Conflicts of Norms and the Revision of Normative Systems

Author(s): Carlos E. Alchourrón

Source: Law and Philosophy, Vol. 10, No. 4 (Nov., 1991), pp. 413-425
Published by: Springer
Stable URL: https://www.jstor.org/stable/3504843
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 CARLOS E. ALCHOURRON

CONFLICTS OF NORMS AND THE

REVISION OF NORMATIVE SYSTEMS

Normative systems, i.e., sets of norms, have two

tions: a) to evaluate human actions, and b) to guid
The guidance and the evaluation based on a nor
be good or bad. Ethics is supposed to be the disc
the criteria for judging the virtues and defects of n
this sense the theory of justice is the branch of
developed in order to single out the best norma
ethically optimal order, and also to detect the d
systems that do not coincide with that optimum.
Although the substantial criteria for judging th
tive systems stem from ethical considerations, lo
cally normative logic, supplies a negative criterio
normative systems. For a logically inconsistent n
bad one, independently of its ethical content.
An inconsistent normative system requires sub
in order to become useful as a guide for behavio
should be given up, and probably some of them s
opposite ones in order to preserve the practi
system.
I believe that up to this point there is no controversy: Everyone will
admit that inconsistent normative systems should, for the sake of
practical usefulness, be changed in favor of consistent ones. Moreover,
I think that it will be accepted without objections that the identifica-
tion of the conditions under which a normative system is consistent or
inconsistent is a logical and not an ethical enterprise.
In a recent, very stimulating paper2 Risto Hilpinen has argued for

1This paper was presented at a conference 'Rights and the Philosophy of Law'
at the University of Miami, Coral Gables, Florida, March 25-27, 1988.
2 Risto Hilpinen, 'Conflict and Change in Norm Systems', in A. Frandberg and

Law and Philosophy 10: 413-425, 1991.

? 1991 Kluwer Academic Publishers. Printed in the Netherlands.

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414 Carlos E. Alchourron

the thesis (rather in fashion nowadays) that there is another, logical -

and consequently not ethical - defect of normative systems which
differs from inconsistency in that in its presence the practical functions
of the system can be preserved without modifying its normative
content. The defect in question is present when a system gives rise, in
a certain situation, to normative conflicts. The notion of normative
conflict - for mandatory norms - is defined by Hilpinen as follows:
"A norm conflict occurs when the person is subject (by the normative
system) to several requirements which cannot be simultaneously satis-
fied".3 A system that gives rise to normative conflicts is called by C. L.
Hamblin a "quandary system".4
Hilpinen's main idea is that a quandary system, although it requires
being implemented by measures that permit overcoming normative
conflicts arising from it, does not need any kind of revision or amend-
ment in order to remain practically useful. The system is, in this sense,
acceptable as it is because its conflicts may be overcome without any
modification of the system. This is so because a normative conflict
need not entail a logical inconsistency among the norms of the system.
In this respect a normative conflict is substantially different from a
conflict of beliefs, for "a conflict between beliefs is always a case of
incoherence". Therefore "a norm system can give rise to normative
conflicts without being logically inconsistent, and a system that allows
the possibility of conflict situations is not necessarily incoherent in a
sense that it would immediately require revision".5
In this paper I will argue a) that normative conflicts are produced
by a kind of normative inconsistency (conditional inconsistency, i.e.,
inconsistency modulo certain facts), and b) that the only way to over-
come normative conflicts is to revise the normative system that gives
rise to them.

M. Van Hoecke (eds.), The Structure of Law: Proceedings of the 2nd Benelux-Scandi-
navian Symposium in Legal Theory (Uppsala: lustus F6rlag, 1987), pp. 37-49.
3 Hilpinen, op. cit., p. 38.
4 See C. L. Hamblin, 'Quandaries and the Logic of Rules', Journal of Philosophical
Logic 1 (1972): 74-85.
5 See Hilpinen, op. cit., p. 37.

