Essays on normativity and describability of law.

Abstract

This dissertation is an inquiry into the nature of legal statements. Legal statements are normative statements, and they have a peculiar normative force that distinguishes them from other normative statements, including ethical statements. In uttering a legal statement, a speaker aims to initiate or maintain a form of coordination with his audience. I propose a novel expressivist or noncognitivist analysis of legal statements to account for or capture this peculiar normative force. In the first, ground-clearing chapter, I scrutinize Ronald Dworkin's influential diagnosis and criticism of H. L. A. Hart's analysis of legal statements. I take issue with both Dworkin's interpretation of Hart's analysis and his argument to the effect that Hart is unable to account for some genuine legal disagreements. In the second, largely historical chapter, I argue for an interpretation of Hart's analysis of legal statements that departs sharply from Dworkin's influential interpretation. In effect, I argue that Hart developed an expressivist or noncognitivist analysis of legal statements that bears strong influences of his predecessors and contemporaries who advocated expressivist or noncognitivist analyses of ethical statements. The third chapter is the heart of the dissertation. In it, I point to a number of problems with Hart's analysis and then revise it in a series of steps to eventually arrive at a novel expressivist or noncognitivist analysis. What results is an analysis that portrays a speaker of a legal statement as aiming at initiation or maintenance of a certain form of coordination with his audience. In the fourth and final chapter, I confront Joseph Raz's arguments that question the viability of the sort of analysis of normative statements that Hart, and following him I, offer. I argue that the analysis I propose in chapter 3 can be naturally extended to explain uncommitted uses of the legal language. And I also argue in favor of what may be called describability---the assumption that the workings of normative discourses can be characterized adequately in purely descriptive language, without resorting to any normative predicates.