A critical discussion of Kelsen's philosophy of law.

H. L. A. Hart is heir and torch-bearer of a great tradition in the philosophy of law which is realist and unromantic in outlook. It regards the existence and content of the law as a matter of social fact whose connection with moral or any other values is contingent and precarious. His analysis of the concept of law is part of the enterprise of demythologising the law, of instilling rational critical attitudes to it. Right from his inaugural lecture in Oxford (...) he was anxious to dispel the philosophical mist which he found in both legal culture and legal theory. In recent years he has shown time and again how much the rejection of the moralizing myths which accumulated around the law is central to his whole outlook. His essays on “Bentham and the Demystification of the Law” and on “The Nightmare and the Noble Dream” showed him to be consciously sharing the Benthamite sense of the excessive veneration in which the law is held in Common Law countries, and its deleterious moral consequences. His fear that in recent years legal theory has lurched back in that direction, and his view that a major part of its role is to lay the conceptual foundation for a cool and potentially critical assessment of the law are evident. (shrink)

Abstract.According to the normative theory of legal science, juristic ought‐sentences describe rules, since legal science just deals with rules, and rules cannot be described but by means of ought‐sentences. The author challenges this view. Two different constructions of “describing rules” are proposed: Namely, either interpreting or stating the validity of rules. “Interpreting rules,” in its turn, can be understood in three different senses: listing all the possible meanings of rule‐formulations, reporting the different interpretations a rule‐formulation has in fact received by (...) courts, or ascribing meaning to rule‐formulations. However, the author argues that ought‐sentences are not the proper tools to accomplish such tasks. At the same time, juristic ought‐sentences cannot be understood as validity statements, since they neither mention any rule whatsoever, nor include the term “valid.” Further, if validity‐statements were ought‐sentences, their logical behaviour would reflect the logic of rules themselves. However, as the late Kelsen argued, things do not run this way, since two inconsistent ought‐sentences, if understood as validity statements, can paradoxically both be true, as well as both false. Hence, validity‐statements cannot be reduced to ought‐sentences iterating the rules which they (are supposed to) refer to. (shrink)

A spectre is haunting legal positivists – and perhaps jurisprudes more generally – the spectre of the normativity of law. Whatever else law is, it is sometimes said, it is normative, and so whatever else a philosophical account of law accounts for, it should account for the normativity of law[1]. But law is at least partially a social matter, its content at least partially determined by social practices. And how can something social and descriptive in this down-to-earth kind of way (...) be normative?[2] This is presumably a problem for any theory of law, but it is especially acute for legal positivism, according to which (roughly speaking) all there is to facts about legality are such descriptive social facts. If this is so, the thought goes, the task of accommodating the law’s normativity immediately becomes both more daunting, and more urgent[3]. Unfortunately, though, it is entirely unclear what the problem of the normativity of law is supposed to be. Indeed, I suspect that there is no one problem here, as different people seem to have in mind different problems when they use this unhelpful phrase[4]. At least one family of issues people seem to have in mind when they talk about the normativity of law is a host of issues pertaining to the reason-giving force of the law. The law, it is sometimes said, gives reasons for action, and a theory of law should accommodate this obvious fact. But even when we focus just on questions regarding the reason-giving force of the law (and from now on I will restrict myself to just those, leaving other things people may have in mind when they talk about the normativity of law for another occasion), it is still not clear what the problem is. Indeed, my main purpose in this paper is to make some progress in understanding the relevant question here. And my conclusion is going to be somewhat skeptical: Once we are clear on what reason-giving in general consists in, and on what reason-giving powers the law actually has, there is not much by way of a problem here that needs to be solved, not a deep and interesting phenomenon here that theories of law need to accommodate, and that therefore places adequacy constraints on plausible theories of the nature of law.. (shrink)

This article discusses some of the ways in which natural language can express modal information – information which is, to a first approximation, about what could be or must be the case, as opposed to being about what actually is the case. It motivates, explains, and raises problems for Angelika Kratzer's influential theory of modal auxiliaries, and introduces a new approach to one important debate about the relationships between modality, evidentiality, context change, and imperative force.

