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POWERS AND COMPETENCES (draft version) Jaap Hage*

Universities of Maastricht (Netherlands) and Hasselt (Belgium)

E-mail: jaap.hage@maastrichtuniversity.nl

Internet: www.jaaphage.nl

Abstract

In the jurisprudential literature, the notions of legal power and legal competence are usually not well

distinguished. The present article tries to develop such a clear distinction.

The existence of a legal power is described as a side-effect of legal rules that make it possible to bring

about particular results. For example, Charlène has the legal power to reduce her tax obligations by

moving from Belgium to Monaco. (The example is on purpose not of a juridical act.) Legal powers can

be the side-effect of the existence of counts-as, fact-to-fact, and dynamic rules.

A legal competence is described as a status, attributed by a legal rule, which is a necessary

prerequisite for bringing about legal consequences by means of a juridical act. For example,

Parliament has the competence to create statutes. Without this competence an attempt to make a

statute would be invalid.

The concept of a legal competence is in first instance an internal legal concept, meaning that it is a

concept used in legal rules. In this respect it differs from the concept of a legal power, which is not

used in legal rules, even though legal powers exist because of legal rules. The concept of a legal

power is an external legal concept.

If a legal power is to be exercised by means of a juridical act, but only then, the competence to do so

is a necessary condition for the existence of this power.

1. Introduction

One of the central themes in Hart’s The Concept of Law is that not all legal rules are mandatory.

There are, for example, also rules that define the ways in which valid contracts or wills or marriages

are made. These rules provide legal subjects with facilities for realizing their wishes, by conferring

legal powers upon them to create rights and duties (Hart 2012, 27/8). Apart from contracts, wills,

and marriages, which are all in the sphere of private law, Hart might just as well have mentioned

bills, administrative dispositions and judicial verdicts, although the addendum that the powers can be

exercised to realize the wishes of the agents is not fully applicable in these cases from public law.

Hart is not very clear about the nature of the powers thus conferred, but from the examples one may

conclude that the existence of these legal powers is a side-effect of rules specifying how particular

legal consequences can be brought about. A legal power as Hart had in mind seems not to be some

status attributed by legal rules, but rather a consequence of the existence of certain kinds of legal

rules.

* This article elaborates ideas that were first formulated in Hage 2013. The elaboration would not have been

possible without the many discussions the author had about powers and competences with Hester van der

Kaaij and Antonia Waltermann, who both discuss these notions in their PhD-theses (in preparation) about

respectively juridical acts and sovereignty. Antonia Waltermann has also given useful comments on an earlier

version of this article.

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The notion of a competence may at first sight seem identical to that of a power, but when we look at

the way Kelsen defines a competence, we seem to find an important difference. Kelsen explicitly

points out that competences both play a role in private and in public law, be it under different

names: Rechtsmacht in private law, and Zuständigkeit or Kompetenz in public law (Kelsen 1960,

152/3). Moreover, he writes that the legal order attributes (verleiht) competences to legal agents,

thereby suggesting that a competence is a status that a legal agent receives through the application

of some legal rule.

This article does not aim at providing historically correct interpretations of the work of legal

philosophical authors, and it may remain an open issue what Hart and Kelsen ‘really’ had in mind.

However, their texts at first sight seem to deal with slightly different phenomena. Powers in the

Hartian sense seem to be side-effects of the existence of certain legal rules, while competences in

the Kelsenian sense seem to be instances of legal status that is attributed by legal rules to agents.

This difference between legal powers and competences constitutes the main theme of this article.

The central questions are what legal powers and competences are, and how they differ from each

other. Related questions, which are dealt with in the passing, are how powers and competences

relate to other basic legal notions such as legal rules, and juridical acts.

Section 2 of this article deals with legal powers, and relates these powers to causal powers and to

different kinds of rules. Section 3 starts with the crucial distinction between external and internal

legal concepts and the argument that where the concept of a legal power is an external legal

concept, the concept of a legal competence is an internal legal concept. Building on this distinction,

the Section relates competences to juridical acts and discusses two ways in which an agent may

receive a legal competence. Section 4, finally, summarizes the main results and specifies the

relationship between legal competences and legal powers.