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Conflicts ofNorms 415

In order to present my view I will begin by laying down some

precise terminology.
Let us introduce the notion of a norm as the meaning (content)
expressed by a normative sentence of a normative language. I will
assume, briefly, that a normative language has the following structure:
1) A set of atomic act-sentences: a, b, c, ... which in the intended
interpretation stand for descriptions of elementary (in the context of
the language) human acts.
Moreover, act-sentences include the atomic act-sentences and also
the truth-functional compounds of act-sentences.
2) A set of atomic non-act-sentences: p, q, r, ... which in the
intended interpretation stand for the descriptions of facts which do
not consist of the relevant person's acts in his capacity as agent.
Moreover, non-act-sentences include atomic non-act-sentences as
well as truth-functional compounds of non-act-sentences.
3) The elements of the union set of act-sentences and non-act-
sentences, as well as their truth-functional compounds, are called
descriptive sentences.
4) An act-sentence preceded by a deontic operator is an atomic
norm-sentence. The deontic operators are: '0' for the notion of ought
and 'P' for the normative notion of may.
The atomic norm-sentences and the truth-functional compounds of
one or two norm-sentences as well as such compounds of a descriptive
sentence and a norm-sentence form the norm-sentences.
The intuitive idea behind these definitions is that a norm-sentence
is any sentence that contains a deontic operator. Moreover, since
deontic operators are used to qualify acts, the sentences to which they
are applied must be act-sentences. It is important to note that the
above definitions exclude the possibility of the occurrence of a deontic
operator in the scope of another, and hence iterated deontic modalities
are given up as meaningless.
Another point that deserves special mention is that conditional
norms of the type "a ought to be done in case p" will be represented
by a conditional whose consequent contains an O-sentence. Hence I
will not introduce any kind of dyadic deontic operators for that
purpose.

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416 Carlos E. Alchourron

Concerning the ontological question of the existence of norms,

there is a conception of normative existence according to which there
is (exists) a norm corresponding to each norm-sentence of the lan-
guage. In this sense, once the syntactic and semantical rules of a
normative language are given, there exist as many norms as meaning-
ful non-equivalent norm-sentences in the language. This notion of
existence should be kept in mind for the purpose of a comparison
with a more restricted notion to be introduced later.
Now, after having introduced the general notion of norm, I must
comment on the central notion of normative logic, that is, the notion
of normative inconsistency. Unfortunately nothing about this topic is
said in Hilpinen's paper, although his main interest is to compare this
notion with that of normative conflict. I think that this silence is due
to the fact that he takes normative inconsistency to be a clear, well-
known notion. If I am right in this psychological conjecture, Hil-
pinen's omission is justified up to a certain point. For we may take it
for granted that the so-called standard system of deontic logic is the
hard kernel of normative logic, and in that system the concept of
normative (syntactic) inconsistency can be easily defined. (A set of
sentences is normatively inconsistent iff a contradiction - the con-
junction of a sentence and its negation - follows from the set by the
use of the axioms and rules of the standard deontic system of logic).
But unfortunately the problem is not so simple, for the following
reasons. If we take as our pre-analytic paradigm that of legal norms,
and more particularly that of positively enacted legal norms, it is an
accepted commonplace that norm-sentences lack truth values. When
the legislator promulgates a statute, and hence a set of legal norms, his
sentences do not describe anything whose occurrence can turn the
sentences true or false; this is so because his dicta have a prescriptive
and not a descriptive function. Once we accept the premise that norms
do not have truth-values, the notion of normative consistency (and
inconsistency) becomes intrinsically problematic since we are not able
to use the standard semantic notion of a consistent set of sentences: a
set which admits at least one interpretation in which all its elements
are true.

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Conflicts of Norms 417

Since we are not able to use the standard notion of consistency

because its definition involves essentially the notion of truth, excluded
from the field of norms, how shall we reconstruct it? This is the most
urgent and difficult question in the philosophy of normative logic.
Since it is not possible to study this problem in the present paper to
the extent it deserves, I will limit myself to sketching an answer
closely related to Hilpinen's approach.
A norm expressed by a norm-sentence of the form 'Ox' (where 'x'
indicates the content of the form) is called a mandatory norm, and one
expressed by a norm-sentence of the form 'Px' a permissive norm.
Now I define two semantic relations, one for mandatory norms and
the other for permissive norms. I will say that each mandatory norm
requires the action referred to by the act-sentence which immediately
follows the deontic '0' operator, and a permissive norm authorizes the
action referred to by the act-sentence which immediately follows the
deontic 'P' operator. Hence 'Oa' requires a and 'Pa' authorizes a.
Related to the meaning and function of a mandatory norm is the
expectation that the agent involved performs the action required by
the norm and since this holds for each mandatory norm, we may say
that a set of mandatory norms is consistent iff it is possible to perform
all the actions required by the norms of the set, in other words, iff
there is an interpretation which makes true all the act-sentences which
immediately follow the occurrence of the deontic '0' operator in each
of the norm-sentences of the set.
In relation to permissive norms we expect that the agent has an
opportunity to perform the authorized action but we do not expect
the existence of an opportunity to perform all the actions authorized
by several permissions. So we may say that a set of permissive norms
(norm-sentences) is consistent iff it is possible to perform each of the
actions authorized by the norms of the set - more precisely, iff for
each of the act-sentences that immediately follows the deontic 'P'
operator in each of the norm-sentences of the set, there is an inter-
pretation which makes that act-sentence true.
Finally, a mixed set of mandatory and permissive norms is consis-
tent iff for each permissive norm-sentence there is an interpretation

