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Toh on Internal Legal Statements

By Lawrence Solum

Kevin Toh (University of Texas Law School) has posted Legal Judgments as Plural Acceptances of Norms (Oxford Studies in the Philosopy of Law, Vol. 1, 2010) on SSRN. Here is the abstract:

In this paper, I propose an expressivist analysis of internal legal statements that is a development of the analysis I find in H.L.A. Hart?s writings. My analysis portrays a speaker of an internal legal statement as aiming at initiation or maintenance of a certain form of coordination with his audience. More specifically, I argue that an utterance of an internal legal statement is an expression of a conditional co-native attitude by which the speaker displays his willingness to act in a particular way on the assumption that others have like or mirroring conditional commitments. Some have argued that expressivist analyses do not distinguish normative statements sufficiently clearly from attempts to goad or prod the audience in various non-rational ways. My analysis enables us to make this distinction quite clearly, and also thereby enables us to maintain Hart?s view that legal practices are fundamentally different from the kind of coercion-centered practices that Jeremy Bentham and John Austin conceived legal practices as being.

Highly recommended.

Full post as published by Legal Theory Blog on August 02, 2010 (boomark / email).