Legal statements and normative language

Law and Philosophy

Volumn 30, Issue 2, 2011, Pages 167-199

  D'Almeida, Luís Duarte ^a,b  

^a UNIVERSITY OF OXFORD   (United Kingdom)

^b UNIVERSITY OF LISBON   (Portugal)

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[No Author keywords available]

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EID: 79952280538     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-010-9089-3     Document Type: Article

References (220)

1. Practical Reason and Norms (first published 1975, OUP 1990) 170.
2. 'Postscript' to The Concept of a Legal System (2nd edn, Clarendon Press 1980) 235.
3. 'Preface to the First Edition' (1979) in The Authority of Law (2nd edn, OUP 2009) xi.
4. Practical Reason and Norms (first published 1975, OUP 1990) 169.
5. 'Postscript', The Concept of a Legal System (2nd edn, Clarendon Press 1980) 235.
6. 'Postscript', The Concept of a Legal System (2nd edn, Clarendon Press 1980) 235.
7. 'Preface to the First Edition', The Authority of Law (2nd edn, OUP 2009) xi.
8. In chronological order of first publication: 'On Lawful Governments' (1970) 80 Ethics 296-305.
9. 'Kelsen's Theory of the Basic Norm' (1974) in The Authority of Law (2nd edn, OUP 2009) 122-45.
10. Practical Reason and Norms (first published 1975, OUP 1990).
11. 'Kelsen's General Theory of Norms' (1976) 6 Philosophia 495-504.
12. 'Legal Validity' (1977) in The Authority of Law (2nd edn, OUP 2009) 146-59.
13. 'Promises and Obligations' in P.S.M. Hacker and J. Raz (eds), Law, Morality, and Society. Essays in Honour of H.L.A. Hart (Clarendon Press 1977) 210-28.
14. 'Preface to the First Edition' (1979) (2nd edn, OUP 2009) ix-xiii.
15. 'Legal Positivism and the Sources of Law' (1979) in The Authority of Law (2nd edn, OUP 2009) 37-52.
16. 'Legal Reasons, Sources, and Gaps' (1979) in The Authority of Law (2nd edn, OUP 2009) 53-77.
17. 'Postscript' (1980) The Concept of a Legal System 209-38.
18. 'The Purity of the Pure Theory' (1981) in The Authority of Law (2nd edn, OUP 2009) 293-312.
19. 'Legal Rights' (1984) in Ethics in the Public Domain. Essays in the Morality of Law and Politics (Clarendon Press 1994) 238-60.
20. 'On the Nature of Law' (1996) in Between Authority and Interpretation (OUP 2009) 91-125.
21. 'Legal Positivism and the Sources of Law' (1970) 80 Ethics 38.
22. 'Legal Positivism and the Sources of Law' (1970) 80 Ethics 38.
23. 'Legal Positivism and the Sources of Law' (1970) 80 Ethics 38.
24. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 53.
25. 'Legal Validity' (1970) 80 Ethics 158.
26. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 53.
27. 'Legal Positivism and the Sources of Law' (1970) 80 Ethics 38.
28. 'Legal Positivism and the Sources of Law' (1970) 80 Ethics 38.
29. 'Legal Validity' (1970) 80 Ethics 158.
30. 'The Purity of the Pure Theory' (1970) 80 Ethics 303.
31. 'The Purity of the Pure Theory' (1970) 80 Ethics 305.
32. 'The Purity of the Pure Theory' (1970) 80 Ethics 306.
33. Cf. Practical Reason and Norms (first published 1975, OUP 1990) 127-28.
34. Cf. 'The Purity of the Pure Theory' (1970) 80 Ethics 306.
35. 'Legal Validity' (1970) 80 Ethics 158.
36. 'Legal Validity' (1970) 80 Ethics 158.
37. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 53.
38. 'Kelsen's General Theory of Norms' (1970) 80 Ethics 498.
39. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 53.
40. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 53.
41. 'The Purity of the Pure Theory' (1970) 80 Ethics 301.
42. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 53.
43. 'The Purity of the Pure Theory' (1970) 80 Ethics 301.
44. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 63.
45. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 63.
46. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 65.
47. 'Legal Validity' (1970) 80 Ethics 153.
48. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 65.
49. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 66.
50. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 54.
51. 'The Purity of the Pure Theory' (1970) 80 Ethics 306.
52. 'Legal Validity' (1970) 80 Ethics 157.
53. 'Preface to the First Edition', The Authority of Law (2nd edn, OUP 2009) xi.