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418 Carlos E. Alchourron

that satisfies the act-sentence contained in it (or makes the act-sen-

tence true) and also satisfies all the act-sentences contained in the
mandatory norm-sentences of the set.6
In order to be able to use these definitions it is necessary to con-
sider that the negation of a mandatory norm-sentence is a permissive
norm-sentence whose act-sentence is the negation of the act-sentence
contained in the original norm-sentence. Conversely, the negation of a
permissive norm-sentence is the mandatory norm-sentence whose act-
sentence is the negation of the act-sentence contained in the original
norm-sentence.

With some elementary and obvious extensions, added

truth-value functions into the previous notion of cons
define, in the standard way, a semantic notion of c
which validates precisely the theorems of the stand
deontic logic. (It should be noted that this semantic n
sequence does not entail that norms have truth values.)
Let us recall some main principles of this logic:

(N-l) O(a & b) (Oa & Ob)

(N-2) Oa -O~a
(N-3) Pa ~O-a
(N-4) Oa Pa
(N-5) P(a V b) (Pa V Pb)
Thus the standard deontic logic is our normative logic, i.e., our
logic of norms. This is also the logic of Hilpinen's "practical concept
of ought",7 hence this concept is the one represented by 'O' in our
normative language.
By a normative system I will understand the set of consequences of
a set of norms. So whenever a is a set of norms, Cn(a) is the system

6 Cf G. H. von Wright, Norm and Action (London: Routledge & Kegan Paul,
1963), pp. 141-44.
7 Hilpinen, op. cit., p. 39.

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Conflicts of Norms 419

determined by a. Any set of norms determine obligations, prohibi-

tions and permissions.
An act a is obligatory in relation to the set of norms a whenever a
norm that requires a belongs to the system determined by a. Ex-
pressing this concept by 'Oa' we have the following definition of
obligation:

(D-l) OaaiffOa E Cn(a)

An act a is forbidden (prohibited) by a set of norms a iff a norm that
requires not-a belongs to the system determined by a. Hence, writing
'Pha' for this concept we have the definition:

(D-2) Pha iff Oa E Cn(a)

The notion of permission is ambiguous in ordinary discourse.
Sometimes an act is said to be permitted by a set of norms when a
norm that authorizes the act belongs to the system determined by the
set. But sometimes the notion is used differently, and an act is said to
be permitted by a set of norms when the act is not forbidden by that
set. Since in the first sense the truth of a permission statement requires
a positive fact (the presence of the authorizing norm in the system), I
will call the notion involved "Positive Permission" and write it as 'P-'
Thus we have the following definition:

(D-3) P+a iffPa G Cn(a)

According to the second sense, the truth of a statement of permis-
sion requires a negative fact (the absence in the system of a prohibiting
norm), which corresponds to a negative act (an omission) of promulga-
tion by the authorities of the system. I will call the notion considered
"Negative Permission", and write it as 'Pa'. So we have the definition:

(D-4) Pa iffnot: O a E Cn(a)

In each of these definitions the definientia as well as the definienda
are sentences of the descriptive metalanguage of the normative-pre-
scriptive language previously presented. The norm-sentences that occur
in the definientia are used autonymously to refer to themselves, but
the act sentences that occur in the definienda are used, not autony-