Before continuing, it is important to eliminate a possible source of confusion. This article deals with

the difference between powers and competences. Its main message is that there actually are two

different notions and, correspondingly, two different kinds of phenomena. The one phenomenon has

here been called ‘powers’ and the other ‘competences’. In actual legal usage, the terms ‘power’ and

‘competence’ are not always clearly distinguished, and ‘power’ may be sometimes be used for what

is meant here by ‘competence’, and the other way round. By calling the one phenomenon ‘powers’

and the other ‘competences’, this article does not claim that this is the way in which the terms are

actually used, or should be used. The message is that there are different phenomena, and the use of

the words ‘power’ and ‘competence’ to denote them is to some extent arbitrary.

2. Legal Powers

2.1 Of powers in general

Legal powers are, as we will see, powers to do something that are the result of the existence of legal

rules. An agent can in general be said to have the power to perform an act of type A if and only if this

agent would perform an act of type A if only he1 wanted to do so. A few examples may clarify this

definition of the power to act.

1 The use of expressions that refer to a person whose gender is irrelevant is a matter of continuing

controversy. I discovered a useful convention in this connection, to which I will adhere; females should use

‘female’ expressions , and males ‘male’ expressions.

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1. Dieter has the power to open the door if he would open the door if he wanted to.2 This power

only exists if the door is not locked, or if Dieter has the key.

2. Angela has the power to win the elections if she would win if she wanted to. This presupposes

that her political opponents do not have the power to win, or that they can only win by making

that Angela does not want to win. This example also illustrates that the power to perform some

kinds of acts presupposes the existence of particular conventions, in this case the conventions

that govern elections.

3. Franz does not have the power to trip over the carpet, because one can only have the power to

perform intentional acts. This example illustrates the difference between the power and the

ability to do something.

4. Charlène has the power to diminish her tax obligations, because she would migrate from Belgium

to Monaco if she wanted to.

5. Hans has the power to make himself liable for damages. He would incur such liability if he decided

to drive his car into his neighbor’s.

6. Gladys has the power to make her daughter the owner of Blackacre, because she is the present

owner, and there is nothing that withholds her from donating the estate to her daughter if she

wanted to.

2.2 Causal and rule-based powers

The examples 2 and 4 - 6 illustrate rule-based powers, while example 1 illustrates a causal power.

Causal powers relate to acts that are defined as bringing about a particular result.3 In the first

example, Dieter can bring about the result that the door is open. He can do that because by making

particular movements, sometimes involving the use of the key to the door, he can start a causal

chain that ends with the door being open. Other examples of causal powers are the power to drive a

car, the power to jump one meter high, and the power to travel to the moon.

Some acts consist in satisfying the conditions of a rule, thereby making the rule to generate certain

effects. Winning the elections is only possible because of the rules that define and govern elections.

These rules form a complex set which includes rules that define which events, under what

circumstances, count as an election. Counts-as rules, as these rules are nowadays usually called4,

make that some events also count as another kind of events. Making a circle red counts, under

suitable circumstances, as casting a vote. Therefore, the agent who has the power to make the circle

red and who satisfies some legal conditions also has the power to cast a vote.

In general, counts-as rules make that an agent who has the power to do one kind of thing, also has

the power to do some other kind of thing. The latter power is by definition rule-based. The former

power may be a causal power, but it may also be a rule-based power itself. For example, an agent

who has the power to hand over car keys to somebody else, which is a causal power, also has the

power to deliver the car, which is a rule-based power. Moreover if she has this rule-based power to

2 This definition is mainly meant for expository purposes. Although it captures some of the many ways in

which the term ‘power’ is actually used, it excludes some cases to which the term would apply, and includes

some cases in which ‘power’ typically would not be used. 3 Because there are also acts which are not rule-based and do not consist in bringing about a particular result

(e.g. walking), it is not the case that all powers are either causal or rule-based. 4 The name ‘counts-as rules’ has been popularized by Searle (1995). The traditional name under legal

philosophers was, of course, ‘rules of recognition’.

