What are legal propositions anyway? A persistent misconception takes them to be the propositions expressed by perfomative statements of a peculiarly legal genre (call them legal exhortatives a la Adrei Marmor). More accurately, legal propositions are the truth-evaluable component (if it is available) of performative statements. The analogy that informs this association is frequently showcased by appeal to the case of promissory statements. When I utter the sentence I promise to X two things happen: 1. first I say something, 2. my saying so brings into existence something else (a valid promise). Proponents of the exhortative view argue that legal proposition just are the propositional content expressed by an exhortative utterance The law requires that X much in the same way that the utterance I promise to X expresses the proposition that I commit myself to acquiring the intention to do X. On this picture the truthmakers of these propositions are self-referntial facts about one does in his/her personal or official capacity such that the proposition that The law requires X is made true by the fact that a legal directive to the effect that X has been issued by an official body or person L. I believe that this line of reasoning is false mainly because it fails to see that what matters in terms of truth-evaluation is not what someone uttered but what is the constitutive impact of someones utterance. In this regard, besides the propositional content I promise to X there is ALSO the propsitional content As promissory utterance constitutes a promise to X. It is the latter content that is primarily of interest here. And the latter contents truthnakers are not self-referential at all! What explains or makes it the case that the proposition As promissory utterance constitutes a promise to X is true is the institutional or practice-based fact that a valid promise exists which is further grounded in other social-cum-normative facts! By the same token, what we purport to describe as legal propositions are not the contents expressed by statements of the form The law of S requires that X but the contents expressed by constitutive statements of the form a legal directive constitutes a legal norm of S. I beleive that the source of this erroneous association of legal content with the propsitional content of legal exhortatives lies in an unpronounced reliance on the analogy from nomic statements and nomic propositions/facts. In the latter case, a statement of a law of nature JUST IS a statement that expresses a propositional content featuring a relation of, say, nomic necessitation between properties (a la Armstrong). The reason that makes this transition seamless is that nomic statements are not performatives; in other words, laws of nature do not acquire their relevant force by virtue of a divine, so to speak, performative utterance. What, nevertheless, makes this analogy misleadingly informative is the fact that legal statements and nomic statements APPEAR to be statements about nomic facts of different but related sorts. This is to say that they are about the obtaining of normative or natural LAWS governing instances of a specific type. But this is like putting the linguistic cart before the metaphysical horse....
Posted on: Mon, 01 Sep 2014 09:37:22 +0000