54. 'The Purity of the Pure Theory' (1970) 80 Ethics 297.
55. 'The Purity of the Pure Theory' (1970) 80 Ethics 303.
56. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 53.
57. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 53.
58. Cf. Practical Reason and Norms (first published 1975, OUP 1990) 211, endnote 3.
59. Cf. Practical Reason and Norms 127-28, 171-72, 177.
60. 'Postscript', The Concept of a Legal System (2nd edn, Clarendon Press 1980) 235.
61. Cf. Practical Reason and Norms (first published 1975, OUP 1990) 172.
62. Cf. 'Legal Validity' (1970) 80 Ethics 153ff.
63. 'The Purity of the Pure Theory' (1970) 80 Ethics 307f. For Hart's original account
64. The Concept of Law (2nd edn, OUP 1994) 55ff, 82ff, 100ff, 137-38, 146-47, 155, 201ff, 217-18, 235, 254-55, and the endnotes at 289 and 291. For useful discussion of Hart's distinctions.
65. The 'Appendix' to Neil MacCormick's Legal Reasoning and Legal Theory (Clarendon Press 1978) 275-92.
66. His H.L.A. Hart (2nd edn, Stanford University Press 2008) 47ff.
67. Pedro Múrias, 'Weber e Hart sobre as Perspectivas Externa e Interna: Uma Releitura' in Estudos em Homenagem ao Prof. Doutor Sérvulo Correia (vol I, Coimbra Editora 2010) 105ff.
68. Cf. 'Postscript', The Concept of a Legal System (2nd edn, Clarendon Press 1980) 235-36.
69. 'The Purity of the Pure Theory' (1970) 80 Ethics 306-07.
70. Practical Reason and Norms (first published 1975, OUP 1990) 127-28.
71. 'The Purity of the Pure Theory' (1970) 80 Ethics 305-06.
72. Cf., e.g., Hart's 'Legal and Moral Obligation', in A.I. Melden (ed) Essays in Moral Philosophy (University of Washington Press 1958) 92-93.
73. The Concept of Law Legal Validity' (1970) 80 203, 257.
74. 'The Purity of the Pure Theory' (1970) 80 Ethics 307.
75. 'The Purity of the Pure Theory' (1970) 80 Ethics 307.
76. 'Legal Validity' (1970) 80 Ethics 154-55.
77. 'The Purity of the Pure Theory' (1970) 80 Ethics 307.
78. Raz's distinction between someone 'who fully endorses a rule, i.e. believes that its subjects ought to follow it, and one who weakly accepts it, i.e. believes that he should follow it himself', in 'Legal Validity' (1970) 80 Ethics 155, footnote 13.
79. 'The Purity of the Pure Theory' (1970) 80 Ethics 307.
80. 'The Purity of the Pure Theory' (1970) 80 Ethics 308.
81. For Hart's own summary of this objection, which he found 'unrealistic', and his reply to Raz, cf. 'Legal Duty and Obligation', in his Essays on Bentham. Jurisprudence and Political Theory (Clarendon Press 1982) at 153-61.
82. Raz's retort in 'Hart on Moral Rights' (1984) 4 Oxford Journal of Legal Studies, 129ff.
83. Kevin Toh discusses Raz's argument at some length in 'Raz on Detachment, Acceptance, and Describability' (2007) 27 Oxford Journal of Legal Studies, 414-21. I am not concerned with this particular point in the present paper.
84. 'The Purity of the Pure Theory' (1970) 80 Ethics 308.
85. 'The Purity of the Pure Theory' (1970) 80 Ethics 308.
86. 'The Purity of the Pure Theory' (1970) 80 Ethics 308.
87. 'The Purity of the Pure Theory' (1970) 80 Ethics 309.
88. 'Legal Positivism and the Sources of Law' (1970) 80 Ethics 54.
89. 'Legal Validity' (1970) 80 Ethics 156, my emphasis.
90. 'The Purity of the Pure Theory' (1970) 80 Ethics 307.
91. 'The Purity of the Pure Theory' (1970) 80 Ethics 306.
92. 'The Purity of the Pure Theory' (1970) 80 Ethics 308.
93. Practical Reason and Norms (first published 1975, OUP 1990) 177.
94. Practical Reason and Norms (first published 1975, OUP 1990) 172.
95. I do not discuss in this paper how faithful to Kelsen's views Raz's 'reconstruction' actually is, although I find it quite unfaithful. The topic is debated. Hart, who had struggled with Kelsen's thoughts on normative statements in his essays 'Kelsen Visited' (1963) and 'Kelsen's Doctrine of the Unity of Law' (1968) - both included in his Essays in Jurisprudence and Philosophy (Clarendon Press 1983), at 286ff and 309ff
96. Respectively - came to concur with Raz that 'it was this distinction [between committed and detached statements] which Kelsen in effect was making' (cf. the 'Introduction' to the same volume, 15).
