Explanatory text to go with the NORMAS 2013 presentation
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What intelligent agents can teach legal theorists about law
Some relevant background info about the speaker:
I studied law and analytic philosophy at Leiden University. Apart from a two year excursion to computer science for EC-sponsored research on software maintenance, I have always worked at law faculties, where I was mostly involved with teaching Introduction to Law and Legal Philosophy.
I have always had a strong interest in logic, the nature of normativity, and basic legal concepts and most of my research has focused on these subjects.
Although my interests lie mostly with abstract issues, my stay at law faculties has always pulled me towards law and legal reasoning as it actually is / takes place.
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This presentation will deal with goal rules (GRs). Goal rules are an old phenomenon which has some (misleading) similarities to ought-to-be norms.
Most often they prescribe to promote goals. Pauline Westerman will discuss them extensively from a legal-philosophical perspective on Friday. My present ideas about GRs are very much the fruits of a long standing discussion that
Pauline and I have had about what is first and foremost her topic. That we have this continuing discussion signals that we do not always agree …
The emphasis will be on understanding the nature of GRs. This understanding is sought by investigating how goal rules should be formalised in the vocabulary of deontic logic, and – if time permits - under which conditions Intelligent
Agents (IAs) might be able to comply with GRs.
I will use the occasion to inform you about my recent research into the nature of norms.
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Procedure
Because an exchange of ideas is often more fruitful to further understanding of a topic than one person telling a story, this lecture is meant to be interactive. I encourage you to ask (critical) questions and start discussions during and not only after my talk.
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The GRs that are most important for our present purposes are the ones that prescribe behaviour by specifying some goal that must be promoted, or even realised.
GRs that prohibit behaviour are also possible but seem to lead to less complications. I am not aware of any permissive GRs, although theoretically I can imagine that they exist.
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Example 1 illustrates that: a. goals can be negative; b. some GRs deal with achieving a result, not merely with attempts to do so; c. goals can be expressed in terms of ‘succes-verbs’, verbs that only apply if some result has actually been achieved.
Examples 2 and 3 illustrate GRs that are directed to (semi-) administrative agents, and show that GRs may require an effort rather than a result.
Example 3 is a GR formulated in evaluative terms (‘as good as possible’).
Example 4 illustrates a GR that must be complied with by making additional rules (and not merely attempting to do so).
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 applicable standards (what is good health care?)
 the required level of effort (what is good enough?)
 trade-off other goals (environment/employment)
Most goal rules are cases of delegation of legislative powers. Their
(dis)advantages are to a large extent known in the legal literature as the
(dis)advantages of delegation. However the GRs to which Westerman has drawn attention (zie: http://www.paulinewesterman.nl/publicationsenglish.php) are characterised by additional features:
- they are formulated in evaluative terms;
- they require an unspecified amount of effort.
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Advantages
One advantage of delegation is that rules are made on a level that is as close as possible to the people whom the rules concern. Cf. the demand of subsidiarity in connection with the European Union.
A second advantage is that delegation allows a maximum use of specialised expertise.
Disadvantages
Delegated creation of rules has less democratic legitimation.
Where rules are created by the Administration there is a violation of the separation of powers.
If rules are created on different levels, the unity of policy and the coherence of the normative system is threatened.
If GRs are formulated in evaluative terms it may be unclear which standard should be applied to evaluate compliance.
If GRs require an unspecified amount of effort, it is unclear what the required amount of effort is.
A GR does not mention which other goals or values are to be taken into account and how they should be balanced against the goal of the rule.
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the window ought to be closed
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car drivers ought to put on the car lights
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the surgeon ought to operate carefully
Introduction
What kind of norms are GRs?
The vocabulary of deontic logic is useful to make a few relevant distinctions.
Norms are traditionally divided into two categories, but there is at least a third one.
The traditional categories are ought to be norms and ought to do norms. The third category consists of how to do norms.
Ought to be norms
If we ignore prohibitions and permissions, OB-norms indicate that a particular state of affairs (SOA) ought to be the case. For instance, the letter ought to be stamped.
