In Concreto Antinomies, Predictability, and Lawmaking

Published date01 December 2020
DOIhttp://doi.org/10.1111/raju.12299
AuthorGuglielmo Feis
Date01 December 2020
© (2020) John Wiley & Sons Ltd.
Ratio Juris, Vol. 33 No. 4 December 2020 (399–429)
In Concreto Antinomies, Predictability,
and Lawmaking
GUGLIELMO FEIS*
Abstract. This paper investigates whether or not cases of in concreto antinomies (ICAs for short,
also called indirect antinomies, accidental antinomies, normative conflicts due to the facts,
predicaments, or paranomies) can be predicted. I distinguish two main theoretical positions:
Prodetection” argues that we can predict in concreto antinomies; “unpredictability” argues that
we cannot predict them.
I exemplify the two positions by relying on a disagreement found in the literature; then, after
reviewing that disagreement, I (i) provide arguments for both positions; (ii) highlight the prob-
lematic issues for a definition of in concreto antinomy based on conceptual independence; (iii)
point out some problems in Martínez Zorrilla’s threefold conception of normative conflicts; and
(iv) advocate the need to introduce a case for “practically unpredictable” normative conflicts.
1. The General Question: Are In Concreto Antinomies Predictable?
Legal systems care about rationality and coherence. Antinomies are a problem for
both. Hence, legal systems take due care to (i) avoid the occurrence of antinomies and
(ii) solve them, should they occur. One of the best ways to avoid antinomies is to be
able to predict them in order to avoid their occurrence.
This is a crucial feature for drafting new laws. Lawmakers try to predict possible
conflicts in order to write law that will not be conflicting (in particular, they want to
avoid conflicts with constitutional principles, as these conflicts are likely to invali-
date their proposed new norms).
We have various sorts of antinomies. Here I shall focus on so-called in concreto
antinomies (ICAs for short) because the issue of their predictability is a contested
one.1 In concreto antinomies are antinomies that cannot be detected if we rely on the
following procedure:
1 See at least Alchourrón 1981, 1991; Burazin 2014, 2018; Chiassoni 2007; Guastini 2011a;
Hamblin 1972; Hamner Hill 1987; Malgaud 1965; Martínez Zorrilla 2007, 2011a, 2011b; Munzer
1973; Sampaio 2018; Zucca 2008. In concreto antinomies are also referred to as indirect antino-
mies, accidental antinomies, conflicts of norms due to the facts, or paranomy.
* I would like to thank Alice Borghi, Francesca Poggi, Luka Burazin, Chiara Valentini, José
Moreso, Andrej Kristan, David Martínez Zorrilla, Vito Velluzzi, Jaap Hage, Federico Faroldi, Ian
Carter, Jacopo Tagliabue, Samuele Chilovi, Dario Mortini, Valentin Jeutner, and two reviewers
for comments and suggestions on previous versions of the paper and/or earlier presentations
of some of its main ideas. I should finally like to thank the journal’s English editor, Filippo
Valente, for his copyediting.
Guglielmo Feis400
Ratio Juris, Vol. 33, No. 4© (2020) John Wiley & Sons Ltd.
(i) Take the norms of a corpus.
(ii) Interpret them so that their meanings are settled.
(iii) Consider all possible normative pairings of interpreted norms within the
corpus.
(iv) Analyse whether, for any of the pairings, there is a certain specific situation S
that is governed in different incompatible ways by the paired norms (i.e., N1
and N2 govern the same S in incompatible ways).
This difficulty in detecting such particular antinomies is due to two peculiar features
of in concreto antinomies: (i) the conflicting norms range over unrelated properties; and
(ii) factual considerations are relevant in judging the incompatibility of these unrelated
properties. Given the method above, (iv) will fail. In fact, the norms in the pairing
range over different situations S and, given the (i)–(iv) procedure, no antinomy will
be easily detected.
This issue cannot be solved unless we better specify what “incompatible ways”
means in (iv). There are at least two different approaches to spelling out what “in-
compatible ways” means.2 According to what we may call the consequence-based ap-
proach, we have an antinomy when incompatible legal consequences are triggered;
according to what we may call the modality-based approach, antinomies are cashed
out by relying on pairings of incompatible modalities (such as prohibition and per-
mission or others we can develop in deontic logic).3
In order to reconstruct a debate on predictability, we can contrapose two posi-
tions: “prodetection” and “unpredictability.”4
According to “prodetection,” in concreto antinomies are not special and do not
differ from “classic” antinomies as far as their predictability is concerned: They can
be easily detected “on paper,” i.e., before they actually occur. On the other hand, for
2 Nothing in this paper hinges on offering a better characterization of the two models (conse-
quence-based and modality-based) of antinomy and on whether or not the two models are exhaus-
tive. That is a topic for another paper. Quick spoilers: (i) The two models are not exhaustive;
there’s at least a Hohfeldian option that can be considered as a third model; (ii) the two models
cannot be reduced to each other despite the fact that deontic modalities can feature in legal
consequences and despite the fact that you can consider deontic modalities as a kind of legal
consequence. If you stick to the two different models, there are some antinomic scenarios that
you can deal with on one model but cannot treat with the other.
3 The legal consequence-based approach relies on incompatible legal consequences to identify
the antinomy: see Alchourrón and Bulygin 1971; Chiassoni 2007; Guastini 2011a, 2011b; Martínez
Zorrilla 2007, 2011a, 2011b; Ross 1958. The modality-based approach relies on specific deontic
modalities to figure out an incompatibility; such an approach is found, e.g., in von Wright 1963
and is widespread in deontic logics. It is also found in legal theory: see, e.g., Conte 1962; Ferrajoli
2007; Gavazzi 1959; Jori and Pintore 2015. Please note that the idea of divorcing the two ap-
proaches along the lines of legal scholars vs. logicians is desperate. Ross himself uses the modal-
ity-based approach to sort out norms of competence in Ross 1958, 1968. Kelsen reasons in terms
of modalities (Sollen) as well as legal consequences. A further approach could be identified by
relying on the Hohfeldian notion of legal opposition. This complexity will be ignored for the
purposes of this paper, but see Feis 2019a for more information.
4 I shall use predictability, foreseeability, and detection (in advance) as conceptually equivalent.
Detection might be confused with identification. Here we are dealing with an in advance detection
and not with an ex-post detection.

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