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420 Carlos E. Alchourron

mously, but to refer to the corresponding human act. This use is

possible because I assume that the descriptive metalanguage contains
a translation of the descriptive sentences of the prescriptive object-
language.
The statements (of obligation, prohibition, and positive and negative
permission) defined above express true or false propositions about
human acts. These propositions assert how the acts are qualified by
different normative systems. For this reason it seems reasonable to call
the operators that occur in them "Normative Descriptive Operators",
in contradistinction to the "Normative Prescriptive Operators" of the
normative object language for the notions of 'ought' (0) and 'may' (P),
which we use to build norms (and norm-sentences), but not normative
propositions, out of acts (act-sentences).
Related to the above descriptive normative sentences we have a new
notion of the existence of a norm. When it is said, for example, that
the Argentinean legal system no longer contains a norm that forbids
divorce, what is asserted is that the prohibiting norm 'O-d' (with 'd'
for divorce) does not belong any more to the normative system deter-
mined by the set of enacted legal norms in force in Argentina. Clearly
this notion of existence is relational, for it depends on the set of norms
implicitly referred to. Hence a norm is said to exist or not (relative to
a set of norms) according to whether it belongs to the system deter-
mined by that normative set.
The descriptive normative operators introduced above by (D-1)-
(D-4) have a well-defined logic which is in many important respects
different from the logic of norms (the standard deontic logic). I will
illustrate below the differences in the logical behavior of the descrip-
tive and prescriptive operators, taking into account the principles of
normative logic mentioned before, i.e. (N-1)-(N-5).
The following principles are valid, that is, true for every action and
every set of norms:

(DN-1) Oa(a & b) iffOaa and Oab,

(DN-3-) Pa iffnot O a,
(DN-4+) IfOaa then P+a,
(DN-5-) P-(a V b)iffPTa or Pb.

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Conflicts of Norms 421

(The numeration shows the analogies with (N-1)-(N-5)).

But the following sentences are not valid:

(DN-2) If Oaa then not 0 a,

(DN-3+) Paa iff not O a,
(DN-4-) IfOaa then Paa,
(DN-5+) P+(aaV"'
b)iffP
a a a or
or Pb;

although the implication f

The above statements
ments are consistent, in
some act-sentence a they m

(not DN-2) Oaaand

(not DN-3+) P+a and O
not P+a and not Oaa

(not DN-4-) Oaa and n

(not DN-5+) P +(a V b)

The three statements: (n

and (not DN-4-) are equi
the normative set a is
(DN-2), (DN-4-) and/or
means that the set a is nor
The truth of the secon
normative set a is incom
normatively characteri
when the right to left i
a, then the set a is norm
tively characterized. N
known Principle of Proh
prohibited is positively p
here, is a contingent s
completeness of the set of
It should be pointed out

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422 Carlos E. Alchourron

operators is derived through definitions (D-1)-(D-4) from normative

logic (the standard system of deontic logic). Moreover, the general
theory of normative systems is expressible by the statements with the
normative descriptive operators.
R. Hilpinen's notion of obligation is a reconstruction of the notion
presented here. He rightly points out the failure of (DN-2), but he
thinks that the right to left implication in (DN-1) is not valid. His
argumentation is that given the rejection of (DN-2), if we accept that
implication we should have to admit that there may exist norms that
require contradictory actions. That is, a statement of the form

Oa(a & -a)

should be accepted as consistent. But since he thinks that such norms
cannot exist (so that the above formula is inconsistent), we should
reject the implication from right to left in (DN-1).
In our construction such a proposition may be true (since it is
consistent), even though the norm whose existence it asserts, viz.

O(a & -a)

is inconsistent. Therefore, when the former obligation proposition is
true, the set a is inconsistent because it entails an inconsistent norm.
Hilpinen's rejection would amount, with our stipulations concern-
ing the truth conditions of obligation sentences, to the view that no
normative system can contain a self-inconsistent norm (although it
may contain mutually inconsistent norms). According to our truth
conditions for obligation sentences such an assertion is false, and
consequently I take his argument as a symptom of a different analysis
of the descriptive notion of obligation. But since Hilpinen has not
presented the truth conditions for obligation sentences or an alterna-
tive account of inconsistency, I am unable to follow him in what he
accepts and rejects.
With these elements at hand we are in a position to come back to
Hilpinen's distinction between the notions of normative inconsistency
and normative conflict. Let us recall that he restricts his observations
to the domain of mandatory norms. Given this limitation, a set of
norm-sentences is inconsistent iff the set of act-sentences which