Characteristic for a real OB norm is that the norm does not say that anything ought to be done, and does not specify an agent who is responsible for the SOA that ought to be the case. Many formulations of norms that seem at first sight to formulate OB norms implicitly assume that a particular agent is responsible for making it the case (seeing to it that) the SOA will be the case. Those norms are what will later be characterised as material ought to do (OD) norms.
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Even if the state of affairs that ought to be the case mentions that P does A, a real OB norm does not state that O should do A, or that this P is responsible for his doing A.
Because OB norms do not specify that something ought to be done, they are not suitable for guiding behaviour. Their main purpose is to evaluate states of affairs as ‘right’ or ‘wrong’.
Given this limited use of real OB norms, they are in my opinion not worthy of the large amount attention that has been spent on them in the deontic logic literature.
Ought to do norms
If we limit ourselves to OD norms that prescribe behaviour (no permission or prohibitions, no forbearances), we can distinguish between kinds of OD norms on the basis of the way in which the norm addressee is specified.
- An OD norm can address everyone, as in ‘Everybody ought to speak the truth’. (universal duties)
- It can also address an open class of agents specified by predicates, as in
‘Car drivers ought to carry a driving license’. (class duties)
- And finally it can address a set of one or more specific agents (including groups of specific agents), as in ‘Gerald ought to pay Joan €500’.
(particular duties)
OD norms can guide future behaviour and since future acts do not exist yet, they can only be specified as an act of a particular action type. Therefore OD norms always prescribe that agents perform a type of action , such as whistling, closing the window, and promoting a healthy environment. They never prescribe (or forbid) concrete acts, but the action types that they prescribe can be very specific.
Normally, but e.g. not in the case of minors, the addressee of an OD norm is responsible that the OD norm is complied with. So OD norms differ from OB norms both in that they have a norm addressee and in that they point out who is normally responsible for compliance.
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How to do norms
For the present purposes, how to do (HT) norms are not very relevant, but it is useful to point out their existence if the distinction between OB en OD norms is made. The best known case of an HT norm in de deontic logic literature is that of the gentle murder (Forrester’s) paradox. The prescription to commit a murder in a gentle way does not imply the prescription to commit a murder.
More in general, the fact that an act ought to be performed in a particular way does not imply that this act ought to be performed.
A counterpart of this in the OB sphere is that the fact that a garden fence ought to be white does not imply that there ought be a garden fence. Apparently there are not only how to do norms, but also how to be norms. Their practical relevance is even smaller than that of ordinary OB norms and I will ignore them here.
Deontic HT norms are not to be confused with constitutive HT norms . In the
Netherlands, legislation must made according to a procedure which involves the Government, Parliament and the Council of State. If this procedure is not followed, this does not mean that somebody acted unlawfully, as would be the case if the HT norm would be deontic. The sanction if a constitutive HT norm is violated is that the juridical act at stake (constitutive HT norms always deal with juridical acts) is non-existent (e.g. when Parliament was not involved) or void
(probably if the Council of State was not involved). Presumably there will also be cases in which violation of a constitutive HT norm leads to avoidability.
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Arguably, GRs are a kind of OD norms, and more in particular OD norms that prescribe a particular kind of action.
Material norms and acts
In this connection it is useful to distinguish between material and formal norms. This terminology is taken from a distinction in Dutch criminal law.
Materials norms prescribe or forbid bringing about a particular result. A typical example is the prohibition of murder. An act can only be a case of murder if the victim died as a consequence of the act. Materials acts are acts that caused (in a broad sense) particular effects and these acts are defined as bringing these effects about. The public prosecutor has to prove this causal link between the basic act (e.g. shooting at the victim) and its effects (the victim died) if she wants the agent to be convicted for homicide.
Formal acts and norms
Formal acts are acts which are not material. Examples are whistling, walking and stealing.
One might argue that also these acts are material, because a whistler who does not produce any sound is not a whistler but merely somebody who attempted to whistle.