97. Michael Steven Green, e.g., seems to agree: cf. 'Kelsen, Quietism, and the Rule of Recognition', in Matthew D. Adler and Kenneth Einar Himma (eds), The Rule of Recognition and the U.S. Constitution (OUP 2009) 370-71.
98. The topic, cf. also Julie Dickson, 'Interpreting Normativity' in Timothy Endicott, Joshua Getzler, and Edwin Peel (eds), Properties of Law. Essays in Honour of Jim Harris (Oup 206) 21-42, esp. at 35-38.
99. But see, for criticism, Eugenio Bulygin, 'Enunciados Jurídicos y Positivismo: Respuesta a Raz' (1981), in Carlos E. Alchourrón and Eugenio Bulygin, Análisis Lógico y Derecho (Centro de Estudios Constitucionales 1991) 427-38, esp. 433ff.
100. Roberto J. Vernengo, 'Kelsen's Rechtssätze as Detached Statements', in Richard Tur and William Twining (eds), Essays on Kelsen (Clarendon Press 1986) 99-108.
101. James W. Harris, 'Kelsen, Revolutions, and Normativity', in Elspeth Attwooll (ed), Shaping Revolution (Aberdeen University Press 1991) esp. 5-7, and 'Kelsen's Pallid Normativity' (1996) 9 Ratio Juris, 94-117, esp. 112ff.
102. Uta C. Bindreiter, 'Presupposing the Basic Norm' (2001) 14 Ratio Juris, esp. 155-60.
103. Sylvie Delacroix, 'Hart's and Kelsen's Concepts of Normativity Contrasted' (2004) 17 Ratio Juris, 515-18.
104. Juan Carlos Bayón's apposite remark in La Normatividad del Derecho: Deber Jurídico y Razones para la Acción (Centro de Estudios Constitucionales 1991), footnote 28 at p. 28, and his general discussion at 27-36.
105. 'Legal Validity' (1970) 80 Ethics 156.
106. 'Promises and Obligations' (1970) 80 Ethics 225.
107. Practical Reason and Norms (first published 1975, OUP 1990) 175-76.
108. This example is given both in 'Kelsen's General Theory of Norms' (1970) 80 Ethics 500.
109. 'Legal Validity' (1970) 80 Ethics 156-57.
110. Cf. 'Kelsen's General Theory of Norms' (1970) 80 Ethics 500.
111. Practical Reason and Norms (first published 1975, OUP 1990) 175.
112. 'Legal Validity' (1970) 80 Ethics 157.
113. 'Postscript', The Concept of a Legal System (2nd edn, Clarendon Press 1980) 236-37, footnote 30.
114. 'Legal Validity' (1970) 80 Ethics 157.
115. Practical Reason and Norms (first published 1975, OUP 1990) 175.
116. Practical Reason and Norms (first published 1975, OUP 1990) 175.
117. Cf., most notably, Eugenio Bulygin, 'Enunciados Jurídicos y Positivismo: Respuesta a Raz' (1981), in Carlos E. Alchourrón and Eugenio Bulygin, Análisis Lógico y Derecho (Centro de Estudios Constitucionales 1991) 436-37.
118. Philip Soper also finds it 'difficult to see how anything is lost if the [detached] statement is simply regarded as a hypothetical': cf. 'Legal Systems, Normative Systems, and the Paradoxes of Positivism' (1995) Viii Canadian Journal of Law and Jurisprudence, 372, footnote 16.
119. Raz also suggests a linguistic device for contrasting detached and committed statements: the former, but not the latter, are 'compatible with "but one has no reason whatsoever to u"': cf. 'Postscript', The Concept of a Legal System (2nd edn, Clarendon Press 1980) 236, footnote 30.
120. This unhelpful ambiguity is often retained, if not enhanced, in the works of those who have adopted the notion. An example is John Finnis, who in Natural Law and Natural Rights (Clarendon Press 1980), at 233-37, takes up Raz's distinction between 'three types of statement' as a distinction between 'three senses' of 'normative statements', even if 'in all these cases one and the same grammatical form may be used' (cf. 'Postscript', The Concept of a Legal System 234-35, and 365). Finnis, moreover, indistinctly uses his specially constructed notation to refer to speakers as well as statements (cf. 'Postscript', The Concept of a Legal System 234-35).
