Contrary to Duty Obligations A Study in Legal Ontology

In this paper the problems in deontic logic around contrary to duty obligations are used to conduct a study in basic normative ontology. Three causes of the problems around contrary to duty obligations are identified, that is 1) the attempt to analyze obligations in terms of what is ideally the case, 2) the application of deontic inheritance to the presuppositions of obligations, and 3) the failure to distinguish between what will be called ‘inclusive’ and ‘exclusive ought-to-do’. These three causes are 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 positions include being under an obligation, having a right, being entitled, etc.1 The study of these positions and their mutual relations is a study of basic (legal) ontology, and includes the study of the relations between what ought to be done, what is permitted, and what is obligatory. In short, the central topics of deontic logic are part of the study of normative positions, which is in turn part of legal ontology. In this paper I hope to make a contribution to the development of legal ontology by focusing on an issue that has plagued the development of deontic logic for quite a while. I refer to the issue of contrary-to-duty obligations (CTDO’s). Since Chisholm [4] criticized the Standard System of Deontic Logic (SDL) for not being able to deal with duties which arise as a consequence 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 with CTDO’s have little to do with CTDO’s themselves, but are consequences of deficient theories of the nature of obligations. Before starting my argument, I want to warn the reader that she should not expect a proper paper on deontic logic, let alone the umpteenth attempt to ‘solve’ the CTDO-paradoxes. My focus will be on analysis, not on the development of a logical system. 1See 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.