According to H.L.A. Hart's analysis, to utter an internal legal statement is partly to express an acceptance of a set of norms. This article attempts to defend Hart's conception of internal legal discourse by responding to the following three lines of criticism that can be found in Joseph Raz's writings: (i) that Hart's analysis fails to account for what Raz calls ‘detached legal statements’; (ii) that Hart's deployment of the notion of acceptance in his analysis vitiates his legal positivist project (...) because such acceptance necessarily amounts to moral endorsement; and (iii) that Hart is wrong to assume that normative practices, including discursive legal practices, can be characterized satisfactorily by deploying only descriptive statements. I argue that Hart's theory, or at least a theory along the lines that Hart developed, has sufficient resources to handle satisfactorily these criticisms. His world is a noonday world in which sharply outlined figures, most of them more than a little singular, act in describable ways against perceptible backgrounds. Clifford Geertz, speaking of Sir Edward Evan Evans-Pritchard. (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.

In this paper I offer an account of the meaning of must and can within the framework of possible worlds semantics. The paper consists of two parts: the first argues for a relative concept of modality underlying modal words like must and can in natural language. I give preliminary definitions of the meaning of these words which are formulated in terms of logical consequence and compatibility, respectively. The second part discusses one kind of insufficiency in the meaning definitions given in (...) the first part, which arise from the ex falso quodlibet paradox of logical consequence. In stepwise fashion, I make an attempt to avoid most of the consequences of this paradox for the meaning definitions of must and can. (shrink)

I begin by reviewing classical semantics and the problems presented by normative conflicts. After a brief detour through default logic, I establish some connections between the treatment of conflicts in each of these two approaches, classical and default, and then move on to consider some further issues: priorities among norms, or reasons, conditional oughts, and reasons about reasons.

Can one consistently (i) be a positivist, and (ii) think that the internal attitude to the law is a moral attitude? Two objections are raised in the literature. The first is that the combination is straight-out contradictory. The second is that if the internal attitude is a moral attitude, those who take it cannot be positivists. Arguments from Shiner, Goldsworthy and Raz are examined. It is concluded that neither objection works. The arguments are based on scope errors, conflations of what (...) is said with what is implicated, and a false view of the distinction between detached and committed statements. (shrink)

Next SectionIn emphasizing the importance of the separability thesis, legal philosophers have inadequately appreciated other philosophically important ways in which law and morality are or might be connected with one another. In this article, I argue that the separability thesis cannot shoulder the philosophical burdens that it has been asked to bear. I then turn to two issues of greater importance to jurisprudence. These are ‘the moral semantics of law’ and ‘the normativity of theory construction in jurisprudence’. The moral semantics (...) claim is that legal content is best understood as moral directives about what is to be done and who is to decide what is to be done. The problem is that legal positivists typically hold that only social facts contribute to the content of law, and it is hard to see how a positivist can hold both the social-facts claim and the moral-semantics claim. I argue that not only are the two claims consistent with one another, but that legal positivists must hold some version of the moral semantics claim if they are to make sense of the claim that legal reasons purport to be content-independent moral reasons for acting. In Section 3 of the article, I take up the question of whether theory construction in jurisprudence is normative or descriptive. This is hard to do in part because so little attention has been paid to correctly formulating the issue. I suggest a demanding test for descriptivism; namely, that an adequate analysis of law can be provided entirely in terms of its formal features. I then defend this claim against three arguments designed to show because governance by law is necessarily desirable or valuable that, we cannot characterize law without making reference to those values or to other material features of law. This constitutes a limited but powerful defence of descriptive jurisprudence. (shrink)

The expressivist advances a view about how we explain the meaning of a fragment of language, such as claims about what we morally ought to do. Critics evaluate expressivism on those terms. This is a serious mistake. We don’t just use that fragment of language in isolation. We make claims about what we morally, legally, rationally, and prudentially ought to do. To account for this linguistic phenomenon, the expressivist owes us an account not just of each fragment of language, but (...) of how they weave together into a broader tapestry. I argue that expressivists face a dilemma in doing so: either they fail to explain the univocality of terms like 'ought', or they fail to explain when normative statements are and aren't inconsistent. (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)

The standard Kratzerian analysis of modal auxiliaries, such as ‘may’ and ‘can’, takes them to be univocal and context-sensitive. Our first aim is to argue for an alternative view, on which such expressions are polysemous. Our second aim is to thereby shed light on the distinction between semantic context-sensitivity and polysemy. To achieve these aims, we examine the mechanisms of polysemy and context-sensitivity and provide criteria with which they can be held apart. We apply the criteria to modal auxiliaries and (...) show that the default hypothesis should be that they are polysemous, and not merely context-sensitive. We then respond to arguments against modal ambiguity. Finally, we show why modal polysemy has significant philosophical implications. (shrink)

This paper argues that a standard analysis of modals from formal semantics suggests a solution to the detaching problem — the problem of whether un-embedded 'ought'-claims can "detach" (be derived) from hypothetical imperatives and their antecedent conditions. On a broadly Kratzerian analysis, modals have a skeletal conventional meaning and receive a particular reading (e.g., deontic, epistemic, teleological) only relative to certain forms of contextual supplementation. I argue that 'ought'-claims can detach — subject to an important qualification — but only as (...) long as the 'ought's in the conditional premise and conclusion are interpreted relative to the same ordering sources. Although modus ponens can be shown to fail with hypothetical imperatives, the cases in question do not constitute a failure of detachment in the sense that ethicists have cared about. Rival wide-scoping accounts are proven to be linguistically problematic. They make incorrect predictions about the meanings of hypothetical imperatives, and founder in response to quantificational variants of the detaching problem. (shrink)