121. But see on this point Cristina Redondo's discussion in Reasons for Action and the Law (Kluwer 1999) at 79ff. Redondo finds the 'detached'/'committed' distinction 'flawed' as a classification of statements rather than speakers: 'it projects a distinction on statements and propositions which is then justified entirely on a pragmatic level'.
122. But 'statements and their meanings do not belong to the class of objects that can be qualified as "committed" and "detached". Rather than to statements, these qualities can only be applied to the agents uttering them': cf. 'Postscript', The Concept of a Legal System 81.
123. Compare Matthew H. Kramer, In Defense of Legal Positivism. Law Without Trimmings (Oup 1999) 119.
124. Nicola Muffato has recently endeavoured to inject some precision into these aspects of detached statements, in 'Resta Qualcosa da Dire Sulla Polivocità degli Enunciati Deontici?' (2009) 9 Diritto e Questioni Pubbliche 9, 589-623.
125. For this he employs two distinctions: on the one hand, the well-known distinction between using and mentioning a given linguistic expression ('Postscript', The Concept of a Legal System 597ff).
126. The other hand, that between subscribing and not subscribing a linguistic expression ('Postscript', The Concept of a Legal System 600ff). The latter is owed to R.M. Hare, but Muffato argues against Hare's seeming conflation of subscription with use, and non-subscription with mention ('Postscript', The Concept of a Legal System 603). The distinctions are cross-cutting.
127. Razian detachment, Muffato submits, is a case of non-elliptic use (in direct speech), without subscription, of deontic sentences; but this amounts, in his view, to an impossibility: cf. 'Postscript', The Concept of a Legal System> 618ff, 623, and likewise his Norme e Discorsi su Norme (Aracne 2010) 17-98, esp. 85ff, and 94ff. This seems to me to mark a departure from some comments on detached statements made by him in 'Asserti Interni: Prescrizioni o Asserzioni?' (2007) Analisi e Diritto, e.g. at 20 and 24. Cf. also Bruno Celano's remarks in Dialettica della Giustificazione Pratica. Saggio Sulla Legge di Hume (Giappichelli 1994) 93-94, and 180, endnote 42.
128. 'Postscript', The Concept of a Legal System (2nd edn, Clarendon Press 1980) 238.
129. 'Kelsen's Theory of the Basic Norm' (1970) 80 Ethics 142.
130. 'Kelsen's Theory of the Basic Norm' (1970) 140ff, and Practical Reason and Norms (first published 1975, OUP 1990) 171.
131. 'Kelsen's Theory of the Basic Norm' (1970) 80 Ethics 140.
132. Practical Reason and Norms (first published 1975, OUP 1990) 171.
133. 'Postscript', The Concept of a Legal System (2nd edn, Clarendon Press 1980) 237.
134. 'The Purity of the Pure Theory' (1970) 80 Ethics 303-04.
135. Practical Reason and Norms (first published 1975, OUP 1990) 127-28.
136. Cf. also Robert Alexy's outline in 'Hans Kelsens Begriff des relativen Apriori', in Robert Alexy, Lukas H. Meyer, Stanley L. Paulson, and Gerhard Sprenger (eds) Neukantianismus und Rechtsphilosophie (Nomos 2002) 198-99, footnote 96.
137. For a discussion of the compatibility of Raz's legal point of view with the possibility of conflicting norms, Stanley L. Paulson, 'Kelsen without Kant', in Werner Krawietz and Georg Henrik von Wright (ed), Festschrift für Ernesto Garzón Valdés zum 65. Geburtstag (Duncker & Humblot 1992), esp. at 160-62.
138. Practical Reason and Norms (first published 1975, OUP 1990) 172, 175.
139. 'The Purity of the Pure Theory' (1970) 80 Ethics 305.
140. 'On the Nature of Law' (1970) 80 Ethics 113.
141. Cf. 'The Purity of the Pure Theory' (1970) 80 Ethics 304-05, my emphasis.
142. Practical Reason and Norms (first published 1975, OUP 1990) 128, 175.
143. 'Conditional' is sometimes contrasted by Raz with 'categorical' - cf. 'The Purity of the Pure Theory' (1970) 80 Ethics 304
144. 'Postscript', The Concept of a Legal System (2nd edn, Clarendon Press 1980) 236-37, footnote 30 - but this is surely not meant to rule out the possibility that a detached legal statement be conditional in content.
145. 'On the Nature of Law' (1970) 80 Ethics 114.
146. 'The Purity of the Pure Theory' (1970) 80 Ethics 305.
