. I f the liberty o f one person cannot be reconciled
129
 AN AN ALYSIS OF T H E E L E M E N T S OF A N O R M

w ith the liberty o f another, there w ill be a struggle. B u t there

exists a certain amount o f regulation o f this struggle and thereby
some protection for the one w ho first occupied a place, as a con­
sequence o f other claims which limit the means which may be
used in displacing another person. If, for example, I am sitting on
a bench, I certainly have no claim against others that they let me sit
there. But I do have a claim against others that they do not attack
m y person, and this has the consequence that (legally) I cannot
be driven aw ay from the bench by force.
In business there is extensive liberty to operate in the market
and to fight for customers. N o one has a claim against others to
leave his customers alone. But here, too, the legal order sets limits
to the means used in the struggle o f competition.

Subjection and Competence

Competence is the legally established ability to create legal norms

(or legal effects) through and in accordance w ith enunciations to
this effect. Competence is a special case o f power. P ow er exists
when a person is able to bring about, through his acts, desired
legal effects.
The norm which establishes this ability is called a norm o f
competence. It states the conditions necessary for the exercise o f this
ability. These conditions usually fall into three groups: ( 1 ) those
which prescribe what person (or persons) is qualified to perform
the act which creates the norm (personal competence); (2) those which
prescribe the procedure to be follow ed ( procedural competence); and
(3) conditions which prescribe the possible scope o f the created
norm with regard to its subject, situation, and theme (substantial
competence). A m ong procedural conditions there w ill usually be
one which prescribes how the norm is to be communicated to its
subjects, or at any rate how it is to be prom ulgated, that is, how
it is to be made public in such a w ay that the subjects o f the norm
have the opportunity to obtain inform ation about the norm i f they
want to.
Those enunciations in w hich competence is exercised are called
actes juridiques, or acts-in-the-law, or, in private law, dispositive
declarations. Exam ples are: a promise, a will, a judgment, an
administrative licence, a statute. A n act-in-the-law is, like a m ove
in chess, a human act which nobody can perform as an exercise o f
130
 AN A N A LY SIS OF T H E E L E M E N T S O F A N O R M

his natural faculties. N orm s o f competence are, like the rules o f

games, constitutive. (See above, § 14.)
Since a norm o f competence prescribes the conditions for the
creation o f a norm it is a tautology to say that i f an attempt is made
to exercise competence ultra vires (outside the scope o f the com ­
petence) no legal norm is created. This is expressed by saying that
the intended act-in-the-law is invalid or that non-compliance with
a norm o f competence results in invalidity.
T he pow er or competence o f a person must be distinguished
both from a liberty to exercise his pow ers as he pleases (but only,
o f course, intra vires) and from a duty to exercise it along certain
lines. I f there is such a duty there exists a norm o f conduct, w hose
theme is the w ay in which the competent person is to exercise his
power. It is important to understand this distinction between the
norm o f competence and the norm o f conduct which regulates
the exercise o f this competence. Whereas exceeding the norm o f
competence, as w e have said, results in invalidity, violation o f the
norm o f conduct does not affect the validity o f the acte juridique
but involves a liability, like other violations o f obligation. Such
interacting o f norms o f competence and norms o f conduct plays
an important part in legal practice. A n agent, for example, may be
bound by his principal to exercise authority within certain limits,
but the principal may nevertheless be unable to plead this, viz.,
that he has made such restrictions, against a third party w ho
has relied on the agent’ s authority. A restraint which was privately
placed on the ostensible authority o f the agent and ignored by him
w ill not exonerate the principal from liability, unless, o f course,
its existence is know n to the third party o f the transaction. But
the exercise o f pow er in disregard o f these restrictions exposes the
agent to an action by the principal. A similar rule applies to pow er
in public law. Pow er is not assigned to public authorities to be
exercised as they choose, but only in accordance w ith established
rules or presupposed general principles. Here, too, it is frequently
possible to distinguish between their competence and their duties
w ith regard to the exercise o f this competence; overstepping these
norms results, not in invalidity, but in criminal or civil liability.
I f the law were always carefully prepared and precisely drafted
it w ould not be difficult to decide whether a given rule were
intended as a norm o f competence (resulting in invalidity) or as a
norm o f conduct regulating the exercise o f this pow er (resulting
13 1
 AN ANALYSIS OF T H E E L E M E N T S OF A NORM