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deliver, she also has the rule-based power to transfer ownership of the car. Handing over the car

keys counts, under suitable circumstances, as delivering, and delivering counts-as transferring.

Examples 4 illustrates rule-based powers that exist because of fact-to-fact rules. A fact-to-fact rule

attaches legal consequences to the existence of some fact. Examples of fact-to-fact rules are the

rules that attach the command over the USA army to the fact of being the President of the USA,

having the competence to transfer ownership to being the owner, and the existence of tax

obligations to being the resident of a country. By moving from Belgium, Charlène took away

residency in Belgium and with it the obligation to pay Belgian taxes, and by moving into Monte Carlo

she brought about residency in Monte Carlo and with it her tax obligations to that country.

Example 5 illustrates the existence of a power that is based on a dynamic rule. Dynamic rules bring

about legal consequences that are attached to the occurrence of some event. Examples of such facts

are being born, the adoption of a Bill, the pronunciation of a judicial verdict, the conclusion of a

contract, but also torts, as in example 5. By performing some unlawful act that causes damage to

somebody else, an agent incurs liability for damages. The power to perform such an unlawful act is

consequently also the power to create this liability.

Example 6 is a more common illustration of a power based on a dynamic rule, and it is at the same

time an example of the power to create legal consequences by the performance of a juridical act.

Juridical acts may be defined as acts, performed with the intention to bring about legal effects, to

which the law attaches these legal effects for the very reason that they were intended.5 The power

to perform a juridical act is always rule-based, because some ‘physical’ act - or omission - must count

as the performance of the juridical act in question. The transfer of Blackacre most likely involved

signing some document at the office of an official (e.g. a notary). This event counts-as the transfer of

Blackacre, which in turn leads to the double effect that Gladys is not anymore the owner of Blackacre

and that her daughter is the new owner. The power of Gladys to sign this document counts,

assuming the appropriate background of circumstances, as the power to transfer title to Blackacre,

which in turn is the power to make her daughter the new owner.

2.3 Legal powers as side-effects

We have seen that powers can be based on both causal laws and on rules. For legal purposes, the

powers based on legal rules are the more interesting category. We may call these powers ‘legal

powers’. We have also seen that such legal powers can be based on counts-as rules, on fact-to-fact

rules and on dynamic rules. However, none of the rules that were used in the examples attributed a

power to some agent. Moreover, none of the given examples is exceptional in this respect. Agents

typically have legal powers because of the existence of particular legal rules, but not because the

rules attribute these powers to them. Legal powers are in this sense side-effects of the existence of

legal rules. Power-conferring rules are not power-attributing rules.

However, we might draw a still bolder conclusion: powers as defined here even cannot be attributed

by legal rules. The reason why that is not possible can be seen more clearly if we consider the

distinction between internal and external legal concepts.

5 See Hage 2009b and Hage 2011. This definition is of the juridical act as an external legal concept. See

Section 3.1. The objection that the definition is not correct given the rules of some specific legal system, for

instance because it does not mention the possibility of juridical acts based on reliance, would therefore not

necessarily cut ice.

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3. Legal Competences

Legal competences differ essentially from legal powers, because they instantiate internal legal

concepts, where powers instantate external legal concepts. This Section starts with a brief discussion

of the distinction between internal and external legal concepts. It continues by pointing out the role

of competences in the performance of successful juridical acts. The Section is concluded by showing

how an agent can receive the competence to create legal consequences through the performance of

a juridical act.

3.1 Internal and external legal concepts6

Law builds a world of its own, the ‘world of law’ (Hage 2007). This world contains contracts, criminal

suspects, judges, parliaments, liabilities, misdemeanors, property rights, claims and permits. All these

entities are the result of the application of one or more legal rules. And although they may have a

material substrate – e.g. a criminal suspect will usually be a human being – their nature is immaterial.

A parliament as such is untouchable, as is a contract, a building permit, and a claim. The untouchable

nature of claims was the reason for Alf Ross (1957) to state that the word ‘claim’ does not stand for a

real thing, and that it is devoid of semantic reference. An ontology that is less austere than Ross’s

and that allows immaterial ‘things’ may grant existence to claims and all the other entities in the

world of law. Such entities would then be instantiations of internal legal concepts.

