Contrary to Duty Obligations A Study in Legal Ontology

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Contrary to Duty Obligations A Study in Legal Ontology
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  89 Contrary to Duty Obligations  A Study in Legal Ontology Jaap Hage  Department of MetajuridicaFaculty of LawUniversiteit Maastricht The Netherlands jaap.hage@metajur.unimaas.nl Abstract. In this paper the problems in deontic logic around contrary to duty obliga-tions are used to conduct a study in basic normative ontology. Three causes of theproblems around contrary to duty obligations are identified, that is 1) the attempt toanalyze obligations in terms of what is ideally the case, 2) the application of deonticinheritance to the presuppositions of obligations, and 3) the failure to distinguish be-tween what will be called ‘inclusive’ and ‘exclusive ought-to-do’. These three causesare all attributed to insufficient distinctions on the ontological level. 1 The Relevance of Deontic Logic for Legal Ontology A central issue in legal ontology is the study of normative positions. Such normative positionsinclude being under an obligation, having a right, being entitled, etc. 1 The study of thesepositions and their mutual relations is a study of basic (legal) ontology, and includes the studyof the relations between what ought to be done, what is permitted, and what is obligatory. Inshort, the central topics of deontic logic are part of the study of normative positions, which isin turn part of legal ontology.In this paper I hope to make a contribution to the development of legal ontology by focus-ing on an issue that has plagued the development of deontic logic for quite a while. I refer tothe issue of contrary-to-duty obligations (CTDO’s). Since Chisholm [4] criticized the Stan-dard System of Deontic Logic (SDL) for not being able to deal with duties which arise as aconsequence of a norm violation, the issue of CTDO’s has not disappeared from the stage of deontic logic.My main thesis in this paper is that the complications that arise in connection withCTDO’s have little to do with CTDO’s themselves, but are consequences of deficient the-ories of the nature of obligations. Before starting my argument, I want to warn the readerthat she should not expect a proper paper on deontic logic, let alone the umpteenth attemptto ‘solve’ the CTDO-paradoxes. My focus will be on analysis, not on the development of alogical system. 1 See e.g. [1, 2, 3]. Jaap Hage, ‘Contrary to Duty Obligations – A Study in Legal Ontology’ in Bart Verheij, Arno R. Lodder, Ronald P. Loui and Antoinette J.Muntjewerff (eds.),  Legal Knowledge and Information Systems. Jurix 2001: The Fourteenth Annual Conference . Amsterdam: IOS Press,2001, pp. 89-102.  90  J. Hage 2 Ought-to-do and Ought-to-be Prescriptive and prohibitory norms have as one of their main functions to guide human be-havior. They indicate what people or organizations should or should not do. There seem to betwo different ways in which this purpose can be achieved. A norm can indicate what kind of action is to be performed or refrained from, and for which actors this holds. Such norms arecalled ought-to-do (or Tun-sollen) norms.A norm can also indicate how the world should look like, which states of affairs ought(not) to be the case. These norms are called ought-to-be (Sein-sollen) norms. Ought-to-benorms sometimes seem to occur in legal practice. In a sense they are problematic, however,because they do not specify what ought to be done, and which actors are to do what ought tobe done.It seems to me that ought-to-be norms can be given two different interpretations, whichshould be distinguished very carefully. On the one interpretation, ought-to-be norms specifyhow the world would ideally be. On this interpretation, ought-to-be norms themselves do notprescribe or prohibit behavior, because there is no logical relation between what is ideallythe case and what ought to be done. Only if ought-to-be norms are complemented with theprescription to strive for the ideal, they guide behavior. But then the ‘real’ norm is the ought-to-do norm that prescribes to strive for the ideal. The ought-to-be norm merely providescontent to this prescription.On the other interpretation, ought-to-be norms prescribe to see to it that the obligatorystate of affairs is achieved or maintained, depending on whether the ideal state in questionalready obtains. Briefly stated, the obligation is to see to it that the obligatory state of af-fairs obtains. On this interpretation, the ought-to-be norm is ‘really’ an ought-to-do norm indisguise. It is an incomplete ought-to-do norm, because it leaves the actor unspecified. Thisdeficiency can be remedied, however, by saying that the actors are those who are responsiblefor seeing to it that the obligatory state of affairs is achieved or maintained.If this analysis is correct, ought-to-be norms as such only seem to exist. In reality they areeithernonorms(inthesenseofbehaviorguidingentities)atall,buttheformulationsofideals,or they are ought-to-do norms with unspecified actors. On this analysis there would only beought-to-do norms, and deontic logic should therefore be a logic of ought-to-do norms. 