Legal Statements: Internal, External, Detached

Abstract

This entry explores some issues surrounding legal statements in contemporary analytical legal philosophy. A statement such as "legally, you ought to φ" can serve a wide array of functions. For instance, it can both aim to give normative guidance to the addressee or merely to be informative of his or her legal obligations. This variety of functions is the reason behind the distinction between internal and external statements.

The first part of the paper gives an overview of this distinction in Hart's jurisprudence. It distinguishes between two distinctions: the internal/external aspects of rules on the one hand, the internal/external point of view on the other hand. Internal statements, which express the speaker's acceptance of the rule as a standard of conduct and as grounds for criticism of the behaviour of others, are statements uttered from the internal point of view, and, as such, are an essential component of the internal aspect of rules. External statements (statements from the external point of view) are descriptive statements which can either bear on the internal aspect (moderate external statements) or on the external aspect (radical external statements of rules). In the legal context, an internal statement need not express an acceptance of each and every rule in a piecemeal fashion: internal statements typically express the speaker's acceptance of the rule of recognition which picks out the criteria of validity of particular legal rules.

The remaining of the paper deals with three distinct, yet inter-related puzzles.

The second part explores the first puzzle, which I label "the Describability Problem". What does it mean to "describe" a norm? How is such a "description" different from the description of some underlying facts? This is a problem for anti-reductionist analyses of legal normativity, ie theories which refuse to reduce norms to facts. The locus of this problem is Hans Kelsen's theory of legal statements and his notion of a descriptive Sollen (descriptive ought). Joseph Raz's notion of detached statements aims to solve the puzzles raised by Kelsen's theory: detached statements are both descriptive (insofar as they intend to be informative of the addressee's rights and obligations) and normative, insofar as they aim to guide the addressee's behaviour. They adopt the point of view of someone who accepts the validity of the norm without sharing that point of view.

The third part deals with the second puzzle: is the acceptance of the rule expressed by internal statements a kind of moral commitment? According to Raz one cannot, without contradiction, uttering an internal statement without endorsing the view that one morally ought to do what the rule requires (whether the speaker is correct is another matter). Hart, on the other hand, claimed that the kind of normative acceptance expressed in internal statements are not necessarily paramount to moral endorsement. True, judges and other officials may accept the rule of recognition for moral reasons, but they may also do so for prudential reasons, or out of their self interest. According to Hart however, the acceptance at stake bears typically on the judge's being part of an institutional conventional practice, to which the judge commits without necessarily morally endorsing it. This explains why judges and other officials do not merely weakly accept the rule as a guide for their own action but also as grounds for criticising others' behaviour.

The fourth and last part deals with the third puzzle, which is, in some sense, foundational to the first two. It is about the semantics of legal statements, an issue which is usually seen as a bridge between meta-ethics and general jurisprudence. The question is whether legal statements (as a species of normative statements) have truth-values or whether they are merely used to express a non-cognitive attitude on the part of the speaker. In order to address it, the paper surveys various debates surrounding the role of expressivism in the analysis of legal statements, and whether the distinction between legal statements is semantic or pragmatic.

Keywords: legal statements; internal statements; external statements; detached statements; moral commitment; describability; Hans Kelsen; HLA Hart; Joseph Raz

JEL Classification: K00