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 423
Conflicts of Norms

follows each occurrence of the '0' operator in each of the norm-

sentences is inconsistent. More intuitively, a set of norm-sentences is
inconsistent when it is not possible to fulfil all the requirements of the
set. That is, when the following two obligation statements are true:

Oaa and
Oaa

But this is exactly Hilpinen's definition of normative conflict. Thus,

since normative inconsistency and normative conflict have the same
definition there cannot be any difference between them. This looks
like a reductio ad absurdum of Hilpinen's thesis. So it is reasonable to
think that there should be some misunderstanding of Hilpinen's
thought. I believe that one can discover his real intention from his
statement: "A system of norms need not be formally inconsistent to
generate normative conflicts: the conflicts may depend on contingent
circumstances, on the agent's past actions or on circumstances which
are beyond his control".8 The following example may illustrate a case
in which a consistent set of norms can give rise to a normative
conflict.
Assume that we have a set of norms with just the following two:

(i) Judges ought to punish all those who have committed a

crime.

(ii) Judges ought not punish those who are under age.

This normative set is consistent; nevertheless it will put judges into

a normative conflict whenever they are confronted with a case of a
minor who has committed a crime.
In order to give precision to this idea let us say that a set of norms
a is inconsistent modulo a set of facts F (a set of descriptive sentences)
when the union of a and F (a + F) is inconsistent. If we define the
proposition that an action a is obligatory (in relation to the set a),

8 Hilpinen, op. cit., p. 39.

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424 Carlos E. Alchourron

given the facts F, as

(D-5) (a +F)a iffOa E Cn(a + F)

then the previous definition of inconsistency modulo certain facts
(conditional inconsistency) is equivalent to the joint truth of the
following two propositions:

O(a +F)a

O(a+F) a

These propositions reflect the conflict generated by the norms (i)

and (ii) when a judge is confronted with the following facts:

(iii) X has committed a crime.

(iv) X is under age.

If we take F to be the set of facts (iii) and (iv), a to represent a

judge's action of sanctioning X, and a the set of norms (i) and (ii), the
truth of the previous two normative propositions can be proved by
means of (D-5).
It should be noticed that the two previous normative propositions
define the general notion of conditional inconsistency, for they are
true when and only when a set of norms a is inconsistent modulo
certain facts F.

A set of norms may be inconsistent modulo certain facts and consis-

tent modulo other facts. An inconsistent set is a set inconsistent modulo
the empty set of facts. Hence the notion of normative conditional
inconsistency is a generalization of the notion of normative incon-
sistency. Normative conditional inconsistency is a kind of normative
conflict. I think that it is equivalent to Hilpinen's notion of normative
conflict. So it is true that we may have a consistent set of norms that
gives rise to normative conflicts, because the system may be inconsis-
tent modulo certain facts.
Now there remains the problem of whether it is possible to over-
come the conditonal inconsistency of a set of norms without any
revision of the set.

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Conflicts of Norms 425

Let us first introduce some terminology that describes the change of

a normative system. I will call a change an extension of a set of norms
when we simply add a norm to the set, and a change in which we give
up some of the norms of the set, a contraction of the set of norms. I
will call a change a revision of a set of norms when we give up some
of its norms and add afterwards other norms incompatible with those
given up (a revision is an extension of a contraction). Any of these
changes will be called an amendment of the system.
Let us assume that a set a is inconsistent modulo the set of facts F
(moreover, we assume that the descriptive sentences of F are true). Is
a able to perform its practical function as a guide for behavior? I
believe that the answer to this question is negative, for the system
overdetermines human behavior since all actions and omissions are
required.
I think that Hilpinen's positive answer stems from a switch in the
level of analysis. I believe that he is thinking of the following situation.
Suppose that we have a consistent set of general norms inconsistent
relative to certain individual facts because under the circumstances in
question a certain agent is subject to opposite individual norms. From
this it does not follow that for another agent or for different facts the
set cannot remain practically useful, so we may refuse to apply the
system on that occasion and continue to use it without any amend-
ment on other occasions. But what is the moral of this argument? The
system can be used on all those occasions on which it is consistent
modulo the facts of the case but cannot be used when it is inconsistent.

Faculty of Philosophy and Letters,

University of Buenos Aires,
Buenos Aires,
Argentina

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