Legal Power: The Basic Definition

• Date: 01 June 2017
• Published date: 01 June 2017
• Author: David Reidhav,Lars Lindahl
• DOI: http://doi.org/10.1111/raju.12158

Legal Power: The Basic Definition

LARS LINDAHL and DAVID REIDHAV*

Abstract. The concept of legal power (often called legal competence) is important in

the law since, with regard to actions havinglegal effect, the “exercise of legal power”

delimits those actions for which manifestation of intention to achieve a legal effect is

essential for the effect to ensue. The paper proposes a definition that captures this

feature of legal powerand marks it off from “direct effect,” as well as from permissi-

bility and practical ability to achievethe legal effect. This analysis of power is limited

to the “immediate” legal power of a physical person characterized by the power-

holder achieving a legal result by the power-holder’s own behaviour (not by repre-

sentatives acting on behalf of the power-holder). It is argued that in the literature on

power the concept of legal power is frequently construed in such a way that it

becomes either too broad or too narrow.

1. Introduction

1.1. Subject Matter

An important task in jurisprudence is the analysis of central legal concepts com-

mon to different systems. Different words, such as owner,Eigent€

umer,propri

etaire,

can have a common core of meaning representing a core concept that various sys-

tems have in common. To promote an understanding of such concepts is the task

of universal jurisprudence, in the sense of Bentham (1970a, 294).

In the example of ownership, if the analysis is formulated in English, there is a

word, owner, more or less synonymous to Eigent€

umer,propri

etaire, and so on which

is a suitable candidate as a name for the relation to be analyzed. As a result, the

jurisprudential analysis can be formulated as a definition of the concept “owner”

in the core sense that various systems have in common (cf. Hedenius 1977; Lindahl

and Odelstad 2013, 555 f.). In this way the analysis is tied to a particular English

word but not to the Anglo-Saxon legal system at a particular time.

The present paper is concerned with a concept that is often called “legal compe-

tence” but for which we have chosen the more traditional term “legal power.” In

* Lars Lindahl is professor emeritus of jurisprudence, Faculty of law, Lund University. David

Reidhav is associate professor of jurisprudence, Faculty of law, Lund University. The authors

wish to thank the membersof the advanced seminar in jurisprudence,Faculty of law, Lund, for

helpful commentson an earlier draft. Special thanks go to ChristianDahlman, chair of the semi-

nar. We would also like to thank Lena Wahlberg, for commenting on the draft at a later date,

and the anonymousreviewers.

V

C2017 The Authors. Ratio Juris V

C2017 John Wiley & Sons Ltd.

Ratio Juris. Vol. 30 No. 2 June 2017 (158–185)

our view, legal power is not a monolithic concept; rather, there are several vari-

eties.

1

However, we submit that there is a basic concept that all varieties of legal

power (such as joint and mediate) ultimately rely on. This basic concept is the

power of one physical person to achieve a legal result.

In the paper, we propose a (stipulative) definition of the basic notion of power as

it occurs in central norm-sentences: this definition is accompanied by a number of

secondary definitions. The focus is on the definiens that expresses the legal position

or relation that we are interested in. After outlining the proposed definition, the

central task is to argue that the definiens given represents an important and well-

formulated type of legal norm.

1.2. Some Notes on the Literature

In the literature, there are several characterizations of legal power that are attrac-

tive but which are too broad, or, in any case, not sufficiently precise to be opera-

tive as a definition. Brinz (1873, 211–2) maintained that legal power “occurs only

in acts-in-the-law, i.e., [it refers] only to such acts which are imposed or adopted

by the law for achieving its invisible legal effects.” Hart (1994, 33) compared legal

power to recipes: “recipes for creating duties.” He gave power-conferring rules

the form of “technical norms” or “hypothetical imperatives,” describing them as

having the form: “If you wish to do this, this is the way to do it” (ibid., 28).

2

In our view, a specification in terms of technical norms, recipes, facilities,

instruments, or means, for legal effects does not discriminate sufficiently (cf.

MacCormick 1981, 76).

Another strand in the literature attempts to distinguish legal power by resorting

to constitutive rules. As is well known, Searle (1969, 33, 35) describes such rules as

having the form: “Xcounts as Yin context C” and as being distinguishable from

other rules in that they “create or define new forms of behaviour.” It is true that

rules giving individuals legal power to contract, bequeath, promise, and sue can be

taken to create new forms of behaviour not possible without the institution (see,

e.g., Alexy 2002, 152–5; Bulygin 1992, 215–6). In our view, this is an important

insight but does not discriminate legal power from a number of other legal con-

cepts that also presuppose legal institutions. This is so with a number of delicts.

For example, the notion of theft relies on the notion of another person’s ownership,

and ownership is an institutional concept, but no person has the legal power to

steal.

Jones and Sergot (1996, 1997), using the connective )

s

, have developed an elabo-

rate formal theory for descriptive sentences stating that a legal “if, then” condi-

tional holds for (or in) an institution s. This formal theory aims at serving as a tool

for the analysis of what Jones and Sergot call “institutionalized power.” Jones and

Sergot do not, however, define the notion of “institutionalized power” nor, it

1

In a second paper, two important varieties of legal powerare distinguished, viz., the immedi-

ate joint power of a group of persons and the mediate power of agents ultimately represented

by physical persons.The literature on legal powerhas, in our view, paid insufficient attentionto

these varieties of legal power. The basic issuestreated in the present paper are independent of

the second paper.

2

On technical norms see, e.g., von Wright 1963, 9–11; on hypothetical imperatives see, e.g.,

Hare 1952, 33–8.

Legal Power 159

Ratio Juris, Vol. 30, No. 2 V

C2017 The Authors. Ratio Juris V

C2017 John Wiley & Sons Ltd.