Internal legal concepts are concepts that are used in legal rules. Often they have conditions for

applicability that are defined by law.7 For example, Dutch law8 contains a precise definition when

somebody counts as a suspect in criminal law. This definition is important because of the legal

consequences that the law attaches to being a criminal suspect. Just as important are the conditions

for the existence of a valid contract, because of the legal consequences attached to the presence of

such a contract. Because the conditions of applicability for internal legal concepts are defined by law,

these conditions may differ from one legal system to another, even for concepts which are ‘the

same’. German law has, for example, different conditions for the existence of a valid contract than

English law.9

External legal concepts are the concepts that are used in, amongst others, legal science, for

describing law.10 Often legal science uses the same words that are also used in the formulation of

legal rules. However, scientific concept formation is not the same thing as making law, and the

purpose of creating an external legal concept is therefore different from the purpose of creating an

internal concept. As a consequence, external legal concepts may have (slightly) different conditions

for applicability than their internal counterparts. A book on comparative contract law may use the

term ‘contract’ in the same meaning when it describes German law as when it describes English law,

6 The distinction between internal and external legal concepts borrows heavily from similar distinctions made

in Frändberg 2009. 7 As Poscher (2009) rightly pointed out, in the end all concepts that are used in legal rules have conditions of

applicability that are defined by law. However, sometimes the specific legal definitions are already available,

while some other times they are still lacking. Internal legal concepts are concepts for which the legal definitions

typically are already in place. 8 Art 27 of the Code for Criminal Procedure.

9 See, for instance, Smits 2014.

10 In Kelsenian terminology one might say that internal legal concepts are used in legal norms, while external

legal concepts are used in legal statements (Rechtssätze). See Kelsen 1960, 73f.

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and say for instance that German and English law have different conditions for the existence of a

contract.11 When we take the example of Ross’ paper Tû-tû, we might say that the internal concept

tû-tû is defined by a set of rules that indicate when the concept is applicable and what the legal

consequences of its applicability are, while the legal scientist Alf Ross claims that the external

concept tû-tû is devoid of semantic reference.

The concept of a legal power as analyzed above is a typical example of an external legal concept.

Legal rules do not use the concept of a power (in the analyzed sense12) but powers are a

phenomenon that emerges from the rules that create legal consequences. This phenomenon can

then be described in jurisprudence, as it was done in the previous Section. The concept of a legal

power differs in this respect fundamentally from the concept of a legal competence, which is in the

first place13 an internal legal concept.

3.2 Juridical acts and legal competences

There are many ways in which legal rules can provide agents with the power to bring about changes

in the world of law. One of those ways is special in the sense that it involves the possibility, within

certain limits, to bring about the legal consequences that the agent wants to bring about. Acts by

means of which agents use this possibility are called ‘juridical acts’. In Germany the notion of a

juridical act, a Rechtsgeschäft, is limited to private law, where the performance of a juridical act

tends to be an exercise of autonomy. However, these private acts of law have close relatives in public

law, for example in the shape of legislation, of administrative dispositions, and of judicial verdicts. In

all of these cases we find acts that are performed with the intention to bring about, through these

acts, legal consequences, while the law attaches the intended consequences to these acts for the

reason that this is what the agents intended to bring about.

Not everybody can bring about any legal consequence by means of an arbitrary kind of juridical act.

First, not everybody can perform any kind of juridical act. Private persons as such can, for instance,

typically14 not perform any kind of public law juridical act, and the other way round, public officers as

such typically cannot perform private law juridical acts. Moreover, not any public officer can perform

any kind of public law juridical act.

Second, not everybody who can perform a particular kind of juridical act can bring about any kind of

legal consequence by means of that kind of juridical acts. For example, nobody can create legal rules

by transferring ownership15, and nobody can sentence somebody to incarceration by means of a

contract.

