Regulative Norms and Constitutive Norms in Law. Ontology, Interpretation and Legal Culture

Abstract

The aim of this work is to discuss whether the well-known distinction between regulative and constitutive legal norms presupposes a descriptive ontological thesis according to which there are regulative and constitutive norms in legal systems. The matter is relevant because, although it's a theoretical distinction in the obvious sense that it has been introduced and refined by legal theorists and is used by them for explanatory purposes, it does not follow that it's a mere stipulation. After showing that the ontological difference presupposed in this distinction has been outlined, although not thematized by Hart, Ross and Alchourrón & Bulygin, and discarding the plausibility of thematizing it exclusively as a problem of interpretation of normative texts, I will argue that the legal culture of legal specialists is the piece that makes possible to explicit the connection that exists between interpretive practices in law, the existence of regulative and constitutive norms and the discourse of legal theorists. The proposed objective is part of a broader one: to discuss once again, but from a new angle, the role that in the knowledge of law, plays the theory of law.