2.1 Attempts to Reduce Ought-to-do to Ought-to-be It may seem, however, that there are real ought-to-be norms nevertheless. In this connectionone might think of norms of the form ‘It ought to be that X does (or: refrains from doing) A’.Moreover, one might even argue that ought-to-do norms are nothing else than such ought-to-be norms. ‘X ought to do A’ would on this view be analyzed as ‘It ought to be the case that Xdoes A’.Such an analysis would in my opinion be defective. The sentence ‘X ought to do A’ meansamongst others that X is responsible for doing A. This responsibility is lost on the analysisthat it ought merely be the case that X does A. If it ought to be the case that X does A, it mayvery well also be the case that not X, but Y is responsible for X’s doing A. In other words,if ‘X ought to do A’ is analyzed as ‘It ought to be the case that X does A’, something of themeaning of the srcinal sentence is lost.  Contrary to Duty Obligations – A Study in Legal Ontology  91 One might attempt to rescue the ought-to-be analysis by distinguishing between:a It ought to be the case that X does A; andb It ought to be the case that Y sees to it that X does A.The former sentence might then be read as expressing that X is the responsible person forhis own doing A, while the second sentence would be read as expressing that Y is responsiblefor X’s doing A. This ‘rescue’ does not work, because either the second sentence leavesunspecified whether Y is responsible for his seeing to it that X does A, or it is not possibleanymore to express that ideally Y sees to it that x does A, but that Y is not responsible fordoing so.Moreover, there is another objection against the ought-to-be analysis. Let us assume thatsentences of the form ‘It ought to be the case that ....’ specify an ideal situation. On thisassumption, the sentence ‘It ought to be the case that X does A’ means that in the idealsituation X does A. It may, however, be the case that X has promised to do A, while the worldwould be very slightly better if X would not do A. In this case, I feel that we can say that bothX ought to do A, and that ideally X would not do A. Otherwise the obligation to keep one’spromises would not exist if somebody promises to do what will lead to a sub-ideal outcome(the value of promise-keeping included). This is an understandable moral position (a kind of utilitarianism), but it should not be made the correct position on purely logical grounds.This counter-intuitive result can be avoided by not assuming that ‘It ought to be the casethat ...’ indicates an ideal situation. However, if this assumption is not made, it is unclearhow the phrase in question should be interpreted. The temptation is big to interpret ‘It oughtto be the case that X does A’ as meaning the same as ‘X ought to A’, but then an ought-to-beis reduced to an ought-to-do, rather than the other way round.In my opinion it is best to interpret ought-to-be sentences as specifying ideal situations,and on this interpretation ought-to-be and ought-to-do cannot be reduced to each other. 2.2 Standard Deontic Logic as a Logic of Ideals SDL is an extension of propositional logic. Its language allows the formation of deontic sen-tences by pre-fixing a deontic operator, typically  O ,  F , or  P , to a sentence. Since the deonticoperators operate on sentences, the resulting logic is a logic of the ought-to-be type. A sen-tence of the form  O(P)  would typically be read as ‘It is obligatory that P’, or ‘It ought to bethe case that P’.SDL is best characterized by its semantics. A sentence of the form  O(P)  is interpreted astrue iff the sentence  P  is true in all ‘ideal’ worlds.  F(P)  is true iff   P  is false in all ideal worlds,while  P(p)  is true iff   P  is true in at least one ideal world.The ‘official semantics’ for SDL is formulated more precisely, by defining an accessibilityrelation R over the set of possible worlds. For each possible world w there is a non-empty setof possible worlds that stand in this relation to (are accessible from) w. The sentence is truein w iff the sentence is true in all the worlds that stand in the relation R to w. Although thisofficial semantics is more precise, I also gave the intuitive reading, because it is, as we willsee, more revealing about the nature of SDL.  92  J. Hage The semantics of SDL validates a rule of inference to the effect that the logical conse-quences of what is obligatory are obligatory too. That this rule is validated is immediatelyclear if one realizes what is obligatory in a world is the case in its ideal alternatives. Inthese alternatives the facts that are logically implied by the facts that obtain must also obtain.Therefore the logical consequences of what is obligatory in a world w is the case in all idealalternatives of w, which means that they are obligatory in w too. For instance, if   O(P&Q)  istrue in w,  P&Q  is true in all its ideal alternatives. Therefore  P  is true in all its alternatives,which means that  O(P)  is true in w.A special case of this general rule is the rule that allows arguments of the form  deonticdetachment  :Obviously, if both  p → q  and  p  are true in all ideal worlds,  q  must betrue in all ideal worlds too.Given its semantics, SDL is a suitable logic for ideals. It specifies what logically followsfrom facts that ideally obtain. The facts that follow from what is ideal are ideal themselves.Apparently the characterization of the worlds that are accessible from a world w as idealworlds relative to w is aptly chosen. 