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Hage 2009a discusses some of the implications of the view that the meaning of a legal term does not

coincide with the conditions for the term’s applicability. 12

It is very well possible that the rules of some legal system use the notion of a power. This notion would then

be an internal legal concept, and would not be identical to the notion of the external legal concept ‘power’ that

is discussed in this article. It may very well be used for what in this article are called ‘competences’. 13

‘in the first place’, because as this article illustrates the concept of a legal competence can also be used in

jurisprudential work and then it functions by definition as an external legal concept. 14

The word ‘typically’ is included here to allow for exceptions to rules. From now on, this possibility will be

ignored and the word ‘typically’ omitted. 15

Clearly it is possible to use transfer of ownership to make a set of legal rules applicable (as opposed to

valid).

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Third, even if it is in principle possible to create a particular kind of legal consequence by means of a

particular kind of juridical act, not everybody who can perform that kind of juridical act can bring

about any legal consequence of the appropriate kind. An obvious example is that although any

private agent (with legal capacity) can transfer ownership, nobody can transfer the ownership of

something which he does not own himself. Every private agent can contract, but nobody can validly

contract against the public order or contra bones mores. The legislator cannot make any law he

wishes because he is bound by higher legislation, including the constitution, and by treaties.

Fourth, even when an agent can bring about a particular kind of legal consequence by means of a

particular kind of juridical act, it may be impossible to create these consequences if they affect

somebody outside the ‘reach’ of the agent. Private agents can create obligations by means of

contracts, but typically they can only bind themselves, or persons which they represent. Municipal

legislators can only create rules for their own municipalities, and courts can only sentence persons

within their jurisdiction.

All these limitations can be captured by saying that an agent who is to bring about particular legal

consequences by means of a particular kind of juridical act must have the competence to perform

that kind of juridical act and to bring about those legal consequences by means of this kind of

juridical act.

If an agent tries to bring about certain legal consequences by means of a juridical act, but lacks the

necessary competence, the act will be invalid, and will not lead to legal consequences as a juridical

act. There may be circumstances, such as demands of legal certainty, under which the law attaches

the intended legal consequences to an act for which the agent lacked the required competence. If

that happens, the agent obviously had the legal power to bring about these consequences. However,

the agent lacked the required competence, and the legal consequences were not brought about by a

juridical act, but by a legally relevant attempt to perform a juridical act.

3.3 The attribution of competence

Unlike powers, competences need to be attributed. The principle of legality, which applies to public

law juridical acts, even demands that public law competences are attributed by written law. There

are two main ways in which an agent can receive the competence to perform a particular kind of

juridical acts with a particular content. Competences are often attributed by fact-to-fact rules, and

attached to the presence of some legal status. We already saw the example of the rule that attaches

the competence to alienate a good to being the owner of the good. Other examples are public law

competences attached to being a (particular kind of) public officer, and the competence to sentence

criminal suspects which is connected to the function of a judge. It is well possible that competences

are considered as ‘included’ in the functions which agents fulfill. An example from international

public law would be the doctrine of ‘implied powers’ (read: implied competences) according to which

intergovernmental organizations can exercise competences that are necessary for achieving their

objectives, even if these competences were not attributed to them in their founding charters.16

Competences can also be attributed by dynamic rules, as the result of a juridical act. For instance by

appointing somebody as a representative, one gives this person the competence to perform juridical

acts that bind the person who appointed him.

16

Reparation for Injuries, Advisory Opinion, ICJ Reports 1949, 174.

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4. Conclusions

Although powers and competences are very different things, they are not always clearly

distinguished in the literature, and sometimes it is not easy to determine whether an author writes

about powers or about competences in the sense in which the concepts were distinguished here.

In his illuminating study of legal competences, Spaak (1994, 169) writes explicitly about competence

norms, whose sole function it would be to confer competence on persons. Moreover, he gives

examples of what should definitely be considered as competence attributing fact-to-fact rules, and

he sees a lack of competence as a reason why some juridical act is invalid (Spaak 1994, 67-73). All of

this seems to imply that Spaak uses the term ‘competence’ for competences in the sense of this

article. However, he also writes that an agent having ‘a certain competence should be understood ,

in principle, in the same way as a statement that he is irascible, intelligent or that he otherwise has

some common (mental or physical) ability’(Spaak 1994, 97). This circumscription of a competence as

an ability – and not as a factor that creates the ability – strongly suggests that Spaak has in mind

what was called a power in this article.

