Interpreting Action with Norms: Responsibility and the Twofold Nature of the Ought‐Implies‐Can Principle

• Published date: 01 December 2024
• Author: Sebastián Figueroa Rubio
• Date: 01 December 2024
• DOI: http://doi.org/10.1111/raju.12417

© 2024 The Author(s). Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 37 No. 4 December (293–313)

Interpreting Action with Norms:

Responsibility and the Twofold Nature

of the Ought- Implies- Can Principle

SEBASTIÁN FIGUEROA RUBIO*

Abstract. This article examines the application of the ought- implies- can principle in the legal

domain, especially in the relationship between obligations and responsibility. It addresses

the challenge of cases in which an agent cannot do what is required of her, and yet it seems

plausible to say that she has an obligation. To deal with these cases, two parallel distinctions

are made: between rules of conduct and rules of imputation, and between doings and things

done. It is proposed that these distinctions show that the principle operates in two differ-

ent but complementary ways: as part of prescriptive relations and as part of responsibility

practices.

For what the king fundamentally insisted upon was that his authority should be respected.

He tolerated no disobedience. He was an absolute monarch. But, because he was a very good

man, he made his orders reasonable.

“If I ordered a general,” he would say, by way of example, “if I ordered a general to change

himself into a sea bird, and if the general did not obey me, that would not be the fault of the

general. It would be my fault.”

—Antoine de Saint- Exupéry, The Little Prince (1943)

1. Introduction: Legal Obligations and Liability- Responsibility

In the modern age, law is structured into legal systems understood as institutional

normative orders that organise an important part of social life. With the help of legal

norms, people can guide their own behaviour, assess behaviour as lawful or unlawful,

and hold others responsible for unlawful behaviour. The following pages focus on how

we can interpret some of the relationships between these ideas, with an emphasis on

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution

and reproduction in any medium, provided the original work is properly cited.

* I would like to thank Carlos González Bellene, Alejandra Olave, Giorgio Pino, Giovanni Battista Ratti,

Verónica Rodríguez- Blanco, and two anonymous reviewers, as well as the audiences in Rome and Santiago,

for helpful discussions and feedback. Special thanks are due to the Tarello Institute for Legal Philosophy of

the University of Genoa for supporting this work as part of a Seal of Excellence visiting fellowship.

Sebastián Figueroa Rubio

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Ratio Juris, Vol. 37, No. 4© 2024 The Author(s). Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

how the principle of “ought implies can” (hereafter OIC) can be understood in a legal

context.1

The OIC principle states that whenever we identify an obligation, it must be possible

to fulfil this obligation. Consequently, judgments expressed in statements such as “It is

forbidden to do that,” “She did wrong,” or “You should not have done that” are cor-

rect only if the object of the judgment is something that can be done. In this sense, the

principle introduces some constraints in determining the meaning of ought statements.

There are some features of modern law that make the application of this principle

dubious. Modern law is highly institutionalised, and the shaping of legal norms bears

this signature. On the one hand, we have access to legal norms primarily through

texts enacted by public authorities. These texts express what is required of people,

but they do not contain substantive reasons or implicit principles that justify them.

On the other hand, the authorities are political sovereigns and there are in principle

no limits to what they can demand of the people. What the law requires can there-

fore change depending on the goals and interests of the authorities. The difference

with morality is that moral requirements do not change just because people’s goals

change. This, together with the level of arbitrariness with which legal authorities

are allowed to act, suggests that some constraints on the content of legal obligations

(such as those of OIC) are not applicable.

In the following, I will deal with statutory law, because the above- mentioned

characteristics are clearly evident in that legal source. I will understand the creation

of legal obligations through statutory law as being configured by what Bruno

Celano(2013, 134–5) has called a “prescriptive relationship.”2 Legal authorities enact

legal texts that are understood as an expression of requirements for citizens. These

requirements help people to know what is legally expected of them and others. Since

they are normative authorities, the requirements are interpreted as prohibitions, ob-

ligations, and permissions that define what is legally permissible. I will focus on the

obligations that arise from legal rules that require people to do certain things.

As far as the concept of responsibility is concerned, I will deal with what H. L. A.

Hart called legal liability- responsibility, on which responsibility is so understood:

“When legal rules require men to act or abstain from action, one who breaks the law

is usually liable, according to other legal rules, to punishment for his misdeeds, or to

make compensation to persons injured thereby, and very often he is liable to both

punishment and enforced compensation” (Hart1967, 349). Thus, when we say that

someone is responsible, we are saying that she is liable to punishment because she

has failed to fulfil a legal requirement.3

1 This is a text on legal theory and although I will analyse some arguments developed in ethics,

I am not concerned here with how the principle is to be understood in normative ethics or ap-

plied ethics. I am not sure whether the argument presented here can be valid in those fields of

practical philosophy.

2 Celano is following Georg von Wright’s notion of prescription (von Wright 1963, chap. 5) and

describes it as “the kind of relationship which comes into being, by virtue of the happy issuing

of a prescription, between a lawgiver, on the one hand, and those to whom her prescription is

addressed, on the other hand” (Celano2013, 135). For the sake of simplicity, I will refer to nor-

mative subjects as citizens.

3 For the sake of simplicity, I will only take into account cases of direct subjective (personal) re-

sponsibility for actions in which the person who is liable to a sanction is the same person who has

violated a duty with those actions (on strict liability, see Gardner2019, 176; Vranas2007, 199 n. 6).