147. Practical Reason and Norms (first published 1975, OUP 1990) 176.
148. Practical Reason and Norms (first published 1975, OUP 1990) 176-77.
149. 'Legal Validity' (1970) 80 Ethics 153, 155.
150. The 'Postscript' to The Concept of a Legal System (2nd edn, Clarendon Press 1980) 236.
151. The doctrine of detached legal statements seems to me to be adumbrated avant la lettre in 'On Lawful Governments' (1970) 80 Ethics 304, where Raz observes that while 'in many contexts making a legal statement pragmatically implies an acceptance of the legal system presupposed by the statement', and even if '[w]hen stating "One ought to pay one's taxes punctually"', e.g., 'the speaker will usually be taken to accept the legal system according to which these statements are alleged to be true', there are nevertheless contexts in which 'the presumption does not apply' - such as 'when one is discussing foreign law' or 'when the speaker is a lawyer pursuing its profession'.
152. 'Legal Validity' (1970) 80 Ethics 153, my emphasis.
153. 'Legal Validity'. in Norm and Nature. The Movements of Legal Thought (Clarendon Press 1992) 139, Roger Shiner reads this reference to the 'force' of 'statements' as an 'evocation' of J.L. Austin's account of illocutionary force: he finds the 'theoretical grounding' of the concept of a detached statement to lie 'in the philosophy of language' (64), and that 'the terms "detached legal statement" and "ordinary legal statement" refer to illocutionary acts distinguished by their force' (144). But Shiner believes that Raz 'has not absorbed the lessons Austin was aiming to teach' (139).
154. His discussion at 137-45 and 158-59. There is a reply by Keith C. Culver, 'Shiner on "Detached Legal Statements": A Defense of Raz' (1995) Viii Canadian Journal of Law and Jurisprudence, 347-55.
155. Raz says that positivists 'can and should' adopt (T3), which 'is not essentially a natural lawyer's thesis', for 'only through it and the doctrine of statements from a point of view can we understand the possibility of detached statements which are all the same normative and not merely statements about other people's actions or beliefs etc': cf. 'Legal Validity' (1970) 80 Ethics 159 (my emphasis). But the argument I have reconstituted would, if right, show only that (T2) is compatible with a defence of either of the two 'semantic theses', (T1) or (T3). It would show, in other words, that the arguments for endorsing either thesis are independent of the arguments for endorsing or rejecting positivism. But it wouldn't show that positivism 'should' adopt (T3) - this claim presupposes that (T3) is sound.
156. Practical Reason and Norms (first published 1975, OUP 1990) 172.
157. Practical Reason and Norms (first published 1975, OUP 1990) 172.
158. Practical Reason and Norms (first published 1975, OUP 1990) 172, 175, 177. Detached statements are nonetheless said by Raz to be 'logically' secondary or 'parasitic' on (if irreducible to) committed statements, which are called 'primary'
159. Practical Reason and Norms (first published 1975, OUP 1990) 172, 211.
160. 'Legal Validity' (1970) 80 Ethics 159.
161. 'Legal Rights' (1970) 80 Ethics 254.
162. 'On the Nature of Law' (1970) 80 Ethics 112. Having in 'Hart's Expressivism and his Benthamite Project' offered a reconstruction of Hart's 'analysis' of committed, internal legal statements in The Concept of Law as an oblique, 'hybrid' expressivist 'analysis', Kevin Toh suggests that Hart 'had sufficient resources to account for detached legal statements' - by 'extending' to detached statements his 'expressivist' analysis of committed ones. This would have enabled Hart to specify 'the precise way in which the meaning of detached legal statements is parasitic on the meaning of committed ones': cf. Toh's 'Raz on Detachment, Acceptance, and Describability' Legal Duty and Obligation', in his Essays on Bentham. Jurisprudence and Political Theory (Clarendon Press 1982) 413, and his 'Hart's Expressivism and his Benthamite Project' (2005) 11 Legal Theory, at 89. Given that Toh proposes a 'simulation explanation' of detached statements, according to which a speaker who utters a detached statement 'does not display his commitment to the relevant laws but merely pretends or simulates such commitment' (cf. Toh's 'Raz on Detachment, Acceptance, and Describability' Legal Duty and Obligation', in his Essays on Bentham. Jurisprudence and Political Theory (Clarendon Press 1982) 413, and his 'Hart's Expressivism and his Benthamite Project' (2005) 11 Legal Theory, at 89.