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The same counts for a ‘swimmer’ who drowns, or a ‘walker’ who immediately drops down. In some sense any intentional act is basically an attempt to perform that act, and if the attempt succeeds the attempt ‘caused’ the success.
Such an argument would lead to an infinite regress, though, because attempts may fail as an attempt too, and then the more basic act would be an attempt to attempt, on so on …
To cope with this problem, material acts may be defined as acts which already were some other kind of act (and not merely an attempt) where this other kind of act brought about a consequence which allows the act also to be recognised as an act of bringing this consequence about. For instance murdering a person would be shooting this person with the effect that he died. Shooting would be a formal act, murdering a material one.
The existence of formal acts makes it implausible that systems of deontic that focus on the SOAS that result from acts (e.g. branching time models) will find broad application.
Formal norms may be defined as norms which regulate formal acts, e.g. a prohibition to shoot a gun, or a permission to talk during a key note lecture.
Material OD norms and OB norms
Material OD norms, in particular those that prescribe to bring about a particular SOA, are easily confused with OB norms. And yet the difference is easy to tell. Material OD norms either explicitly or implicitly specify an addressee and therewith implicitly also who is responsible that the SOA is brought about. A real OB norm does not do that.
Many norms that, given their wording, may seem OB norms are in facts incompletely formulated material OD norms.
Semi-formal OD norms
Some GRs prescribe (or forbid) that a particular SOA is brought about. The prohibition of murder is a case in point, as is the EU directive that prescribes to bring about rules that guarantee equal pay for women and men.
Most GRs, however, prescribe that a goal is promoted. Promoting some SOA is not defined in terms of bringing about an effect. These GRs are therefore not material OD norms. But they are still defined in terms of a SOA and in that sense they are not typical formal OD norms either. I therefore propose to call them semi-formal norms.
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Semi-formal OD norms are norms that prescribe (or prohibit or permit) to make an effort or to attempt to achieve or avoid a SOA. It seems that most GRs are semi-formal OD norms.
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Sheet 9:
Attach a change in the set of facts as the result of an event taking (having taken) place.
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An election leads to a new chairperson for the hockey club.
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Passing a Bill leads to the creation and/or abrogation of rules.
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Taking effect of human rights treaty leads to the coming into existence of human rights.
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A transfer of ownership gives Henry title to
Blackacre.
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A contract or a tort leads to an obligation.
Introduction
To get a full understanding of GRs it is also necessary to classify them as duty imposing static rules, rather than as obligation creating dynamic rules.
There are two (related) distinctions at stake here:
1. Between dynamic and static rules.
2. Between duties and obligations.
Juridical acts
Dynamic rules attach changes in the set of facts to the occurrence of some event.
Sometimes the event is an act performed with the intention to bring these effects about and if the effects result because they were intended, we speak in the law of a juridical act .
Examples 2, 4, 6 (in part) and possibly 1 illustrate juridical acts.
Obligations
Some juridical acts (contracts are the obvious example) aim at creating obligations. An obligation is a legal relation between (mostly) two persons. One
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of the persons is obligated to do something (in a particular way) and the other person has a corresponding right against this first person.
Obligation imposing rules
Most dynamic rules belong to the law (but not all: promises).
Sometimes dynamic rules attach deontic consequences to an event. The most conspicuous (but not the only) legal examples concern events which lead to obligations (in the technical sense to be defined soon).
Other dynamic rules
Notice that the rules mentioned under 2, 3 and 4 do themselves not lead to deontic consequences. But they do lead to facts ( often the presence of some status, such as owner) to which a static rule attaches deontic consequences.
Empowering dynamic rules
Dynamic rules can also empower an agent to impose a duty on another agent.
For example, the Board of Maastricht University can impose the duty of the
Maastricht Law School to remedy a budgetary defect within three years.
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Attach the existence of facts (duty, competence, status) to the existence of other facts.
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Every shop owner is obligated to close the shop at 8 PM
(duty imposing rule)
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The owner of a good is competent to alienate the good
(competence conferring rule).
