En torno de la Teoría de Alf Ross

Abstract

In this article the author discusses Ross's conception of law. The first objection arises in connection with the use made of the term directives in Ross's book On Law and Justice. The Scandinavian jurist gives this name to utterances with no representative meaning made in order to influence another's behavior. When the generic term utterance refers to norms of conduct, it seems to suggest, from the beginning, that normative judgments, far from imposing duties or granting rights merely express the desire to influence another in such and such a way, not because he must act thus or has the right to do so, but because whoever makes this utterance wishes to affect in some way the others behavior. Norms cannot be put on the same level as mandates, petitions, suggestions and desires, since there are no reasons to maintain that when the legislator makes a law or a court of law passes sentence, they are doing something which may be compared to the formulation of a desire or to the expression of a demand.

Neither is the author of this article in agreement with Ross's thesis on the interpretation that must be put on the sentences which appear in a textbook of law, for example in treatises on civil or administrative law. If, in a manual of Mexican Civil Law, we should find the words: "He who discovers treasure in another's land has the right to keep for himself half of the treasure, and is obliged to surrender the other half to the owner of the property", such words clearly have no descriptive sense, since they do not describe the conduct of people who have discovered treasure, nor do they hypothetically describe the conduct of all those who may have that good fortune. The judgment expressed by that sentence is in one sense attributive of a right and in another, impositive of a duty. Therefore, one is not dealing with an assertions, since the words which make it up do not express, as Husserl would say, a matter of fact, nor do they express the actual behavior of those who discover treasure. If, on the other hand, we say: "In accordance with article 877 of the Civil Code of the District and of Federal Territories, 'he who discovers treasure on another's land has the right to keep for himself half of the treasure, and is obliged to surrender the other half to the owner of the property' ", this expression will have the force of an assertion. But it is one thing to declare that an article in a code says such and such, and quite another to express the norm contained in that article.

The third question is this: can we really consider chess, or any other game as a "model" or "explanatory pattern" of the legal order?

The rules of games cannot be used as the starting point for a doctrine of what law is, because they do not generally come within the scope of the legal, but within that of social conventions. Even when the legislator occasionally incorporates those rules into his system, transforming them into legal precepts, such a conversion is somewhat exceptional and is only brought about by a legislative decision.

Ross argues that the game of chess may be taken as a very simple model of what is called social phenomenon, and maintains that .one should only talk of community life when individual behavior is interrelated according to certain rules. There is no doubt that the norms of law establish inter-subjective relations to the same extent as the rules of a game. What is doubtful, however, is the assertion that any pattern of behavior which leads to relations of that kind should be, eo ipso, legal. For these relations have a different significance in the sphere of law than in that of morals and social conventions. Bilateralness, which is an exclusive characteristic of the legal norms, is encountered in the rules of games only when the legislator has incorporated those rules into the system of laws in force. In that eventuality, however, they cease to be social conventions and become norms of law. This does not rid them of the quality of inter-subjectivity outlined by Ross, but whilst in the field of legal norms we always encounter a claimant and an obligor, in that of social conventions the duty of the obligor is not a co-relative of the right of another person, but simply of an expectation or hope.

Ross says that when he speaks of the rules of chess he only wishes to refer to those of an elementary nature which prescribe the movement of the pieces, the form of capture, etc., and not to those which govern the theory of the game. For him the first are directives on the way in which one should play; he classifies the second as technical rules which are expressed in hypothetical statement. This dichotomy presents a problem, for there is a fundamental difference between the rules of conduct, which are either prescriptive or attributive in content, and the rules of art. However, the first express, in the terms of Rudolf Laun, "a conditioned duty"; the other, "a conditioned necessity". If we allow the comparison used by Ross, the most important rules of the game, that is the theory of chess, which serve as a base for its developments, cannot work in the same way as an explanatory pattern of legal precepts, because, even when these precepts too have a hypothetical structure, in each case they have an implicit normative significance which is fundamental to them.

New difficulties arise when we recall what Ross has written on the way in which the rules of that game can be established. As the same ones are not always adopted, the question has to be referred to those rules which govern a particular game between particular persons. But for us to know which these may be, it becomes essential to investigate in each case which ones the players feel bound by. What would happen if we did the same thing in order to establish which legal precepts were in force? When dealing for example with a contract, it would not be sufficient to inquire into the normative consequences of the transaction; one would also have to ask the contractors: "Do you consider yourselves bound by these consequences?"