163. 'Raz on Detachment, Acceptance, and Describability' 411-13), such an 'extension' of Hart's (reconstructed) 'expressivist' analysis of internal (committed) statements would yield, Toh suggests, a similarly 'expressivist' analysis of detached statements 'as expressions of pretended or simulated acceptances of norms' according to which a speaker who makes a detached statement 'expresses a psychological state that simulates an acceptance of some norm': cf. Toh's 'Raz on Detachment, Acceptance, and Describability' Legal Duty and Obligation', in his Essays on Bentham. Jurisprudence and Political Theory (Clarendon Press 1982) 413, and his 'Hart's Expressivism and his Benthamite Project' (2005) 11 Legal Theory, 414.
164. 'Hart's Expressivism' 89;
165. His 'An Argument Against the Social Thesis' (2008) 27 Law and Philosophy, 459. Given, however, that the sense in which Toh uses the term 'expressivism' entails a commitment to 'noncognitivism' (cf. 'Hart's Expressivism' 79), it is not clear that this extended analysis would still qualify as 'expressivist'. Are pretended or simulated acceptances necessarily conative mental states - are they indeed mental states or attitudes at all in the relevant sense?
166. Cf. also 'Postscript', The Concept of a Legal System (2nd edn, Clarendon Press 1980) 237, footnote 30, where Raz entertains a certain interpretation of detached statements, only to dismiss it for being 'empty and uninformative'.
167. 'Legal Validity' (1970) 80 Ethics 156.
168. Practical Reason and Norms (first published 1975, OUP 1990) 175.
169. This 'assumption' thus appears to work along the lines of a pragmatic presupposition.
170. The example is therefore enormously improved by Frederick Schauer's preference for desserts made with gelatine: cf. 'Fuller's Internal Point of View' (1994) 13 Law and Philosophy 287.
171. 'Postscript', The Concept of a Legal System (2nd edn, Clarendon Press 1980) 237.
172. Practical Reason and Norms (first published 1975, OUP 1990) 177.
173. Practical Reason and Norms (first published 1975, OUP 1990) 177.
174. Practical Reason and Norms (first published 1975, OUP 1990) 177.
175. Practical Reason and Norms (first published 1975, OUP 1990) 177.
176. Practical Reason and Norms (first published 1975, OUP 1990) 176.
177. Cf. 'Postscript', The Concept of a Legal System (2nd edn, Clarendon Press 1980) 235.
178. Cf. 'Preface to the First Edition', The Authority of Law (2nd edn, OUP 2009) xi.
179. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 53.
180. 'Legal Validity' (1970) 80 Ethics 154.
181. 'How Law Claims, What Law Claims', in Matthias Klatt (ed), Institutional Reason. The Jurisprudence of Robert Alexy (OUP, forthcoming).
182. It is worth observing, I think, that under this reading Bentham's and Austin's supposed 'reductivist' mistake would not be that they sought to reduce 'normative' statements to statements of social facts - but rather, perhaps, that they endeavoured to characterize the notion of a requirement (a 'command', in their preferred terminology) just in terms of the will of a de facto superior.
183. Thus that, by failing to account for the normative claim inherent (again, under this reading) in the very notion of a command they were unable properly to distinguish the making of a command from a demand made by a speaker over those who happen to be subject to the speaker's purely coercive dominion. and it may be that the charge of mistake is grounded on a previous stipulation that Bentham's and Austin's notion of command was stripped of any element of authority. Such a stipulation was of course made by Hart, and expressly so: cf. The Concept of Law Legal Validity' (1970) 80 19-20, 51.
184. As well as other related operators: 'Legally', 'It is the law that', etc. Cf. Practical Reason and Norms (first published 1975, OUP 1990) 172-73.
185. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 63ff.
186. Cf. the 'Introduction' to his Essays in Jurisprudence and Philosophy Eugenio Bulygin, 'Enunciados Jurídicos y Positivismo: Respuesta a Raz' (1981), in Carlos E. Alchourrón and Eugenio Bulygin, Análisis Lógico y Derecho (Centro de Estudios Constitucionales 1991) 14, and also the discussion in 'Legal Duty and Obligation' Legal Duty and Obligation', in his Essays on Bentham. Jurisprudence and Political Theory (Clarendon Press 1982) at 153 ff. in the second edition of H.L.A. Hart Legal Validity' (1970) 80 at 204, Neil MacCormick comments on this passage, finding it 'fully compatible' with his own earlier distinction of an 'internal', a 'hermeneutic' (or 'non-extreme external') and an 'extreme external' point of view - an account first introduced, under different labels, in the 'Appendix' to Legal Reasoning and Legal Theory Legal Validity' (1970) 80. MacCormick differentiates a 'cognitive' and a 'volitional' component in the 'internal' point of view, maintaining that 'for an understanding of norms and the normative' it is sufficient that one has 'full sharing of the former', and 'full appreciation of, but not necessarily sharing in', the latter.