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The formal legislator is competent to create legal rules that have the whole country as their scope.
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The king of the country is also the commander-in-chief of the army (status conferring rule; counts-as rule).
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A rule created by means of legislation counts as a valid legal rule (count-as rule; rule of recognition)
Static rules work in a timeless fashion, and make that facts of one type always
(barring exceptions to the rule) go together with facts of some other type.
Status conferring rules
These other facts often concern the presence of a status to which other rules attach additional consequences. A typical example is the rule under 4. The king is the commander in chief and has in that quality additional competences.
These status conferring rules have become well known recently thanks to the popular work of Searle, who dubbed them counts as rules. Some of these counts as rules were already known amongst legal philosophers under the
Hartian name ‘rules of recognition’.
Competence conferring rules
Other static rules attach competences to the presence of a status. This is exemplified by the rules under 2 and 3.
Duty imposing rules
For our present purposes, the most relevant static rules are duty imposing rules. Just like some rules attach the presence of a competence to some status,
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duty imposing rules attach the presence of a duty to some status. This becomes very clear in the form of OD norms that have a class of agents as their norm addressees. The class is defined by the status to which the norm attaches a duty. For instance, the norm that car drivers must carry a driving license attaches the duty to carry a driving license to the status ‘car driver’.
Status related and free floating duties
The duties that are connected by means of a static rule to a particular status should be distinguished from the duties which are imposed by means of a juridical act on a particular agent. These latter duties may be called ‘free floating duties’.
GRs can both be attached to a status (e.g. the status of being an EU Member
State) and they can also be free floating duties (as exemplified by the duty of the Maastricht Law School to remedy a budgetary defect).
An afterthought
Working on a presentation can make one to change his opinions. When I started working on this presentation I assumed that there exist goal rules. At this stage (the umpteenth revision of the presentation) I have come to believe that the GRs are actually a kind of duties and not rules at all.
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In deontic logic, ethical theory and jurisprudence the different deontic concepts are often used interchangeably. Nevertheless some distinctions can be made and the following is an attempt to make some distinctions by stipulatively using different words for different kinds of mandatory norms. Here
I will only focus on duties, obligations and ought.
Duties make that somebody must do something in the deontic sense (and not in the sense of necessitation). The reason why agents must do this is because a static rule attaches this duty to some status which they have.
The minimal status is that of agent and then the duty is a duty which addresses
‘everybody’ (a universal duty).
Most duties address a class of agents which is defined by one or more properties. (Class duties) This would include duties for car drivers, but also for left-handed burglars who were born in New Jersey on a Thursday.
Duties can also address individuals (particular duties), but this will usually be the case if the duty is universal or if the individuals belong to some duty
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bearing class. An exception are the free floating duties , which are imposed by one agent on another agent.
Duties are not directed and not the counterparts of rights. So it is not the case that the duty of one corresponds to the right of another.
The reason why an agent is under a duty to do A (usually the person’s status) is also a contributory reason why this agent ought to do A. This reason may have to be balanced against reason why the agent should not do A.
A person can be under duties to do incompatible things. Then the duties normally lead to colliding contributory reasons.
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Obligations make that somebody must do something to which somebody else, towards whom the obligation exists, is entitled. The existence of such an obligation, with the claim attached, is brought about by a dynamic rule as the result of some obligation creating event.
Obligations are always concrete and as a consequence they cannot be instantiations of universal or class obligations. There is, for instance, no universal obligation to keep one’s promises.
If a person makes conflicting promises, he will be under conflicting obligations.
Each of these promises is not only a reason why an obligation exists, but also a contributory reason why the promisor ought to do what he promised. In the case of conflicting promises, of if the promise was to violate a duty, the contributory reasons need to be weighed in order to determine what the promisor morally or legally ought to do.
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A moral ought is based on the interplay of all moral reasons; a legal ought on the interplay of all legal reasons.
There cannot be two conflicting moral oughts, or two conflicting legal oughts, but there can be a conflict between a moral ought and a legal ought and possibly also between the legal ought of one jurisdiction and the legal ought of another jurisdiction.