1. Implicature: some basic oppositions IMPLICATURE is a component of speaker meaning that constitutes an aspect of what is meant in a speaker’s utterance without being part of what is said. What a speaker intends to communicate is characteristically far richer than what she directly expresses; linguistic meaning radically underdetermines the message conveyed and understood. Speaker S tacitly exploits pragmatic principles to bridge this gap and counts on hearer H to invoke the same principles for the purposes of utterance interpretation. (...) The contrast between the said and the meant, and derivatively between the said and the implicated (the meant-but-unsaid), dates back to the fourth century rhetoricians Servius and Donatus, who characterized litotes—the figure of pragmatic understatement—as a figure in which we say less but mean more (“minus dicimus et plus significamus”; see Hoffmann 1987 and Horn 1991a for discussion). In the classical Gricean model, the bridge from what is said (the literal content of the uttered sentence, computed directly from its grammatical structure with the reference of indexicals resolved) to what is communicated is constructed through implicature. As an aspect of speaker meaning, implicatures are by definition distinct from the non-logical inferences that the hearer draws; it is a category mistake to attribute implicatures either to hearers or to sentences (e.g. P and Q) and subsentential expressions (e.g. some). But we can systematically (at least for generalized implicatures; see below) correlate the speaker’s intention to implicate q (in uttering p in context C), the expression p that carries the implicature in C, and the inference of q induced by the speaker’s utterance of p in C. (shrink)

A spectre is haunting legal positivists – and perhaps legal philosophers more generally – the spectre of the normativity of law. Whatever else law is, it is sometimes said, it is normative, and so whatever else a philosophical account of law accounts for, it should account for the normativity of law. Of the many different possible ways of understanding "the" problem of the normativity of law, I focus here on the one insisting on the need to explain the reason-giving force (...) of the law. But, I argue, once we are clear on just what reason-giving consists in, and on what claims about the reason-giving force of the law are at all plausible, accommodating the fact that the law gives reasons for action can be seen to be a pseudo-problem. In particular, not only doesn't legal positivism face an especially serious challenge here, but it can be seen to have a (modest) advantage over its competitors in accommodating one way in which the law can (perhaps) give reasons for action. (shrink)

In a range of contexts, one comes across processes resembling inference, but where input propositions are not in general included among outputs, and the operation is not in any way reversible. Examples arise in contexts of conditional obligations, goals, ideals, preferences, actions, and beliefs. Our purpose is to develop a theory of such input/output operations. Four are singled out: simple-minded, basic (making intelligent use of disjunctive inputs), simple-minded reusable (in which outputs may be recycled as inputs), and basic reusable. They (...) are defined semantically and characterised by derivation rules, as well as in terms of relabeling procedures and modal operators. Their behaviour is studied on both semantic and syntactic levels. (shrink)

Some philosophers hold that „ought‟ is ambiguous between a sense expressing a propositional operator and a sense expressing a relation between an agent and an action. We defend the opposing view that „ought‟ always expresses a propositional operator against Mark Schroeder‟s recent objections that it cannot adequately accommodate an ambiguity in „ought‟ sentences between evaluative and deliberative readings, predicting readings of sentences that are not actually available. We show how adopting an independently well-motivated contrastivist semantics for „ought‟, according to which (...) „ought‟ is always relativized to a contrast set of relevant alternatives, enables us to explain the evaluative-deliberative ambiguity and why the availability of these readings depends on sentential grammar. (shrink)

In this paper, written for a volume on the work of Robert Alexy, I discuss the idea that law makes certain distinctive claims, an idea familiar from the work of both Alexy and Joseph Raz. I begin by refuting some criticisms by Ronald Dworkin of the very idea of law as a claim-maker. I then discuss whether, as Alexy and Raz agree, law's claim is a moral one. Having arrived at an affirmative verdict, I discuss the content of law's moral (...) claim. Is it, as Alexy says, a claim to moral correctness? Or is it, as Raz says, a claim to moral authority? (shrink)

This is a note from an AMC session on Jeff Horty's (2012) book *Reasons as Defaults*.