187. This is the hallmark of what he originally dubbed the 'cognitively internal', and later renamed 'non-extreme external', or 'hermeneutic', point of view: cf the 'Introduction' to his Essays in Jurisprudence and Philosophy Eugenio Bulygin, 'Enunciados Jurídicos y Positivismo: Respuesta a Raz' (1981) 292.
188. H.L.A. Hart (1st edn, Edward Arnold 1981) 33ff.
189. The second edition Legal Validity' (1970) 80 at 47ff. Similarities to Raz's detached point of view have often been noted. So have the differences; in a passage already quoted in part - cf. 'Legal Validity'. in Norm and Nature. The Movements of Legal Thought (Clarendon Press 1992) 64 - Roger Shiner observes that MacCormick's notion is 'grounded in the philosophy of mind', Raz's 'in the philosophy of language'. MacCormick discussed Raz's notion at some length in his 'Comment', in Ruth Gavison (ed), Issues in Contemporary Legal Philosophy. The Influence of H.L.A. Hart (Clarendon Press 1987) 108ff.
190. Eventually took it up himself in the second edition of H.L.A. Hart Legal Validity' (1970) 80 at 221, endnote 23.
191. But he did remark that he found it preferable to speak of 'detached' judgments, for to use 'the term "detached statement" [] is to confuse a linguistic entity with a mental act': cf. Institutions of Law. An Essay in Legal Theory (Oup 2007) 104, footnote 8.
192. John Finnis, e.g., credits Raz with having 'identified' detached statements, which he also finds 'very common' e.g. 'in textbooks', 'professional opinions, advice, and arguments': cf. Natural Law and Natural Rights (Clarendon Press 1992) 235 and, in general, 233-37, 239, and 365. Raz's insistence on the non-conditional character of detached formulations is nevertheless overlooked in Finnis' characterization: cf. the formulations of 'S3' statements, e.g., in Natural Law and Natural Rights (Clarendon Press 1992) 235 or 365.
193. Cf., for just some examples, Gerald J. Postema, 'The Normativity of Law' in Ruth Gavison (ed) Issues in Contemporary Legal Philosophy (Clarendon Press 1992) 83, as well as David Lyons' 'Comment' in the same volume, at 122ff.
194. Jeffrey D. Goldsworthy, 'The Self-Destruction of Legal Positivism' (1990) 10 Oxford Journal of Legal Studies 450, 453.
195. Frederick Schauer, 'Fuller's Internal Point of View' (1994) 13 Law and Philosophy 287-89.
196. William N.R. Lucy, 'Criticizing and Constructing Accounts of Legal Reasoning' (1994) 14 Oxford Journal of Legal Studies 325-26.
197. Stephen R. Perry, 'The Varieties of Legal Positivism' (1996) Ix Canadian Journal of Law and Jurisprudence 371.
198. Leslie Green, 'Civil Disobedience and Academic Freedom' (2003) 41 Osgoode Hall Law Journal 395.
199. 'General Jurisprudence: A 25th Anniversary Essay' (2005) 25 Oxford Journal of Legal Studies 567-68.
200. Veronica Rodriguez-Blanco, 'Peter Winch and H.L.A. Hart: Two Concepts of the Internal Point of View' (2007) Xx Canadian Journal of Law and Jurisprudence 453ff (Rodriguez-Blanco casts detached statements as statements made from a 'practical point of view' - a 'second- or third-person standpoint' from which one may nevertheless have an 'understanding of what one ought to do' - which is distinct from the 'participant's point of view', even if both are often confused under the label 'internal': cf.
201. Gerald J. Postema, 'The Normativity of Law' in Ruth Gavison (ed) Issues in Contemporary Legal Philosophy (Clarendon Press 1992) 454, 460ff, 466ff., 470.
202. 'detached' and 'committed' are rendered as 'different perspectives' of the 'practical' viewpoint.
203. Hart's 'internal' point of view - though not Winch's - is, Rodriguez-Blanco argues, the 'practical' one, 'harmonious' with Raz's: Gerald J. Postema, 'The Normativity of Law' in Ruth Gavison (ed) Issues in Contemporary Legal Philosophy (Clarendon Press 1992) 469-70).
