ON SOME OBJECTIONS TO THE DEDUCTIVE CLOSURE OF LEGAL SYSTEMS.
| Autor | Zuleta, Hugo R. |
| Cargo | Ensayo critico |
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Introduction
As it is well known, Alchourron and Bulygin conceive of legal systems as kinds of deductive systems, i.e. sets of statements closed under the relation of deductive consequence, and define a legal order as a sequence of legal systems such that each of the members of the sequence can be justified by the rules existing in the previous system of the sequence.
Navarro and Rodriguez (2014) challenge this conception. (1) In their view, it is better, in order to explain legal dynamics, to consider only the expressly enacted norms as members of the legal systems. They don't deny the importance of taking into account the deductive consequences of the enacted norms to the effect of identifying which rules are implicitly derogated by an act of legislation, but claim that it is better not to consider them as members of the system.
They argue, in the first place, that in a deductive system it is important to distinguish between the axiomatic basis and the derived statements, and that this distinction is not possible if legal systems are defined in the way Alchourron and Bulygin do because the same system can have different axiomatic bases. The reason adduced for the importance of the distinction is that two extensionally equivalent axiomatic systems with different bases can react differently when an inconsistency is introduced into the system by the enactment of a new norm. In their view, this feature of axiomatic systems justifies taking the rules enacted as the axiomatic basis. They conclude that considering the logical consequences as members of the system is neither necessary nor convenient.
I agree with Navarro and Rodriguez about the importance of distinguishing the axiomatic basis from the other logical consequences, but I think that the example with which they try to justify their view is fallacious. On the other hand, I consider that the fact that two extensionally equivalent systems with different bases can react differently when a new norm is introduced is not a sufficient reason for always choosing the enacted norms as axiomatic bases.
In the second section I present Navarro and Rodriguez's example. In the third section I prove that the example is invalidated by a fallacy of equivocation. In the fourth section I show that it is true that different axiomatic bases can react differently to changes, but I argue that this fact is not a sufficient reason to prefer taking as a basis the rules enacted, because sometimes there are methodological reasons for choosing a different basis. I conclude that it is necessary to consider the legal systems as closed under logical consequence in order to decide which basis is the best.
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The Example
In order to establish the importance of distinguishing between the axiomatic basis and the other deductive consequences of a legal system, Navarro and Rodriguez present the following argument:
it may occur that the same normative act produces, as a result, a logical indeterminacy over one axiomatic base but not over another with identical logical consequences [...] Suppose normative authorities have enacted two formulations, one of which admits two possible interpretations: [NF.sub.1]: "Buenos Aires is the capital of Argentina."
[NF.sub.2]: "The President of Argentina must reside in the place indicated in the previous norm."
[NF.sub.2] is...
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