In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as (...) well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish. (shrink)

ABSTRACTAt first sight, the work of the German legal philosopher and constitutional theorist, Robert Alexy, appears to offer a welcome counter-example to the general insulation of Anglo-American ju...

Some legal philosophers regard the use of deontic language to describe the law as philosophically significant. Joseph Raz argues that it gives rise to ‘the problem of normativity of law’. He develops an account of what he calls ‘detached’ legal statements to resolve the problem. Unfortunately, Raz’s account is difficult to reconcile with the orthodox semantics of deontic language. The article offers a revised account of the distinction between committed and detached legal statements. It argues that deontic statements carry a (...) Gricean generalized conversational implicature to the effect that the rules in question reflect the speaker’s own commitments. Detached legal statements are made when this implicature is either explicitly cancelled or when the conversational context is sufficient to defeat the implicature. I conclude by offering some tentative reflections on the theoretical significance of deontic language in the law. (shrink)

ABSTRACTThe aim of this paper is to show that general jurisprudence is in no need of reinvention. The sentiment shared by many contemporary legal philosophers that theories about the nature of law...

Legal rationalist: law claims to give its subjects reasons for action. Normative reasons intuition: Reasons for action being key, the obvious way to establish that law makes a practical difference in people's deliberations is by arguing that the law claims to give reasons for action to its subjects. Explanatory Reasons Intuition: "And while it is possible to be confused about our normative reasons, it seems unlikely that everyone is confused all the time; so the fact that people consistently take the (...) law as their motivating reason and guide their conduct by the law does seem to suggest that the law does provide normative reasons for its subjects." And if it’s a necessary feature of law that it claims authority, then the argu- ment seems to establish that law claims to provide reasons for its subjects. Schematically the argument as a whole goes like this: The law claims to be a legitimate authority. If a legitimate authority directs a subject to φ the subject is obligated to φ ). The fact that an agent is obligated to φ is a reason for her to φ. So the law claims that its directives are reasons......Obligations as Reason-Giving : the fact that A is obligated to φ is itself a reason for A to φ. Unfortunately for the Legal Rationalist, OAR is false. Legal obligation has certain features which mean that the fact that a certain action’s being legally obligatory cannot itself constitute a reason to perform that action." Will explain away the intuitions in terms of triggering, and show how law can make a normative difference that is consistent with the falsity of OAR. Law's claim, and normative impact, can be captured exclusively in terms of second-order reasons. PartofwhatHartisafterhereistheideathatdeliberationon the matter of whether or not to φ is closed or settled by the obligation. But deliberation is cut off because the law has reached some sort of conclusion or answer or verdict on the question of whether or not to φ. The legal obligation not to φ contains a practical verdict about φing: it is not to be done. This idea – that the legal obligation not to φ provides or contains a verdict that φing is not to be done – is the idea that legal obligation is verdictive. For something to be verdictive is for it to express or embody a verdict or conclusion as to what ought to be done. It is plausible to say that wrongness is verdictive. So to say that such-and-such an action would be wrong is to express a verdict on that action – it is one which should not be done. To get a handle on the idea of the verdictive it helps to contrast it with the contributory. A contributory consideration is one which contributes to the verdict, by increasing the weight on the verdict’s side. So that φing would harm someone, or would cause extreme suffering, or would have costs that vastly outweighed any benefits, say, would be contributory considerations on the side of the verdict that φing would be wrong." "Wrong" is verdictive, and so it cannot itself be a reason for the action - it cannot be a reason for itself. Obligation and wrong in law are very close, and obligation should be treated as verdictive. This shows us that OAR is false. (shrink)

Our paper has three parts. In Part 1, we discuss John Gardner’s thesis that the non-elliptical ascription of agency to law is a necessary and irreducible part of any adequate explanation of the activities of legal officials. We consider three explananda which might conceivably necessitate this ascription, and conclude that none in fact does so. In Part 2, we discuss two other theses of Gardner’s: that it makes no sense to ascribe to law the claim that there are legal obligations (...) , and that law’s claim is the claim that there are moral obligations . We take issue with Gardner’s arguments for , and suggest that is unwarranted in the absence of an argument that law makes any claims at all. In Part 3, we briefly argue that, insofar as it issues requirements, there are certain claims that law cannot but make. We conclude that if Gardner is right that law’s claims are those of certain of its officials, it is law-making and not law-applying officials who make law’s claim. (shrink)

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)