in liability). B u t unfortunately such is not always the case. If, for

example, a statute empowers the President o f the Board o f Trade
to regulate the import o f some commodities after previous sub­
mission o f the matter to the M inister for Agriculture, it is not
clear whether the required submission is intended as a restriction
o f competence with the result that such regulation is invalid i f the
submission is not made, or whether it is intended only as an
obligation prescribed in a norm o f conduct w ith the consequence
that the President o f the Board o f Trade incurs a liability if he has
not made the submission. This is a question o f interpretation to be
decided by the usual methods.
Subjection is the correlate o f pow er or competence. The sub­
jected person B is determined as anyone w ho according to the
norms defining the substantial scope o f A ’ s pow er may be the
subject o f a norm created by A . This term is linguistically aw k­
ward, since it is often used in a pejorative sense. I am here using
it w ithout any such implication. Citizens are ‘subjected’ to the
pow er o f the legislator, inheritors to the pow er o f the testator, the
party m aking an offer to that o f the recipient, the successor to that
o f the transferror— all regardless o f whether the particular dis­
position binds the subjected party or creates claims for him.
It is a conspicuous feature o f the law o f modern societies that
the norms o f competence in force can be divided into two distinct
categories, different in their content and in the purposes they
serve in the life o f the com m unity.1
On the one hand there are those rules o f competence which
create the pow er we call private autonomy. They are characterized by
the follow ing features. In the personal sphere they create a pow er
for every normal adult individual. This pow er is in all important
respects limited to the individual’ s ability to incur liabilities and
to dispose matters concerning his ow n rights. When the disposi­
tions o f tw o or more individuals are coordinated they are enabled
to ‘legislate’ by contract as far as their mutual relations are con­
cerned. This pow er is not tied up w ith a duty to exercise it, or to
exercise it only in a certain way. The individual is free to decide
whether, and how, he w ill make use o f his autonomy. The social
function o f private autonomy is to enable the individual to shape
his ow n legal relationships, in accordance w ith his ow n interests,
within the fram ew ork o f the legal order. The pow er itself in
1 Dansk Statsforfatningsret [Danish Constitutional L aw ], vol. I, § 5.
132
 AN A N A L Y SIS OF T H E E L E M E N T S OF A N O R M

relation to a certain object is not a ‘right’ but is part o f a transfer­

able right. W ith the transference o f the right the pow er is lost
to the successor. The pow er that w e are here considering may
therefore be said to be unqualified (everyone has it), autonomous (it
is used to bind the competent person himself), discretionary (it is
exercised freely), and transferable (it can be transferred to a succes­
sor).
O n the other hand, there are the rules o f competence that
create w hat w e call a public authority. T h ey have the follow ing
features. They create a pow er only for certain qualified persons.
The required qualification consists in a designation in accordance
w ith certain rules o f law : in Denm ark, Ministers have their p ow er
because o f their nomination according to Article 14 o f the Con­
stitution, members o f Parliament because o f their election accord­
ing to the Polling A ct, and the K in g because o f his hereditary
right to the throne according to the A ct o f Succession. The sub­
stance o f this pow er is a capacity to create rules that bind others
(statutory enactments, judgments, administrative acts). The pow er
is not granted w ith a view to its being used by the competent
person freely and at his convenience. Its exercise is a duty, a
public office in the widest sense, and when exercised it is a duty to
use the pow er in an unprejudiced and impartial manner, for the
furtherance o f certain social purposes. These duties are more than
m erely m oral duties; they are hedged in by sanctions and controls
o f various kinds. The pow er’ s social function is to serve the
interests o f the com m unity— w hat is called the ‘common w eal’ .
Public authority is never part o f a right and is therefore never
transferable. A t most, the exercise o f pow er may be delegated to
other persons, with the holder’s ow n pow er left untouched. The
competence which we are here considering may therefore be
characterized as qualified, heteronomous, in the public interest, and non-
transferable.
The distinction between private autonom y and public authority
constitutes the basis o f the traditional distinction between private
and public law. Public law may be defined as the law which con­
cerns the legal status o f the public authorities.

Immunity and D isability

A s we have seen, immunity and disability are negative modalities.