It is dubitable whether such a thing as an ought ‘all things considered’ can exist, because this leaves unspecified which reasons need (ought?) to be taken into account.
Rules an only give one reason why something ought to be done, and can therefore by definition not state what ought to be done.
An ought is in this respect comparable to a weak permission, whereas duties and obligations are comparable to strong permissions. (Explanation on request.)
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Typical Goal Rules are :
 static rules, that
 attach duties to some status;
 that create semi-formal norms;
 where the SOA that is to be promoted is formulated in evaluative terms,
 where the means to promote the goal are mostly left open, and
 where the required amount of effort is left unspecified.
The rest of the presentation will only be given if sufficient time remains.
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Goal rules allegedly pose special problems for agents. One might think that if this is the case for human agents, this may be even more so for intelligent machine agents.
For one simple reason this is obviously the case. Part of the problems is that
GRs insufficiently specify what is required to comply with them for the following reasons:
1. The goal that is to be promoted is often formulated in evaluative terms and the standards to be used in determining what the goal precisely is are not specified. This is a problem for human beings who have ‘world knowledge’, but it is even more the case for agents which do not have (so much) world knowledge. In this connection world knowledge is assumed to include ‘knowledge’ of what is valuable, and the relative weight of different goals and values.
2. Often a GR does not require that some goal is realised, but merely that it should be promoted, or that sufficient effort should be made to realise or promote it. That leaves the question open how much effort suffices.
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Again, answering such a question is easier (but still hard) with more world knowledge.
3. If a goal must be promoted this does not mean that other goals, policies, values and possible side-effects should be ignored. A GR by itself does not specify which other goals etc. should be taken into account, or how they should be balanced against the goals mentioned in the rule. Again, more world knowledge is helpful here.
But it is interesting to find out how intelligent agent fare apart from these issues about world knowledge. To that purpose we will have a closer look at what constitutes an act.
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1. neurons fire
2. brain sends impulse to muscles muscles contract
3. move arm and hand
The problem with acts is that they do not exist in an objective mind independent reality, but depend to a large extent on ascription of the status of an act to an event that ‘in itself’ (whatever that may be) is not an act. This holds, as we will see, in particular for acts that consist in complying with a GR.
Let us start with the analysis of a human act, and in particular with some physical aspects of it. On a basic level, the act starts off with a number of neurons in the brain that fire. This causes/constitutes (a bit of both it seems) the brain to send an impulse to the muscles, which as a consequence contract.
None of the first three steps counts as an act, but the ‘effect’ of the muscle contraction is that the agent moves her arm and finger, and that counts as an act.
The dotted vertical line marks off where the merely physical events end and where human agency starts. Where this line has to be drawn is not obvious. A test would be that we speak of a human act if the agent can say that ‘she’ did something. The problem with this test is that it seems equally arbitrary when this can be said; the problem is only shifted.
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Arguably it is a matter of assigning meaning to what happens and to the ascription of responsibility where we assume that agency starts and merely physical events stop. The borderline may vary from one culture to another and from one issue (e.g. liability or blame) to another. We should not look at logic to help us find this borderline.
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From now on we will only consider the events which are classified as acts.
An interesting phenomenon is that an act of one type may also count as an act of some other type.
This is not to be confused with the phenomenon that an act may belong to two types which are independent of each other. E.g. telling a joke may at the same time be a case of wasting one’s time.
It starts with a basic act, the ‘lowest’ level at which an event is described as an act. In the present example this is moving one’s arm and finger.
The presence of a light button near the agent’s finger makes that this movement boils down to pushing a light button. Notice that this involves both an element of causality (the button is touched; marked blue) and an element of ascription based on culture (light buttons are a cultural phenomenon; marked red). The effect of moving one’s finger is turned into the defining characteristic of the new description level.
The electric circuit attached to the button makes that pushing the button boils down to turning the light on (causes the light to turn on). The effect of pushing
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the button is turned into the defining characteristic of the new description level.
