Legal Statements and Normative Language

Abstract

Can there be a non-reductivist, source-based explanation of the use of normative language in statements describing the law and legal situations? This problem was formulated by Joseph Raz, who also claimed to have solved it. According to his well-known doctrine of 'detached' statements, normative legal statements can be informatively made by speakers who merely adopt, without necessarily sharing, the point of view of someone who accepts that legal norms are justified and ought to be followed. In this paper I defend two theses. I argue, first, that the notion of a detached statement cannot be made to work, and that Raz's problem is thus not thereby solved. But the problem itself, I also suggest, is a false one.

Moore’s Paradox and Normative Detachment

“…Here, what is the non-Jewish friend really telling his friend? Surely his advice cannot be: ‘my dear friend you ought to follow rabbinical law.’ He is not telling him that he ought to follow rabbinical law (D’Almeida, 2011, pp. 167, 186).…”

“…Now let us turn to the vegetarian friend’s example. The non-vegetarian friend, again, cannot be advising the vegetarian friend that he should follow vegetarianism (D’Almeida, 2011, p. 186). The friend is not in doubt that he is supposed to follow vegetarianism.…”

“…His friend is vegetarian, and it is his commitment that he ought to be vegetarian. Rather the friend is informing him that this dish he is about to sample contains meat (D’Almeida, 2011, p. 186). Such statement as (V) merely conveys factual information about the contents of the dish and nothing more.…”

Legal Statements: Internal, External, Detached

“…Indeed, Raz's anti-reductionist strategy forces him to maintain the normative/descriptive ambiguity, which has elicited the puzzlement of many legal theorists (see Shapiro 2011, 415-416;Duarte d'Almeida 2011;Mullins 2018). Contrary to what Hart himself appears to have thought at some point (Hart 1983, 14; see also MacCormick 2008 p. 204), detached statements are not moderate external statements since they are to some extent normative and not merely descriptive; they do not only aim to describe the internal point of view, but to adopt it (without sharing it) in order to guide behavior (Postema 1987, 84).…”

Expresivismo Metajurídico, Enunciados Internos Y Aceptación Plural: Una Exploración Crítica

“…196 ss. Para una discusión tanto del estatus conceptual como de la utilidad teórica de esta noción véase Bulygin, 1991;Duarte d'Almeida, 2011;y Muffato, 2013. Isonomia_47.indb 44 12/10/17 13:23 exPResIVIsmo metAjuRíDIco, enuncIADos InteRnos... No. 47, octubre 2017, pp.…”