133
 A N A N A L Y S I S OF T H E E L E M E N T S OF A N O R M

What has been said about liberty and ‘no-claim’ applies analo­
gously to them. A s negative terms they cover everything not sub­
ject to legal p o w er; therefore it is not possible to enumerate and
name specific immunities. E v e ry person enjoys im munity with
regard to every other person, provided that the other person is not
furnished with pow er in relation to the first. Som e specific ‘rights
o f im m unity’ are, how ever, explicitly recognized, since they
appear as exceptions. F o r example, it is said that foreign ambassa­
dors enjoy imm unity from the courts, and that citizens enjoy
immunity from the legislature in those areas in which the constitu­
tion limits its competence.

The legal modalities have, until now , hardly been considered

important as a subject o f study. Usually ‘legal relations’ are merely
divided in analysis into the correlative concepts o f duty and right.
This analysis is, however, unsatisfactory.
First o f all, it has not been realized that the subject o f the analysis
is really the language o f the law, and that the different modalities
simply represent linguistic vehicles through which the directive
content o f legal rules is expressed. O n the contrary, duties and
rights have been regarded as metaphysical substances created by
certain facts and creating in their turn legal effects. This meta­
physical w ay o f considering duties and rights to be substantial
entities largely prevails in Continental and Anglo-Am erican legal
thinking, and has had unfortunate results fo r the treatment o f
practical legal problems.
Secondly, the duty-right division is too superficial. The term
‘right’ covers such heterogeneous concepts as claim, liberty, pow er
(competence) and im m unity; and ‘duty’ is not differentiated
from the other passive modalities. The incompleteness o f the duty-
right analysis has caused the confusion which characterizes
legal language, both in legislation and in the theoretical study o f
law.
Finally, it is an error to introduce ‘right’ as the correlate o f
‘duty’ . The concept o f a right is a systematic one in which a num­
ber o f legal rules are united. It covers a collection o f legal effects
each o f which may be expressed in the customary modalities. The
right o f ownership, for example, includes a set o f claims, liberties,
competences and immunities. A ‘right’ (such as ownership, the
different ju ra in re aliena, copyright, etc.) is not a legal modality
134
 AN A N ALYSIS OF T H E E L E M E N T S OF A NORM

used in the expression o f a particular legal rule, but rather a theo­

retical construct which serves the systematic presentation o f the
law in force.
T o m y knowledge, the Am erican, W esley N ew com b H ohfeld,
was the first to investigate the problem o f the legal modalities
(Fundamental Legal Conceptions, 19 23).1 T he account given here is
largely inspired by H ohfeld, particularly in the idea that the
modalities are connected by the logical relations o f contradiction
and correlation. M y ow n attitude, how ever, differs from his. H oh­
feld makes no attempt to interpret the modalities in terms o f their
legal functions, and he does not seem to realize that the modalities
are really nothing more than linguistic tools o f the law.

§ 29

I t is possible to interpret the legal modalities in such a way that they have,
to some extent, an application to non-legal normative discourse.
The preceding section dealt exclusively w ith norm ative modali­
ties interpreted in relation to legal speech. I now turn to the ques­
tion o f the extent to which the table o f modal expressions can be
interpreted as covering non-legal norm ative speech also. The
follow in g observations are prim arily intended to apply to moral
speech, but they may very w ell also apply, mutatis mutandis, to
speech in which other conventional norms, the norms o f games
and the like, are formulated or applied.
It is evident that non-legal norm ative discourse is on the whole
more simple than legal discourse. (As w e noticed earlier, i f a system
contains a judicial authority it is included under legal system s; see
above, § 22 a). This is so, first o f all, because those m odalities
which appear in the norms o f competence do not apply to static
systems which lack legislation and other kinds o f norm-creating
activity. T o this there is, however, an important exception. A
promise is also a moral phenomenon which is based upon con­
ventional-moral norms o f competence that create a ‘private
autonom y’ similar to a legal institution but o f a less form al and
precise character. T he m odern discussion o f the logical nature o f
the prom ise w ould, I believe, have been m ore simple and illumin­
ating i f more attention had been paid to the close relationship
between moral and legal institutions. It w ould have been more
1 See above, p. 12 4 note 2.
135
 AN ANALYSIS OF T H E E L E M E N T S OF A NO R M

