Abstract
This contribution elaborates the idea that norms are rules that lead to deontic consequences. Rules are one kind of constraints on possible worlds. They determine which facts necessarily go together or cannot go together. Three kinds of rules are distinguished: dynamic rules which attach consequences to the occurrence of events, fact-to-fact rules which attach one fact to the presence of some other fact, and counts-as rules, which make that some things (often events) also count as something else. Deontic facts are facts that tend to induce a motivation to comply with them in agents to which they apply. A distinction is made between two kinds of basic deontic facts—the existence of duties and of obligations—and two kinds of supervening deontic facts: being obligated and owing to do something. Some norms lead to obligations, and others impose duties.
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Notes
- 1.
For now, the term “norm” will be used in a broad sense. The more specific use will be introduced in Sect. 6.
- 2.
It is also possible that norms guide behavior of non-human entities, such as computer programs and robots, but here we will not pay special attention to these possibilities.
- 3.
- 4.
It should be noted that, in particular in law, formulations that suggest an ought-to-be norm because they do not specify that something ought to be done can nevertheless stand for ought-to-do norms, because it is clear from the context who is responsible for bringing about the right state of affairs.
- 5.
- 6.
- 7.
This is not the place to discuss the different functions of reasons for acting, and the distinction between guiding and explanatory reasons. However, it is worthwhile to point out that even if guiding reasons do not need to exert a causal influence on the person to whom they apply, the very notion of a guiding reason would not make sense if people in general would not be motivated by the awareness that a guiding reason applied to them. See also Sect. 5.1.
Legal philosophers will recognize the parallel with the relation between a legal system’s efficacy and the validity of the rules that belong to the system. Validity cannot be derived from efficacy, but it makes little sense to speak of the validity of norms that belong to a system that is completely inefficacious (Kelsen 1945, 42).
- 8.
This contribution adheres to the convention that authors should use the pronouns for their own gender to refer to persons whose gender is not important for the argument or otherwise determined by the text.
- 9.
From here on, we will follow the custom among logicians and use the terms “deontic” and “non-deontic” for the distinction between normative and non-normative.
- 10.
The importance that is attached to the distinction between is and ought may be explained from the function of critical morality, that is, to evaluate existing moral practices critically. The social practice of critically moralizing can only exist if the fact that some norms are actually used does not count as sufficient evidence for the claim that these norms should be used. Ignoring the difference between the norms, people actually use and the norms people should use make critically moralizing impossible. So, there is a practical relevance to distinguishing between is and ought, but this relevance does not justify that the real difference is blown up to an ontological gap.
- 11.
It is possible to construct these rules as elements of more complicated rules that do guide behavior, and that is why it was written that it is not their primary function to guide behavior. However, it is difficult to disagree with Hart (2012, 35–42), who wrote that the construction of such rules as parts of mandatory rules would be a distortion. Still there is a sense in which, for example, power-conferring rules can be followed, and in Sect. 4.2 an example will be discussed.
- 12.
Seemingly, the causal down direction of fit can also exist between duties and behavior, and not merely between speech acts and behavior. However, that would mean that non-material entities such as duties can exert causal influences, which do not sit well with our ideas about the nature of causation. It is therefore more coherent (with our views of causality) to say that the causal down direction of fit can exist between the belief that one has a duty, as realized by a brain state, and behavior.
- 13.
It may be disputed whether the fact that bachelor is unmarried depends on a conceptual rule and whether this conceptual rule does not depend itself on some ontological constraint (ontological nominalism or ontological realism). For the present purposes, this does not matter, however.
- 14.
For ease of exposition, we will ignore here exceptional descriptive sentences, such as the sentences “The king of France is bald” and “This sentence is false.” The clause “non-modal” was added to take into account that modal sentences which express necessity may be interpreted as dealing with more than one possible world.
- 15.
The metaphysics of possible worlds is the central topic of an anthology edited by Loux (1979). To the present authors’ knowledge, however, the idea that possible worlds are relativized to sets of constraints is not treated in that anthology, nor in more recent overviews of the discussions about possible worlds, such as Menzel (2015).
- 16.
The theory about constraints as exposed here has some remarkable similarities to the theory of modalities defended by Frändberg (typescript).
- 17.
These constraints on logically possible worlds are typically represented in the semantics of logical theories by characteristics of the valuation function that assigns truth values to propositions. See, for instance, Navarro and RodrĂguez (2014, 16).
- 18.