Hohfeld (1920) writes that powers are correlated to liabilities to be affected by the exercise of these

powers. Such liabilities clearly are not legal statuses comparable to competences, and it seems

therefore that Hohfeld’s use of the term ‘power’ is for powers as we defined them here. At the same

time he writes that sending a letter that contains an offer creates a power (to conclude a contract),

thereby suggesting – although admittedly the evidence is not conclusive – that the created ‘power’ is

a competence is the sense the word was used here.

As said before, it is not the purpose of this article to provide the ‘right’ interpretations of legal

philosophical texts, but the difficulty in discovering the intended interpretations suggests at least

that the distinction between powers and competences is not always clearly made. And yet the

distinction between competences and powers is clear, as is the relation between the two. A legal

competence is a status, attributed by a legal rule, which is a necessary requirement to bring about

legal consequences by means of a juridical act. Competences exist in the ‘world of law’, and the

concept of a legal competence is in the first place an internal legal concept.

A legal power is the possibility to do something, which is the side-effect of, amongst others, the

existence of one or more legal rules. The concept of a legal power is an external legal concept.

When a legal power is the power to bring about results by means of a juridical act, and only then, a

competence is a prerequisite for the existence of this power. Only a prerequisite, because it is well

possible to have the competence to bring about legal consequences by means of a juridical act,

without also having the power to do so. Somebody who cannot write, for example, does not have the

legal power to conclude contracts that need to be in writing.

Since the attribution of legal competences is typically meant to create the power to bring about legal

consequences by means of juridical acts, such attribution is normally an aspect of the creation of a

legal power, next to the creation of the required counts-as, fact-to-fact, or dynamic rules. This may

have created the impression that attribution of competence and conferring a power are the same

thing. Hopefully this article has made it clear that this impression is misguided.

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References

Frändberg 2009

Åke Frändberg, ‘An Essay on Legal Concept Formation’ , in Jaap Hage and Dietmar von der Pfordten

(eds.), Concepts in Law. Dordrecht: Springer 2009, 1-16.

Hage 2007

JC Hage, ‘Building the World of Law’, Legisprudence 1 (2007), 359-379.

Hage 2009a

Jaap Hage, ‘The Meaning of Legal Status Words’, in Jaap Hage and Dietmar von der Pfordten (eds.),

Concepts in Law. Dordrecht: Springer 2009, 55-66.

Hage 2009b

Jaap Hage, ‘What is a Legal Transaction?’ in Maksymilian Del Mar and Zenon Bankowski (eds.), Law

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Hage 2011

Jaap C Hage, ‘A model of juridical acts: part 1: The world of law’, Artificial Intelligence and Law 19

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Hage 2013

Jaap Hage, 'Can Legal Theory be Objective?' in Jaakko Husa and Mark Van Hoecke (eds.), Objectivity

in Law and Legal Reasoning, Oxford: Hart 2013, 23-44.

Hart 2012

Herbert L.A. Hart, The Concept of Law, 3rd ed. Oxford: Oxford University Press 2012, 1st ed. 1961.

Hohfeld 1920

W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning; And Other Legal

Essays, New Haven: Yale University Press 1920.

Kelsen 1960

Hans Kelsen, Reine Rechtslehre, 2nd ed., Wien: Franz Deuticke 1960.

Poscher 2009

Ralf Poscher, ‘The Hands of Midas; When Concepts Turn Legal, or Deflating the Hart-Dworkin

Debate’, in Jaap Hage and Dietmar von der Pfordten (eds.), Concepts in Law. Dordrecht: Springer

2009, 99-116.

Ross 1957

Alf Ross, ‘Tûtû’, Harvard Law Review 70, 812.

Searle 1995

John R. Searle, The construction of social reality, New York: The Free Press 1995.

Smits 2014

Jan M. Smits, Contract Law. A comparative introduction, Cheltenham: Edward Elgar 2014.

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Spaak 1994

Torben Spaak, The Concept of Legal Competence. An Essay in Conceptual Analysis, Aldershot:

Darthmouth 1994.