The relation between norms and legal phenomenon is analogous, according to Ross, with that between the rules of chess and certain actions which, in the light of the rules, are interpreted as moves within the game. From this he concludes that the expression "valid law" refers to the normative ideas as a whole, which act as a system of interpretation for concrete legal phenomena, when the norms which govern them are in fact observed, and those who observe them feel bound by them.

Ross says that expressions like "Swedish law", "Danish law", etc., refer to individual set of norms comparable with those called "the rule of games". The mistake made by many jurists, Ross continues, is that they forget that what are termed "normative systems" are "facts" and nothing else. In describing these facts one must be very careful not to confuse the theoretical -descriptive attitude with the completely different one which is manifested in moral approval or disapproval of a particular established system. According to Ross the basic question for a jurist is how one can distinguish one individual legal system from other individual sets of norms. In the case of law its norms all refer to actions or omissions by particular people. Who are they, and with what sort of conduct are we dealing?

Ross divides legal precepts into norms of conduct and norms of competence and he maintains that such precepts, rather than referring to individuals, refer in fact to the organs of jurisdiction. He concludes from this that "legal phenomena", as "equivalent" to norms, are nothing more than the sentences of the judges. In other words, the assertion that a norm is valid law presupposes that there is some correspondence between the system to which the norm belongs and a certain social reality, the application of a particular norm by courts of law insofar as they fell bound by it. Further, in order that the above assertion may be verified, it must fulfill two conditions: a) The statements concerning valid law at the present moment should not refer to the past; b) neither should they refer to the far distant future. Such statements are not absolute; rather they are "predictions" of what courts of law will do in certain circumstances.

If we accept these ideas we will have to say that these laws drawn up by the legislator which have not yet been applied by the courts are not legal norms, because they have no efficacy, nor have they affected in any way the actions of those responsible for the working of the legal system. Moreover, before their practical application, one cannot know whether or not the judges will feel themselves bound by the laws. On the other hand, it is certain that when he publishes them the legislator does not pretend to be a prophet, that is, to make predictions on the future conduct of the judges. The point of such a legislative task is not to sketch probable actions, but to link up, in the necessary logical form, the facts which fulfill the legal suppositions to certain rights and duties. And these do not refer only to the conduct of the judges but also to the behavior of individuals.

As Eugenio Bulygin showed in his article "The Concept of Valid Law in AH Ross" (Revista del Colegio de Abogados de la Plata, 1963), the Scandinavian jurist gives two different replies to the question of what should be understood by the application of a norm. At one point he maintains that merely to observe the external conduct of the judge is not enough for us to determine which norms he is applying, since we do not know if he feels bound by the precepts which are the object of the act of application. But in another passage he declares that the application of a legal precept can only mean that, in decisions in which the conditioning facts indicated by the norms are taken as proved, this is the "essential part" of the reasoning on which the sentence is based, thus converting that norm into a determining factor of the conclusion which is reached. But then, Bulygin observes, "it is in no way necessary that the judge should feel bound by the norm or that he should live according to it as a social obligation; it is sufficient that he should invoke it as a foundation for his decision" (Page 10 of the said article). Bulygin says that "by virtue of the necessity of a feeling of social obligation, Ross's interpretation of valid law becomes not only inadequate for the discussion of certain norms, generally considered legal, but it also leads to contradictions within Ross's theories. His second answer, on the other hand, makes it unnecessary to indulge in judicial introspection, and permits one to talk of legal norms in force, even though the judges may be motivated by fear or the desire to favour one of the parties; thus making no reference to the feelings of the judge but rather to the foundation of the sentence", (Page 11 of the said article). Even when we say that the second of these opinions is preferable, it clearly has the defect of restricting the problem entirely to legal decisions. For the rest, ⎯the fact that the judges base their sentences on legal norms⎯ is a good proof of the logical priority of the adduced reasons, and consequently a proof that the validity of the applied norms does not derive from the fact of their application, because the latter presupposes that the norms on which they are based are valid law.

That Ross is aware of all this is demonstrated, in our opinion, as much by his discussion of psychological realism and behaviorist realism as by the eclectic conclusion which he draws. In this conclusion he asserts that none of those doctrines can in isolation resolve the problem of legal validity, and that this can only be explained by means of a synthesis of the two views.

It is useful to stress the fact that though supporters of both may be convinced, by virtue of the purely factual nature which they attribute to it, that the legal system can and must be explained descriptively, none of the adherents of realism, in its two basic versions, can dispense, try as they might, with the traditional concepts of norm, right and legal duty nor can they free themselves completely of the normative associations which they contain.