204. Kevin Toh, 'Hart's Expressivism and his Benthamite Project' offered a reconstruction of Hart's 'analysis' of committed, internal legal statements in The Concept of Law 89, incl. footnote 24, and 'Raz on Detachment' Legal Duty and Obligation', in his Essays on Bentham. Jurisprudence and Political Theory (Clarendon Press 1982) 407, 412, accepting that detached statements are made in legal as well as in ethical contexts, and finding 'much plausibility' in Raz's hypotheticals - although a later passage in 'An Argument Against the Social Thesis' 'Hart's Expressivism and his Benthamite Project' offered a reconstruction of Hart's 'analysis' of committed, internal legal statements in The Concept of Law 459-60 sounds more cautious in this respect.
205. Toh often speaks as if, at least when it comes to a detached statement 'made within the speaker's own legal system', it takes a 'disaffected or alienated' member of a community, a speaker 'whose normative commitments are deeply at odds with those embedded in the community's legal system', to utter a detached legal statement: cf. e.g. 'Raz on Detachment' Legal Duty and Obligation', in his Essays on Bentham. Jurisprudence and Political Theory (Clarendon Press 1982) 407ff.
206. John Gardner, 'Nearly Natural Law' (2007) 52 The American Journal of Jurisprudence 6-7.
207. 'Legal Reasons, Sources, and Gaps' (1970) 80 Ethics 54.
208. One may of course use the terms in the 'moral' sense while speaking of the law, and thus 'in the legal context', to state e.g. that on has a moral duty to do as the law requires: hence the proviso.
209. But this poses no problem at all for the 'sources thesis'.
210. The claim is explicitly made: cf. Practical Reason and Norms (first published 1975, OUP 1990) at 154, where Raz states that 'the use of so many normative terms such as "rules", "duties", "obligations", "rights" or "powers" to describe both laws and legal situations' is 'ample justification' for taking legal rules as reasons for action, and hence statements of law as statements of reasons for action.
211. Richard Holton, while leaning towards the acceptance of some version of Raz's 'committed'/'detached' distinction - which, he submits, might perhaps be more precisely conceived along fictionalist lines - nevertheless maintains not only that "'legally obligatory" and "morally obligatory" mean different things', but also (and quite rightly) that "'obligatory" has a different sense in each construction'. He therefore denies that the 'detached'/'committed' distinction is applicable to legal systems. Cf. 'Positivism and the Internal Point of View' (1998) 17 Law and Philosophy 617-18.
212. Hart speaks of a 'mistaken inference': cf. The Concept of Law Legal Validity' (1970) 80 7.
213. While he believed that the fact that 'law and morals share a common vocabulary' is due to 'no accident' (The Concept of Law Legal Validity' (1970) 8, 172), he insistently denied what he called 'the identity of meaning of normative propositions in legal and moral contexts': cf. 'Legal Duty and Obligation' Legal Duty and Obligation', in his Essays on Bentham. Jurisprudence and Political Theory (Clarendon Press 1982) 153. His idea was that terms like 'duty' or 'obligation' are 'legally coloured': their moral occurrences are to be explained by reference to their central legal meanings, and not the other way round. on the topic, see 'Legal and Moral Obligation', in A.I. Melden (ed) Essays in Moral Philosophy (University of Washington Press 1958)) 83.
214. The Concept of Law Legal Validity' (1970) 80 170ff, 203.
215. 'Problems of the Philosophy of Law', in his Essays in Jurisprudence and Philosophy Eugenio Bulygin, 'Enunciados Jurídicos y Positivismo: Respuesta a Raz' (1981), in Carlos E. Alchourrón and Eugenio Bulygin, Análisis Lógico y Derecho (Centro de Estudios Constitucionales 1991) 91-92.
216. 'Legal Duty and Obligation' Legal Duty and Obligation', in his Essays on Bentham. Jurisprudence and Political Theory (Clarendon Press 1982) 153, 160-61.
217. Cf. e.g. Juan Carlos Bayón, La Normatividad del Derecho Eugenio Bulygin, 'Enunciados Jurídicos y Positivismo: Respuesta a Raz' (1981), in Carlos E. Alchourrón and Eugenio Bulygin, Análisis Lógico y Derecho (Centro de Estudios Constitucionales 1991) 29-30.
218. Roger Shiner, Norm and Nature (Clarendon Press 1992) 143.
219. Cf. Timothy Endicott's survey in 'Law and Language', Stanford Encyclopedia of Philosophy (Fall 2010 Edition), http://plato.stanford.edu/archives/fall2010/entries/law-language, at 23-9 of the pdf version.
220. Practical Reason and Norms (first published 1975, OUP 1990) 170.