As a matter of fact, the concept of a “planet” has recently been redefined, taking away the status of a planet from the former planet Pluto. See https://en.wikipedia.org/wiki/IAU_definition_of_planet (last visited on December 24, 2015).
- 19.
This relation between conventions and the necessity based on them is explored a bit more in Hage (2013).
- 20.
Not only rules can have exceptions. There can also be exceptions to logical constraints (some descriptive sentences are not true or false) and to physical constraints (some physical laws are not applicable in extreme circumstances).
- 21.
This difference should not be overestimated, however. The geometrical law that the three corners of a triangle add up to 180° only holds for relatively small triangles and (which may be the same issue) for triangles in a flat plane. See also the discussion of the scope of physical laws in Toulmin (1953, 69 and 78).
- 22.
This theme is elaborated in Hage (2015).
- 23.
The facts based on rules are perhaps better known as “institutional facts” (MacCormick and Weinberger 1986, 10).
- 24.
In Sect. 4.6, these rule-based facts will be called “immediate rule-based facts,” and they will be distinguished from “mediated rule-based facts.”
- 25.
An important difference between these standards and, for instance, legal rules is that legal rules also generate exclusionary reasons (Raz 1975; Schauer 1991; Hage 1997), while evaluative standards typically do not. This difference has no fundamental consequences for the role of evaluative standards as underlying rule-based facts, however.
- 26.
Famously, Austin defined laws in his first lecture in The Province of Justice Determined (Austin 1954, 24) as commands which oblige persons generally to acts or forbearances of a class.
- 27.
Von Wright makes this mistake for a particular category of norms, the laws of the state. He calls such norms “prescriptions” and defines prescriptions as having their source in the will of a norm-authority (Von Wright 1963, 7). A similar mistake seems to be made by Alchourrón and Bulygin (1981), when they recognize an “expressive conception of norms,” according to which norms are essentially commands.
- 28.
- 29.
Remember that this necessity is compatible with exceptions to rules. See Sect. 3.4.
- 30.
See also Sect. 3.4. Because of the way open generalizations are often represented in formal logic, they have also become known under the misnomer “defeasible conditionals.” Generalizations are not conditional sentences, even though they tend to be represented in predicate logic by means of conditionals. Moreover, open generalizations are true or false and not defeasible—but conclusions based on them may be defeasible (Hage 2005, 14). However, the truth conditions of open generalizations differ from those of closed generalizations, because the former are not necessarily falsified by counterexamples, while the latter are.
- 31.
If the word “rule” is also used to denote open generalizations, there is no problem in deriving rules in this sense from other rules, also in the sense of open generalizations, and facts. It is this kind of reasoning about “rules” that seems to be at stake when MacCormick (1978, 100–108) writes about second-order justification of rules.
- 32.
- 33.
The following paragraphs only discuss duties, but mutatis mutandis the argument also applies to obligations.
- 34.
Sartor (2005, 454) seems to express the same idea when he characterizes obligations in terms of the intention to act on them.
- 35.
Human agents often critically evaluate the “duties” that they have according to a particular normative system, such as positive morality or positive law, and sometimes this evaluation leads to the conclusion that they should not comply with some “duty.” However, such a refusal to comply with a “duty” which is not up to standard is often motivated by saying that the “duty” turned out not to be a “real” duty after all. In that case, the link between real duties and the motivation to act upon them remains intact. Obviously, much more can and needs to be said on this issue, but this is not the place to do so. Interested readers are referred to Hage (2013).
- 36.
Such a postulation seems to be made in the account that Navarro and RodrĂguez give of the relation between norms and normative propositions (Navarro and RodrĂguez 2014, 78).
The constitutive nature of the rules on which deontic facts are based is discussed in Sect. 6.5 of the present contribution.
- 37.
The term “obligation” derives the technical meaning that is proposed here from the civil law tradition, according to which an obligation is a particular kind of bond between a debtor and a creditor (for the historical roots of this word use, see Zimmermann 1996, 1). In the English literature, the difference between duties and obligations is not drawn sharply, possibly under the influence of the common law.
- 38.
Being a human being might be the most abstract status to which duties are assigned.
- 39.
For a logical discussion of these “directed obligations,” see Herrestad and Krogh 1995.
- 40.
An example of a duty without a person toward whom the duty exists is the duty to stop for a traffic light, even if nobody is approaching. However, even if a duty mentions persons, e.g., the duty not to kill prisoners of war, this is not a duty toward these persons. Other persons can also address the duty holder about compliance with the duty. This is different for obligations, where typically only the right holders can demand compliance.