Notice that at this moment (and possibly one step earlier) a formal act has turned into a material one. It is possible to have heated philosophical debates on whether pushing the button and turning the light on are one and the same act, but anyway one physical movement counts as both a formal act and a material one.
The chain of acts can be extended, because by turning on the light our agent saved her husband from stumbling and thereby saved his life.
This last step is interesting, because it involves counterfactual reasoning.
Because it is assumed that the husband would have died if he stumbled (for whatever reason), preventing him from stumbling counts as (and in a sense causes) saving the husband’s life.
All causal steps in this example were based on physical relations between events. These relations do not depend on the classification as acts that we give these events. That is different in the next example.
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More or less the same story as in the previous example, be it that the effects of acts are in this example not bases on physical laws but on rules. That signing a piece of paper counts, under suitable conditions, as transferring a house is based on a static legal counts as rule.
That transferring a house makes somebody else becomes the owner of the house is based on a dynamic legal rule.
Notice that at this moment (and possibly one step earlier) a formal act has turned into a material one. Apparently it is not only physical laws, but also rules which can transform a formal act in to a material one.
That such a transfer also has the further effect that the distribution of real estate in society changes (a little bit) is both a causal effect and a matter of assigning meaning to what happened. This meaning assignment is not based on a legal rule or on any other rule that exists officially, but it is nevertheless sufficiently ‘objective’ to make it a consequence of the transfer that is hardly disputable.
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This example is based on an argument of the Dutch Supreme Court which decided that children who are born as the result of donor insemination have the right to know who their biological fathers are, and that this ‘right to know’ is a special case of the general right to human dignity.
Again more or less the same story, but now the counts as relations between 3,
4 and 5 are based on meaning assignments that do not depend on legal rules.
That informing the child amounts to respecting the right to know is based on a static legal rule.
This example was mainly introduced for the final step, because the step from respecting the right to know to respecting human dignity is not causal but constitutive: respecting the right to know is one way of respecting human dignity. This shows that not all additional classifications of acts are based on effects of causal laws or static or dynamic rules.
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What has the ontology of acts to do with GRs?
Agents, whether they be carbon- or silicon-based, can by definition only perform formal acts as basic acts. The ontology of acts illustrates how these formal acts can also count as material acts. This account does not distinguish between humans and machines. So in principle, intelligent machine agents might be able to comply with GRs.
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GRs that prescribe purely material acts are easy cases. If one accepts that machines can act (which is not obvious), then machines can comply with material GRs if it is possible that the prescribed states of affairs can come about.
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Semi-formal act types:
 An IA complies with a semi-formal GR if it performs a basic act which can be attributed to the agent as a (sincere) means to comply with the GR.
 What can be attributed depends on the causal, rule-based and constitutive relations which are assumed to exist between action types.
 The intention of the agent plays a crucial role in the attribution of an act.
However, most GRs prescribe semi-formal acts, and an event can only count as a semi-formal act if it can be ascribed as such to the agent.
We have seen that ascription depends on a lot of factors, And one of them may be that people are unwilling to ascribe agency to machines: machines cannot act; only humans can and they may use machines in doing so (Dietz).
For those who do not want to be dogmatic about the issue, an interesting criterion might be that the possibility to act depends on being able to have the intention to act. (I am VERY brief here.)
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An act under description D of an agent A counts as intentional if:
 the act was caused (in an appropriate way)
 by an internal state of A
 that can be interpreted as an ‘intention’ to perform an act of type D.
This circumscription can apply to animal (including human) agents as well as machines.
What counts as intention is a matter of ascription
(‘intentional stance’).
It is controversial whether intentional states can/should be ascribed to agents that are not carbon-based.
Regrettably the discussion whether machines can act is more or less copied into the discussion whether machines can have intentions.
It may be useful to ascribe an intention to a potential agent if it is useful for prediction of the agents future ‘behaviour’ to treat it as having beliefs and desires (Dennett 1981). On this criterion machines can have intentions and can act intentionally. (Again, I am VERY brief here.)
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