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Contributions from the 1st Genova-Slavic Seminar in Legal Theory

A legal orderʼs supreme legislative authorities

María Cristina Redondo
p. 33-60
Translation(s):
Las autoridades legislativas supremas de un orden jurídico

Abstract

The first part of this article is about the rules that define a legal order’s supreme legislative authority. In this first part, the article also dwells on several distinctions such as those between norms and meta-norms, legislative and customary rules, and constitutive and regulative rules, all with the objective of determining which of these categories the aforementioned rules belong to. The conclusion is that the basic rules defining the supreme legislative authorities of every existing legal order are necessarily constitutive meta-norms and have a customary nature. The second part of this article takes into account the different possible contents of the ultimate rules that define legislative authority. On this basis, four models of legal order and legislative authority are distinguished: those corresponding to absolute authority and to moral authority, and those corresponding to the rule-of-law state and to the constitutional state. In this regard, several considerations are offered that, on the one hand, single out the specific notion of authority accepted within the constitutional state and, on the other, offer a specific critique of the theoretical distinction between constitutive and constituted authority. According to the analysis provided in this article, every authority is a constituted authority. In particular, supreme legislative authorities are constituted by customary constitutive norms that fall beyond the reach of the authorities themselves and do not depend on the decision or will of any particular individual.

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Excerpt

In open access from October 2018.

Outline

1 Introduction
2 Criteria of validity
3 The ultimate criteria of legal validity
4 The ultimate norms of an existing legal order
5 The ultimate norms on legislative authority and the rule of recognition
6 Power-conferring and regulative meta-norms
6.1 A brief digression on different kinds of norms: constitutive versus regulative
6.2 Two kinds of constitutive norms, two kinds of social reality: the unintentional and the intentional creation of social reality
7 Four models of legal orders and legislative authority
7.1 The model of absolute authority
7.2 The model of moral authority
7.3 The rule-of-law model of authority
7.4 The constitutional model of authority
8 Some considerations on the constitutional model of authority

First lines

1 Introduction

The first part of this article revolves around the idea of the norms or rules (two terms I will be using interchangeably) on which basis a legal order’s supreme legislative authorities are set up. Following Alchourrón and Bulygin, I will assume that a legal order is a sequence of legal systems.

It is therefore in order to clarify how I understand the idea of authority and why I will concentrate on the legislative kind. Legal authorities are agents that have the power to decide for other agents. These decisions are usually made by creating, eliminating, or modifying legal norms, that is, by way of actions that introduce a change in the legal order. However, that need not necessarily be the case. In a strict sense, being a legal authority or exercising legal authority does not presuppose or imply a power to modify the legal order. Authorities seek to guide other agents’ behavior while excluding options that restrict their autonomy. In other words, they seek to replace the...

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References

Bibliographical reference

María Cristina Redondo, « A legal orderʼs supreme legislative authorities », Revus, 29 | 2016, 33-60.

Electronic reference

María Cristina Redondo, « A legal orderʼs supreme legislative authorities », Revus [Online], 29 | 2016, Online since 10 October 2018, connection on 23 October 2017. URL : http://revus.revues.org/3600 ; DOI : 10.4000/revus.3600

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About the author

María Cristina Redondo

Independent Researcher at CONICET (Argentina). Associate Professor of Law at the University of Genoa (Italy).

Address: Tarello Institute for Legal Philosophy, Via Balbi 30/18, Genoa 16126 (Italy).

E-mail: cristina.redondo@giuri.unige.it

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Copyright

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