apparent, first o f all, that the utterance o f a prom ise is an act o f

directive and not indicative speech, that it is not a piece o f in for­
mation about the prom isor’s intentions, his volitional disposition
or about any other past, present or future state o f affairs; and,
secondly, that the various acts which constitute the ‘prom ising
gam e’ — m aking a promise, receiving it, fulfilling it, breaking it—
are not natural acts but acts constituted by the norms o f compe­
tence which create the ‘binding force’ o f the promise, just as
moves in chess are constituted by the norms o f chess.1
O f the modal expressions found in norms o f conduct it is
obvious that ‘ obligation’ and ‘perm ission’ occur also in moral
speech. It is more doubtful whether the same is true o f the modality
o f ‘claim’ . It has often been thought, mistakenly, that the con­
ception o f a claim (and o f rights as the basis o f claims) belongs
in the province o f law, whereas m orality know s o f obligations
only. But it seems natural, especially in the case o f a promise, to
say that, through the utterance o f the promise, the promisee
acquires a claim on the prom isor for the fulfilment o f the promise.
A n d there are other situations in which m oral judgments are for­
mulated in terms o f claims, demands and rights. But it is certainly
true that a moral claim is different from a legal one and it appears,
in some respects, to be a w eaker variant, displaying only a faint
reflexion o f the qualities o f a legal claim. I shall mention four
respects in which this is the case.
F irst o f all, i f a claim is to be advanced with w eight it requires
a considerable degree o f precision. W hoever makes a claim must
be able to say what he has a claim on, defining its subject matter
qualitatively and quantitatively. M oral norms and obligations,
however, are often formulated so vaguely that the conception o f a
corresponding claim appears hardly adequate. I f one takes it as a
m oral obligation to love one’ s neighbour as oneself, to show
mercy, or to give alms, it seems hardly feasible to construe the
corresponding claims o f definite persons in terms o f a certain
amount o f love, mercy or alms. L o v e knows o f no quantum satis.
This is especially true o f a morality which (like the Christian) is
characterized by ideals o f perfection and unrealizable demands—
which set exalted tasks, requiring unending efforts— that is, a
m orality o f the type w e shall shortly characterize as ‘idealistic’ .
It is less true o f a morality which (like the Jew ish) is marked by
1 See above, p. 53, note 1.
136
 AN AN ALYSIS OF T H E E L E M E N T S OF A N O R M

detailed prescriptions and demands o f strict observance, that is,

a m orality which w e may call ‘legalistic’ .
It is easy to see why. prom ising in particular has given rise to
the idea o f m oral claims. F o r in this situation definite and precise
expectations are caused in the promisee in accordance w ith the
declaration.
Secondly, it is the possibility o f instituting proceedings and
enforcing a legal claim w hich makes it what it is— a claim ; and this
has no counterpart in m oral life. A legal claim is, as w e have seen,
in one part an exhortation, in so far as it calls on the other party
to fulfil his obligations under a given norm ative order. A moral
claim may have the same function. Bu t standing up for one’s
rights and claiming their fulfilment is more than mere exhorting.
A claim is marked by the latent threat implied in the possibility
o f instituting proceedings. This element is completely lacking in
moral claims.
Thirdly, the possessor o f a legal claim has the pow er to dispose
o f it in a w ay which has no counterpart in moral affairs, apart,
perhaps, from claims based on promises. The legal creditor may
renounce his claim w ith the result that the debtor’s obligation is
extinguished. Furtherm ore, a legal obligation is usually actualized
only if and only when the creditor presents his claim. A s long as
this does not take place the debtor incurs no liability by not per­
form ing on his ow n initiative. M oral obligations do not depend in
the same w ay on the behaviour o f the interested party. A moral
obligation to love one’ s neighbour or to show m ercy is not extin­
guished through renunciation, and no advancing o f a claim is
required to make it actual.
Finally, in some cases in which it is usual to speak about moral
claims or rights there is hardly any corresponding obligation at
all. This is so, for example, when human rights are proclaimed.
When it is said that everyone has the right to education, the right
to w ork, and the right to a standard o f livin g adequate to the
health and well-being o f him self and his fam ily, no one can be
pointed out as the subject o f a corresponding obligation. The
intention o f such declarations is to say that a social order which
does not give everyone these rights is m orally unjustifiable, and
that therefore i f actual conditions fall behind the ideal everyone
is under the obligation o f w orkin g to promote a better w orld. The
claim involved in human rights is then nothing more than the
137
 AN A N ALYSIS OF T H E E L E M E N T S OF A N O R M

expectation that everyone w ill do his best to further an evolution

in the direction indicated by the ideals o f human rights. This
expectation is, however, so vague that it can hardly be recognized
as a claim.

138