- 41.
The notion “prima facie ought” is more fashionable, but is strictly speaking an epistemic notion: If A prima facie ought to do X, then for all we know A ought to do X.
- 42.
Although the principle “ought implies can” is in the eyes of the author not a logical constraint, there is from the moral and the legal point of view much to be said for it. In the law of obligations, for instance, impossibility is the main reason for assuming force majeure. That is why the principle is applied in the present argument.
- 43.
Whether Antony is also permitted not to deliver the car to anyone of his creditors depends on the legal system. In the common law, where “specific performance” is exception rather than the rule, Antony would be permitted to financially compensate both creditors rather than delivering the car to any one of them. In the civil law tradition, Antony would still be obligated to deliver the car to the creditor he does not compensate financially (Smits 2014, 194–202). This example illustrates in the first place that the relation between the existence of an obligation and what a debtor legally ought to do depends on the law, not on logic alone, and in the second place that it is useful to study the law from a comparative perspective to see the respective roles of law and logic. Where legal solutions differ, they cannot be a matter of logic.
- 44.
This account may not be correct for every legal system. In some systems, obligations to transfer a good do have a priority, with the older obligation superseding the more recent one. In those systems, the debtor legally ought to transfer the object to the oldest creditor. Also, this example illustrates that the relation between legal obligations and what an agent legally ought to do are in the first place governed by law.
- 45.
The precise nature of this involves-relation which may hold between action types is crucially important in this connection. A first approximation would be that action type A1 involves action type A2 if necessarily every token of A1 is also a token of A2 (Hage 2001). It should be noted in this connection that the approximation presupposes that one act token can belong to more than one action type, and that the constraints that determine what counts as necessary remain unspecified.
- 46.
The inclusion of permissions—and also of competences—in rights is somewhat analogous to the involvement of one action type by another action type. An adequate theory about the nature of rights should include an elaboration of this includes-relation, but this is not the place to address this topic.
- 47.
The main difference is that whereas an ought and a duty contain three (or four) elements, an obligation is directed toward a creditor and therefore contains four (or five) elements, the extra element denoting the creditor.
- 48.
That the class is “open” means that the denoting expression refers to everybody who may happen to be a car driver and not merely to the fixed set of actual car drivers. The “openness” of the class makes that the deontic fact also deals with hypothetical car drivers, as in “If Thera would have been a car driver, she would have to carry a driver’s license.” See also the discussion of open generalizations in Sect. 4.6.
- 49.
This does not exclude that rule-applying arguments are studied in logic. There are several ways to do so. One is to drop the demand that all elements of an argument are propositions. Second is to allow entities without truth values as propositions. And third one is to use statements about the existence of rules as premises in rule-applying arguments. All of these options have consequences for the systems of logic that can be used to study rule-applying arguments that reach farther than accommodation for the defeasibility of rule-applying arguments.
- 50.
That the down direction of fit of constraints does not preclude them from being parts of arguments becomes clear from the example that if the world is constrained in such a way that Volkswagens are vehicles and that vehicles are not allowed in the park, the world is also constrained in the sense that Volkswagens are not allowed in the park. However, from the fact that the former two constraints exist as rules, it cannot be derived that the latter constrains also exist as a rule. See also Sect. 4.8.
- 51.
Notice that, this timeless relation between the conditions and the consequences of a fact-to-fact rule is compatible with the existence in time of the rule. Only as long as the rule exists, the condition facts and the conclusion facts go together in a timeless fashion.
- 52.
This last rule may also be interpreted as a counts-as rule.
- 53.
The formulation “aimed at” has been chosen instead of the more natural sounding “performed with the intention to” to include acts that are performed without a conscious intention, such as acts performed by implemented computer programs. A public officer who signs a license without even reading it also performs a juridical act, and it should not be precluded by definition that a computer program that buys and sells securities thereby performs juridical acts. For this reason, the aim of an act should not be identified with the intention with which the act was performed. Aims are ascribed to acts, and (ascribed) intentions are merely factors that play a role in ascribing aims. Thanks go to Hester van der Kaaij for pointing out to me how important this innocuous-seeming difference between intention and aim is.
- 54.
In a sense, even having a duty or an obligation can be seen as having a particular status, but this stretches the idea of legal status to its limits.
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Hage, J. (2018). Of Norms. In: Bongiovanni, G., Postema, G., Rotolo, A., Sartor, G., Valentini, C., Walton, D. (eds) Handbook of Legal Reasoning and Argumentation. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9452-0_5
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