The Competence Phenomenon: An Analytical Approach to Institutional Capacity, its Exercise, and Constitutive Norms of Validity

Abstract

This paper addresses the conceptual entanglement surrounding the notions of competence, existence, and validity in legal theory. To resolve this entanglement, this paper draws upon the ontology of institutional facts to distinguish the institutional action from its institutional result. It argues that competence is best understood as the institutional capacity to perform an institutional action, and that possessing this capacity does not necessarily entail the existence of the resulting legal norm. This ontological separation demonstrates that material and some procedural limits on competence are not elements of the competence norm itself, but rather regulative norms on the exercise of an already constituted competence. Consequently, the existence of a legal norm, defined as its membership in the legal system, always depends on the institutional action being performed by a competent body, regardless of the breach of any norm regulating it. Validity, conversely, functions as a distinct normative property.