2.3 The Chisholm Paradox We have seen that ought-to-be sentences can both be interpreted as sentences about what isideally the case, and as ought-to-do sentences in disguise. An interesting question is whetherSDL is also a suitable logic for this latter interpretation of ought-to-be sentences. Is SDL asuitable logic if   O(P)  is interpreted as ‘The person who is responsible for situation P ought tosee to it that P is the case’?Briefly stated, the answer to this question is an unambiguous ‘No’. SDL is not suitablefor the ought-to-do interpretation of ought-to-be sentences. The first indication that this is socan be found if the rule for deontic detachment is inspected. If somebody ought to see to itthat Q if P, and if he also ought to see to it that P, this does not logically imply that he oughtto see to it that Q.An example might make this clearer. Suppose that John ought to see to it that he helpshis neighbors and also that if he helps them, he tells them so. Do these obligations togetherimply that John ought to see to it that he tells his neighbors that he will help them? Obviouslynot. John ought only tell his neighbors that he will help them if he will actually help them.The mere obligation to help them is not sufficient. 2 And yet this inference, a special case of deontic detachment, is validated by SDL. SDL leads to counterintuitive results if interpretedas an ought-to-do logic in disguise, because deontic detachment is not suitable for reasoningwith ought-to-do obligations.Chisholm [4] has employed this insight by showing how SDL leads to paradoxical resultsif interpreted as an ought-to-do logic in disguise. Chisholm’s case ran as follows: 2 The attentive reader will have noticed that I moved from ought-to-see-to-it terminology to ought-to-doterminology. This is on purpose. I think that in the present context the ought-to-see-to-it terminology is forcedand only motivated by a misguided desire to stick as much as possible to ought-to-be like terminology.  Contrary to Duty Obligations – A Study in Legal Ontology  93 •  A certain man ought to go to assist his neighbors. •  He ought to tell them he is coming if he goes. •  If he does not go then he ought not to tell them he is coming. •  He does not go.According to the usual model theoretic semantics of SDL this can be translated in terms of ideals as follows 3 :- In the ideal situation a certain man goes to the assistance of his neighbors.- In the ideal situation, if he does go he tells them he is coming.- If he does not go then in the ideal situation he does not tell them he is coming.- He does not go.From the first two premises follows (by deontic detachment) that in the ideal situation, ourman tells his neighbors he is coming. From the last two premises follows (by Modus Ponens)that in the ideal situation he does not tell that he is coming. In other words, framed as a theoryabout what is ideally the case, this set of premises is inconsistent. And yet, interpreted as atheory of what ought to be done, the premises are consistent.The point of this paradox is that if ought-sentences are interpreted as sentences aboutwhat is the case in an ideal situation, they cannot be used to express what ought to be done insub-ideal situations. Since there can obviously be obligations about what to do in sub-idealsituations (in particular CTDO’s) SDL is unsuitable to deal with an important category of obligations. This point can even be generalized. If ought-sentences are interpreted as sayingwhat is the case in all worlds that belong to a particular subset of possible worlds, whetherthese worlds are ideal or not, the resulting logic cannot be used to express CTDO’s.This is far from surprising, because SDL is a logic for ought-to-be interpreted as ideals,and not for ought-to-be interpreted as ought-to-do in disguise. The Chisholm paradox is agood way to point this out, but the validity of deontic detachment in SDL also sufficientlydemonstrates that SDL should not be used as a logic for what ought to be done. If deonticlogic is taken to be a logic for ought-to-do (and not for what is ideally the case), SDL orvariants of it that allow deontic detachment should not be used for deontic logic. This conclu-sion is based on general considerations concerning ought-to-be ‘obligations’ and ought-to-doobligations, and not merely on difficulties in SDL to deal with CTDO’s. Attempts to contestthe conclusion by pointing out sophisticated logical theories that can ‘deal with’ CTDO’s in aSDL-like logic are not sufficient, unless they are accompanied by a philosophical theory thatexplains how ought-to-do obligations can be reduced to ought-to-be’s. As yet I have neverseen such a philosophical theory. 4 3 Deontic Inheritance Some may think that I am too rash in limiting the validity of deontic detachment to a logicfor ideals. Deontic detachment, it may be argued, is a special case of deontic inheritance, the 3 There are all kinds of intricacies involved in the formalisation of this example, which are beyond the scopeof this paper.. 4 The absence of satisfactory philosophical theories about the (non-)relation between ought-to-do and ought-to-be explains why this paper hardly pays any attention to the numerous attempts to deal with CTDO’s withinthe boundaries of SDL.
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